Criminal law – provocation

High Court casenotes

In Peniamina v R [2020] HCA 47 (9 December 2020) the High Court was required to consider the partial defence of provocation as it operates under s304(1) of the Criminal Code (Qld) (the code).

Section 304(1) of the code provides that a partial defence of provocation is available where the accused “does the act which causes the death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool”.

The code then provides for two exceptions to the partial defence. First, under s304(2) of the code, the partial defence is not available (“other than in circumstances of a most extreme and exceptional character”), if the “sudden provocation” is “based on words alone”.

Second, under s304(3) of the code, the partial defence is not available (“other than in circumstances of a most extreme and exceptional character”) if the accused has killed someone with whom he or she was in a domestic relationship and the “sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done” to either end or change nature of the relationship.

Here the appellant and the deceased were married and had four young children. The deceased went on a long holiday to New Zealand with the children and, on her return, the appellant began to suspect that she had been having an affair during her holiday. The appellant searched through the deceased’s mobile phone and discussed his suspicions with relatives.

On the day that the deceased was killed, the appellant snatched the deceased’s mobile phone and, among other things, telephoned the man who had been messaging the deceased and said “horrible things” to him. The appellant subsequently stayed at a relative’s house for two to three hours and began preparing for the possibility that the deceased would leave him by creating his own email address and Facebook account.


When the appellant returned home he tried to talk to the deceased, the appellant said that the deceased looked like she didn’t care and told him to “stop talking shit”. The appellant then struck the deceased causing her to bleed from her mouth. The deceased went into the bathroom before going into the kitchen. The appellant heard the deceased open a kitchen drawer.

When the appellant walked into the kitchen he found the deceased holding a knife. The appellant attempted to grab the knife but the deceased pulled back the knife causing a deep cut to the appellant’s right palm. The appellant then managed to grab the knife and it was at this point that the appellant said that he thought he wanted to kill the deceased.

The appellant killed the deceased as she tried to get away by stabbing her numerous times and striking her twice with a concrete bollard, retrieved from the garden, when the deceased managed to get through the front door of their home and hide behind a car in the driveway. It was a ferocious attack witnessed by at least one of the couple’s young children.

When the police arrived the appellant telephoned his mother. He told his mother, among other things, “she cheat on me too many time, mum”. And when first asked what had happened, that same evening, the appellant responded in part “she cheated on me”.

At trial it was the appellant’s case that he killed the deceased after having been provoked by her threatening him with a knife and cutting him with it. It was the prosecution’s case that the appellant knew that the deceased’s conduct with the knife was done in the context of her trying to change the nature of the relationship and as such, pursuant to s304(3) of the code, the partial defence of provocation was not available to the appellant.

In his directions, the trial judge directed the jury to consider, among other things, whether the appellant had proven that s304(3) of the code did not apply. In particular, the trial judge directed the jury to consider whether something preceding the stabbing or the stabbing itself was an act done to change the nature of the relationship between the appellant and deceased.


The jury returned a verdict that the appellant was guilty of murder. The appellant unsuccessfully appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland on the ground that the trial judge erred in directing the jury of the necessity to consider s304(3) of the code in circumstances where it was the appellant’s case that his loss of self-control was not “based on” anything done (or believed to have been done) by the deceased to change the nature of their relationship.

Unsurprisingly, the focus of the argument before the Court of Appeal (and later in the High Court) was on the meaning of the phrase “based on” in s304(3). Morrison JA and Applegarth J, in separate reasons, construed the phrase widely. Their Honours held that the words “based on” in s304(3), in contrast to the words “caused by” in s304(1), invite consideration of whether the sudden provocation was, in fact, founded on something done by the deceased to change the nature of the relationship.

Put another way, s304(3) is not (on a wide construction) limited to the provocative conduct the appellant relied on at trial as being causative of his loss of control. McMurdo JA, in dissent, held otherwise. McMurdo JA advocated, instead, for a narrower construction of s304(3). McMurdo JA noted that the term “sudden provocation”, employed throughout s304, is a term of art concerned with, and related to, the accused’s temporary loss of self-control.

McMurdo JA considered that the term, “sudden provocation”, must have a uniform meaning throughout s304. From this, McMurdo JA reasoned that the words “based on” must be understood to refer to a causal relationship between the sudden provocation and the deceased’s conduct to change the nature of the relationship.

In the High Court, McMurdo JA’s reasons were closely examined. The majority, (Bell, Gageler and Gordon JJ) favoured McMurdo JA’s reasoning and allowed the appeal. Conversely, the minority (Keane and Edelman JJ), dissenting, explicitly rejected McMurdo JA’s reasoning and dismissed the appeal.

The majority conceded, at [14], that the words “based on” are capable of conveying a broader connection than one of simple causation but considered that there were good reasons for resisting a wider construction of s304(3). Here, the majority referred to the context of s304(3), and, in particular, the legislative history of the section and associated extrinsic materials.


The majority noted that ss304(2) and 304(3) were inserted into the code on the recommendations of the Queensland Law Reform Commission. The majority observed that the evident intention of s304(2) was to give statutory force to the common law principle that the defence does not apply where the accused’s loss of control was excited by words alone.

Plainly, the majority noted, the connection referred to in s304(2) is causal only (in the sense that it was the deceased’s words that induced the accused’s loss of control, not that they were immediate). The majority considered, at [15], that construing the term “based on” as meaning “caused or induced by” would give a “workable and coherent operation” of s304(3).

By contrast, the majority considered, at [16], the wider construction, preferred by Morrison JA and Applegarth J in the Court of Appeal, would give an uncertain operation to s304(3). This wider construction would necessitate an inquiry into the nature and extent of the connection required to invoke the section.

But the minority thought, at [87], that “(t)he deliberate contrast in the language used by the legislation points strongly against reading ‘based on’ as ‘caused by’”. The minority noted that “(t)he expression ‘based on’ clearly casts a wider net of connections than ‘caused by’”. And the minority considered, at [93] that, properly understood, s304(3) refers 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 s304(1)”.

The minority held, at [97], that s304(1) is informed by a policy choice by the legislature that a loss of self-control founded on a change, or the possibility of a change, in a domestic relationship is an unacceptable excuse for killing a domestic partner.

Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, 03 9225 8722, email The full version of these judgments can be found at

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