Clients of criminal defence lawyers in Queensland find themselves in a unique position. Australia’s Sunshine State is the only jurisdiction where provocation is considered a full defence to an assault charge.
This means that someone who admits to having assaulted a victim can emerge from prosecution scott-free – if his criminal defence lawyer successfully argues that ‘provocation made him do it.’
The Definition of Assault
According to section 245 of the Queensland Criminal Code, assault is when a person “strikes, touches, moves, or applies force of any kind to another person.” Assault is considered unlawful and constitutes an offence. Exceptions arise when circumstances exist that render the assault justified or excused by law. Having a valid defence like provocation is one such circumstance.
The Defence of Provocation
Sections 268 and 269 of the Criminal Code list the requirements for successfully relying on the defence of provocation:
- The provocation that sparked the assault must have deprived the defendant of all self-control;
- The defendant must have acted in the heat of the moment and before time passed – during which he could have “cooled off”;
- When committing the assault in response to provocation, the defendant should not have used more force than is proportional to the provocation;
- Lastly, the assaulter should not have intended to cause grievous bodily harm.
When Will a Defendant’s Assault Following Provocation Be Justified?
Courts consider the following factors, listed in section 269(2) of the Criminal Code, in deliberating on the provocation defence:
- Whether any ordinary person in the defendant’s position would lose their power of self-control in the face of the provocation;
- Whether normal persons in the defendant’s shoes would react by assaulting the provoker;
- The provoked party must truly have lost his self-control; and
- The force used must not be disproportionate to the provocation.
Section 304(9) of the Criminal Code indicates that the onus falls upon the defendant to prove the elements of the defence.
Assault Defence in Preventing Repetition of an Insult
An assault might be lawful if the force used was reasonably necessary to prevent a provocatory insult from being repeated. According to section 270 of the Criminal Code, the defence will apply as long as:
- The insult was truly provocatory; and
- The force-directed was not intended nor likely to cause death or grievous bodily harm.
Provocation in Murder Cases
The same defence may be applied to murder charges, but the outcome will be different. When a legal representative argues the defence of provocation on behalf of his client, sections 268, 269, and 304 require that the following must be proven:
- That the defendant acted in response to provocation;
- That response was in the heat of the moment; and
- That his client had lost self-control.
A successful outcome will be a conviction of manslaughter – an alternate charge to the initial and more serious murder charge.
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