In Queensland, provocation can be used as a full defence to assault charges and as a partial defence to a murder charge. The defence of provocation is codified in sections 268 and 269 of the Criminal Code Act 1899. In recent years, Queensland has debated whether the defence of provocation remains appropriate in modern society or whether the defence ought to be altered or repealed entirely.
What is provocation?
Provocation is defined as any wrongful act or insult of a nature likely to deprive an ordinary person of their self-control and induce them to assault (the victim). The act done in response to provocation must be done in the heat of the moment and it must be proportionate to the provocation (Section 269).
The defence of provocation can be raised where the provocative conduct was directed at someone other than the accused, such as a family member.
In Queensland, provocation can be used as a full defence to an assault charge. Provocation does not exist as a full defence in any other Australian jurisdiction.
Partial defence to murder
Provocation can be used as a partial defence to a murder charge. If a person who has killed intentionally or recklessly can show:
- That they acted in response to provocation;
- That they acted in the heat of the moment; and
- That they had lost self-control
The accused will be found guilty of manslaughter rather than murder.
While Queensland retains the partial defence of provocation to a charge of murder, several other Australian jurisdictions have now abolished this defence.
Loss of control
The so-called loss of self-control is not literal. When a person loses control entirely of their physical actions, they are acting as an automaton and cannot be held criminally liable. The loss of self-control in a situation of provocation refers to a state where self-control would be difficult, but not impossible.
History of provocation
The defence of provocation arose in medieval times when it was considered cowardly for a man to overlook an insult to his masculinity, whether it be a verbal insult or actions such as adultery with his wife. If a man killed in such circumstances he was seen as blameworthy, but not deserving of punishment for murder.
Allegations of unwanted homosexual advances and insults or rejection by a female partner are commonly advanced provocation defences. The controversial ‘gay panic defence’, where a person accused of murder could be found guilty of the lesser charge of manslaughter if they could show that the victim made a gay sexual advance to them, was only abolished in 2017. Indignation about the continuing existence of the gay panic defence up until 2017 led to debate about the ongoing utility of the broader defence of provocation in modern society.
However, provocation can also be argued in circumstances where the accused has been the victim of domestic violence and kills the perpetrator, because of a reasonable belief that it was necessary to do so to protect themselves from death or grievous bodily harm.
Criticisms of the defence
Critics of the defence of provocation argue that it legitimises the violent responses of males to rejection and leads in some circumstances to victims being blamed for their own deaths.
Advocates of abolishing the defence say that anyone who kills intentionally or recklessly should be found guilty of murder, regardless of what provoked them and that no one should be able to use the actions or words of their victim to excuse the act.
Support for the defence
Supporters of the defence argue that it should be retained in recognition that people have frailties and react in different ways to different types of provocation. The fact that Queensland law provides for a mandatory life sentence for murder is also cited as a reason for retaining the defence, as it allows people who kill in extenuating circumstances to have the circumstances of their offending recognised.
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