Grounds of appeal: The Court of Appeal erred in holding that the exclusion of the defence of partial provocation pursuant to the exception in s304(3) was not confined to the provocative conduct of the deceased which the defence relied upon as causative of the appellant's loss of self-control. On appeal, the Queensland Court of Appeal held that the trial judge was entitled to direct the jury to consider whether the exception set out in s 304(3) excluded the availability of the partial defence under s 304(1). But the appellant’s case was that, for the purpose of s 304(1), his loss of self-control was ’based on’ the deceased “grabbing knife, threatening with it and cutting his right palm.” The jury found the appellant guilty of murder. The appellant killed his wife in circumstances that left it open to find he was angered by a belief that the deceased had been unfaithful and planned to leave him.

The issue raised by the appeal is whether in discharging this burden the appellant was required to prove that the provocation was not 'based on' anything done (or believed to have been done) by the deceased to change the relationship, notwithstanding that such conduct (or believed conduct) was not the conduct that he claimed had induced his loss of self-control. The 2011 amendments placed the burden of proof of the defence on the accused. Section 304 was amended in 2011 to exclude the defence (save in circumstances of a most extreme and exceptional character) in the case of the unlawful killing of the accused's domestic partner where the sudden provocation is “based on anything” done by the deceased, or anything the accused believes the deceased has done, to end or to change the nature of the relationship or to indicate in any way that the relationship may, should or will end or change. Facts: The appeal concerned the partial defence of provocation, which operates to reduce what would otherwise be murder to manslaughter, under s 304(1) of the Criminal Code (Qld).

Death by Arrogance by Bruce E. Dunn