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The Defence of Provocation In Brisbane

Updated on Oct 10, 2022 4 min read 175 views Copy Link

Fernanda Dahlstrom

Published in Aug 08, 2022 Updated on Oct 10, 2022 4 min read 175 views

The Defence of Provocation In Brisbane

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The Defence of Provocation In Brisbane

The defence of provocation in Brisbane can be relied on as a full defence assault or as a partial defence to murder. The defence of provocation is codified in the Criminal Code 1899 sections 268 and 269. In recent years, Queensland has debated whether it is still appropriate to have a defence of provocation in modern society or whether the defence should be changed or abolished completely.

What is provocation in Brisbane?

Provocation is defined as a wrongful act or insult serious enough to deprive an ordinary person of their self-control and assault the victim. The act that forms the basis of the charge must be done in the heat of the moment in response to provocative conduct and it must be proportionate to the provocation. (Section 269).

Provocation can be relied on as a defence where the provocative conduct was directed at someone other than the accused – such as a family member.

In Queensland, provocation can be relied on as a full defence to a charge of assault. Provocation cannot be relied on as a full defence to an assault charge in any other Australian state or territory.

Partial defence to murder

Provocation in Brisbane and elsewhere in Queensland can be used as a partial defence to a charge of murder. If a person has intentionally or recklessly killed another person and the defence can demonstrate:

  • That the accused was responding to provocation;
  • That the accused acted in the heat of the moment; and
  • That they lost self-control

They will be found not guilty of murder and guilty of manslaughter.

While Queensland law retains provocation as a partial defence in this situation several other states and territories have now abolished this partial defence to murder.

Loss of control

The ‘loss of self-control’ required for the defence of provocation to succeed is not total. When a person loses control of their physical actions completely, they are acting involuntarily (or as an automaton). This is a separate defence under criminal law. In a situation of provocation, the accused’s loss of self-control refers to a state where it would be difficult for the accused to exercise self-control, but not impossible.

History of provocation

The defence of provocation originates in medieval times when it was seen as cowardly for a man to overlook an insult from another man, whether it was a verbal insult or an actions like a person committing adultery with his wife. If a man killed under circumstances like these he was seen as blameworthy, but not to the same extent as for a murder.

Allegations of insults or rejection by a female partner of the accused are often advanced in provocation defences. The controversial ‘gay panic defence’, where a person could be acquitted of a charge of murder and found guilty of manslaughter in the alternative if they could show that the victim made an unwanted gay sexual advance to them, was only abolished under Queensland law in 2017. Public indignation about the gay panic defence led to a broader debate about the ongoing utility of provocation as a defence.

However, the defence of provocation can also be argued where a woman has been the victim of domestic violence and kills her abusive partner, because of a reasonable belief that doing so was necessary to protect herself from death or grievous bodily harm.

Criticisms of the defence of provocation in Brisbane

Critics of the defence of provocation argue that it legitimises men’s violent responses to rejection and can lead to victims of family violence being blamed for their own deaths.

Advocates of abolishing provocation as a defence say that anyone who kills intentionally or recklessly should be found guilty of murder, regardless of the circumstances and that no one should be able to rely on the victim’s actions or words to excuse such an act.

Support for the defence of provocation in Brisbane

Supporters of the defence of provocation in Brisbane and elsewhere in Queensland argue that it should be retained to recognise that individuals have frailties and may react to provocative conduct. The fact that Queensland law has a mandatory life imprisonment sentence for murder is also cited as a reason for retaining provocation as a defence, as this allows people who kill under extenuating circumstances to have the this recognised and a lesser penalty imposed.

If you require legal advice or representation in relation to provocation in Brisbane or in any other legal matter, please contact Go To Court Lawyers.

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Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

Published in

Aug 08, 2022

Fernanda Dahlstrom

Content Editor

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
Fernanda Dahlstrom

Fernanda Dahlstrom

Content Editor

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

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