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Peniamina v The Queen [2020] HCA 47 (9 December 2020)

This case involves the appellant charged with murder by killing his wife. The appellant now questions the Court’s interpretation of S.304(3) of the Criminal Code.


This appeal concerns the partial defense of provocation, which operates to reduce what would otherwise be murder to manslaughter, under S.304 of the Criminal Code. The contest between the parties in this Court is thus a contest as to the proper construction of S.304(3) of the Code.

S.304(3) of Criminal Code excluded defense of provocation in case of unlawful killing of accused's domestic partner where sudden provocation "based on" anything done, or believed to have been done, by deceased to end or change nature of relationship or indicate in any way that relationship may, should or will end or change.

The appellant argued that the majority in the Court of Appeal erred because the "sudden provocation" to which S.304(3) refers can be identified only by reference to the particular provocative conduct relied on by the accused for the purpose of raising the partial defense under S.304(1). Because the conduct of the deceased which the appellant identified as having caused the "sudden provocation" was the deceased brandishing a knife and then cutting the appellant's hand, S.304(3)(c) could not be engaged.

The respondent submitted that the language of S.304(1), which speaks of the act which caused death being "caused by  sudden provocation", stands in stark contrast with the language of S.304(3), which contemplates that "the sudden provocation is based on anything done by the deceased".

The respondent submitted that the difference in language reflected a legislative intention to exclude the availability of the partial defence of provocation where, upon the factual inferences available on the evidence, the circumstances referred to in sub-s (3) cannot be excluded by the accused as having contributed to the killing of the deceased.

Issue: Did the Court of Appeal err in interpreting S.304 of the Criminal Code?


  • Criminal Code S.304(1), (2), (3), (7).


In S.304(3)(c), the phrase "sudden provocation ... based on anything done by the deceased" refers not to the motivation of the victim that informs or explains his or her conduct toward the accused, but to the potency of the acts of the victim as a possible foundation of the temporary loss of self-control on the part of the accused.

The text of S.304(3)(c) allows of the possibility that the "anything done" by the deceased might have occurred a considerable time before the act of the accused so long as it is one of the motivating factors which the sudden provocation is "based on".

So understood, S.304(3) refers neither to the motivation of the deceased in provoking the accused, nor to the immediate trigger of the accused's loss of self-control, but rather to the potency of acts of the deceased as a basis or foundation of the accused's loss of self-control that excludes the application of S.304(1).

It has been noted that the trial judge's directions were erroneous insofar as they put to the jury the prosecution case that the brandishing of the knife by the deceased was itself an ending of, or change to the nature of, the domestic relationship between the appellant and the deceased. However, the only ground of appeal in this Court was whether the operation of S.304(3) is limited to the provocative conduct identified by the appellant as the cause of his loss of self-control. Special leave was not granted to agitate a complaint about the terms in which the trial judge directed the jury in relation to the prosecution case, and no attempt was made in this Court to expand the appellant's grounds of appeal in that regard.

Conclusion: Therefore, the court orders to allow the appeal, the appellant's conviction be set aside and a new trial be had.

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