The Defence of Provocation (WA)

The defence of provocation is available in Western Australia under the Criminal Code Act Compilation Act 1913 for certain assault offences. Essentially, this defence means that a person is not criminally responsible for an assault they committed if the victim provoked the assault. In this article, we will explore the operation of the defence of provocation in WA.

What is provocation?

Provocation is defined in section 245 of the Criminal Code Act Compilation Act 1913.

For the defence of provocation to apply, the victim must have committed a wrongful act or insult that was of such a nature that it deprived the accused of their power of self-control and incited them to commit the assault.

In the 1999 case of Horlatsch v Thomas, the WA Supreme Court held that the word ‘incitement’ implies a mental element, such as urging or stimulating someone to take action. The term also includes soliciting and attempting to persuade. Therefore, the concept of incitement suggests a deliberate effort to cause someone else to act in the desired way.

Wrongfulness and unlawfulness

In the 1990 decision of Stingel v The Queen 171 CLR 312, the court interpreted the term “wrongful” to apply only to an ‘act’ and not to include ‘insult’. The court found that requiring an insult to be wrongful before it can amount to provocation would create unjustifiable difficulties especially in distinguishing a rightful insult from a wrongful insult.

What does not constitute provocation?

A lawful act does not amount to provocation for the purposes of this defence. An arrest which is unlawful does not necessarily amount to provocation, but it may be evidence of provocation to a person who knows of its illegality.

Test for provocation

For an act or insult to constitute provocation, it must be severe enough to have deprived the offender of self-control and led to the assault. Establishing a defence of provocation requires an assessment of whether accused’s loss of self-control was significant enough to provide a partial explanation or excuse for the actions that caused the offence. Additionally, the provocation must have been severe enough to deprive an average person of their self-control to that degree.

In Moffa v The Queen [1977] HCA 14, Gibbs J stated that when determining whether there is sufficient evidence of provocation, the victim’s entire behaviour at the relevant time must be taken into account. Even if the individual acts or words are not enough to constitute provocation, when they are considered together, they could cause a reasonable person to lose self-control and engage in violent behaviour that led to the offense.

Partial defence to murder

In Western Australia, provocation is a partial defence to murder. Although verbal communication alone may qualify as provocation, it is rare that it would be adequate for a murder defence.

The provocation defence emerged from an understanding of the psychological responses that the victim’s conduct could provoke. The law acknowledges that such behaviour could be severe enough to cause an “ordinary” person to lose their self-control. As a result, if the provocation defence is established, a murder charge may be reduced to manslaughter.

The legal standard for provocation is based on Stingel v The Queen (1990) 171 CLR 312 and consists of two elements. The court must confirm the following:

• The behaviour that led to the death was a result of the defendant losing self-control due to the victim’s actions or behaviour towards them.
• The victim’s actions were severe enough to cause an ordinary person to lose self-control to the point of forming an intent to cause serious harm or kill the victim.

The ordinary person test

The “ordinary person” test has two steps. The first step is to evaluate the severity or seriousness of the provocation. The second step is to determine whether an average person could lose their self-control and form the intent to kill or cause significant physical harm when confronted with such a level of provocation.

Subjective element of provocation

According to the High Court’s ruling in Stingel v The Queen (1990) 171 CLR 312, “the nature and degree of the provocative conduct should be evaluated from the accused’s perspective.” The jury’s task is to determine whether an average person could have lost self-control to the same extent as the accused.

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