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The Defence of Provocation in Perth

The defence of provocation in Perth and the rest of Western Australia is available in relation to offences involving assault. The defence is set out in section 245 and 246 of the Criminal Code Act. It provides that a person is not guilty of an assault if the act was committed in response to provocation by the victim. The article outlines the defence of provocation in Perth and elsewhere in WA.

What is provocation in Perth?

Section 245 defines provocation as a wrongful act or insult that is likely to deprive the person of their power of self-control and induce them to assault the person who has committed the act or insult. The wrongful act of insult may be directed towards the accused or to a close family member of the accused.

The test to be applied to determine whether an accused is not guilty on the basis of provocation is therefore partly objective and partly subjective. The accused must have lost their self-control (subjective test) and the provocative conduct must have been serious enough to have been likely to cause an ordinary person to lose their self-control (objective test). For the defence to succeed, the accused must have acted in response to the provocation suddenly and before there was time for their passion to cool.

What is not provocation in Perth?

A lawful act, such as a purely verbal insult, does not constitute provocation for the purposes of a defence in Perth or elsewhere in WA.

Partial defence to murder

Provocation in Perth and the rest of WA can be relied on as a partial defence to a charge of murder. If a person successfully argues that they killed the deceased in response to provocative conduct, this will result in a verdict of manslaughter rather than murder.

For the partial defence of provocation to succeed, the degree of the provocative conduct will generally be higher than that required in relation to an assault.

The ‘ordinary person’ test

There are two stages to the ‘ordinary person’ test. The first is to assess how serious the provocation was. The second is to consider whether an ordinary person could have lost self-control and formed an intention to kill (or cause grievous bodily harm) in response to provocation of that degree of seriousness.

Subjective element of provocation in Perth

In the 1990 High Court decision of Stingel v The Queen (1990), it was stated that ‘the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused’. The question for a jury is then whether an ordinary person could have lost self-control to the extent which the accused did.

Other defences to assault charges

A person charged with an offence that involves an assault may rely on a number of other legal defences. These include:

Self- defence

A person is not guilty of an assault if they are acting in self-defence or in defence of another person or of property. The defence of self-defence will succeed only where the amount of force used in self-defence is proportionate to the threat the accused believed they were facing at the time of the act.

Duress

A person is not guilty of an assault if they acted under duress. Duress exists where a person is ‘forced’ to commit an act by threats of death or serious harm if they do not comply with demands. For the defence of duress to succeed, the threat must still be acting on the accused’s mind at the time they carry out the act and the person making the threat must be capable of carrying it out immediately.

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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.
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