The Defence of Provocation
The defence of provocation can be relied on in certain contexts in some Australian states and territories. However, its application is generally very limited and in some jurisdictions, the defence no longer exists. This page deals with the defence of provocation in Australia.
What is provocation?
The defence of provocation is based on the principle that if a person was responding to significant provocation and lost their ability to control themselves, they should not be held accountable for their violent actions to the same degree as if they were acting without provocation.
Provocation is defined as a wrongful act or insult that is capable of depriving an ordinary person of their self-control and inducing them to commit a violent act.
Full defence or partial defence?
Several Australian states allow for a partial defence of provocation in response to a murder charge. In these jurisdictions, if an accused person who is charged with murder is found to have acted under provocation, they will instead found guilty of the lesser charge of manslaughter.
This defence recognizes that a person who commits a fatal act while their ability to control themselves is impaired due to provocation by the victim does not have the same level of culpability as someone who forms the intent to kill under other circumstances.
In Queensland and Western Australia, provocation is also a complete defence to an assault charge. Thus, if an accused charged with assault successfully relies on the defence of provocation, they will receive a full acquittal.
Defence of provocation in New South Wales
In New South Wales, the defence of provocation is a partial defence to a murder charge. If a person charged with murder was responding to extreme provocation, they will be convicted of manslaughter instead of murder. This is set out in section 23(1) of the Crimes Act 1900.
The defence in Queensland
In Queensland, the defence of provocation is a complete defence to a charge of assault and a partial defence to a charge of murder (resulting in the downgrading of murder to manslaughter).
Under section 269 of the Criminal Code 1899, a person is not criminally liable for an assault if the victim’s provocation deprived the accused of their self-control, and the force was not disproportionate and did not intend to cause death or serious injury.
Under section 268 of the Criminal Code 1899, a lawful act cannot be considered provocation for an assault.
Provocation is a complete defence to assault and a partial defence to murder in Western Australia.
If the victim provoked an individual in such a way that it deprived them of their self-control, that person would not be held responsible for an assault. This is provided that the force used was not disproportionate to the provocation and did not intend to cause death or grievous bodily harm.
Defence of provocation in the ACT
In the ACT, provocation serves as a partial defence to murder under section 13 of the Crimes Act 1900.
If the accused committed the fatal act in response to provocation and would have been found guilty of murder otherwise, the jury must acquit the accused of murder and instead find them guilty of manslaughter.
In the Northern Territory, provocation is a partial defence to murder and is set out in section 158 of the Criminal Code 1983.
Provocation in Tasmania
The defence is no longer recognized in Tasmania, having been abolished in 2003. Prior to 2003, provocation was available as a partial defence to murder.
In 2020, South Australia abolished the partial defence of provocation for murder charges.
Before 2005, the partial defence of provocation existed in Victoria to reduce a murder charge to manslaughter. However, this partial defence was abolished in 2005.
Criticisms of the defence
Critics of the defence of provocation argue that it can be used to justify violent responses from men to rejection and can result in victims being blamed for their own death. Supporters of abolishing this defence argue that intentional or reckless killing should always be treated as murder, regardless of the cause and that the actions or words of victims should not serve as an excuse for any person to commit such acts.
Supporters of the defence believe that it should be retained to acknowledge that individuals have different reactions to various types provocative behaviour and that these vulnerabilities should be recognised by the criminal law.
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