The Defence of Provocation
In some Australian states and territories, provocation can be relied on as a defence in certain contexts. However, in most jurisdictions, the application of the defence of provocation is quite limited and in some states it has been abolished altogether. This page deals with the defence of provocation in Australia.
What is provocation?
The defence of provocation is based on the idea that a person should not be held accountable for their violent actions to the same extent if they were responding to significant provocation by the victim and were deprived of their powers of self-control.
Provocation occurs when a person does a wrongful act or insult of a nature that is likely to deprive an ordinary person of their powers of self-control and induce them to commit a violent act.
Full defence or partial defence?
In many Australian states, a partial defence of provocation is available in response to a murder charge. In these jurisdictions, if an accused charged with murder is found to have acted under provocation, they will not receive a full acquittal but will instead be found guilty of the less serious charge of manslaughter.
This partial defence exists in recognition that a person who commits a fatal act when acting in response to provocation while their powers of self-control are compromised does not have the same level of culpability as a person who forms the intent to kill under other circumstances.
In Queensland and Western Australia, provocation can be relied on as a full defence to an assault charge. This means that if an accused charged with assault successfully relies on the defence of provocation, they will receive a full acquittal.
The defence of provocation in New South Wales
In New South Wales, provocation can be used as a partial defence to a charge of murder. If a person charged with murder was acting in response to extreme provocation, they will be found guilty of manslaughter and not of murder. This partial defence is contained in section 23(1) of the Crimes Act 1900.
Provocation in Queensland
In Queensland, the defence of provocation can be used as a full defence to a charge of assault and as a partial defence to a charge of murder (reducing murder to manslaughter).
Under section 265 of the Criminal Code 1899, a person is not criminally responsible for an assault if the victim provoked the assault in such a way that the accused was deprived of their self-control and the force used was not disproportionate and was not intended to cause death or serious harm.
Under section 264 of the Criminal Code 1899, a lawful act cannot be found to be provocation to an assault.
The defence in Western Australia
In WA, provocation exists as a full defence to assault and as a partial defence to murder. A person is not responsible for an assault if the victim gave him provocation for the assault that deprived him of his self-control provided that the force used was not disproportionate to the provocation and was not intended to cause death or grievous bodily harm.
Provocation in the ACT
In the ACT, provocation is a partial defence to murder under section 13 of the Crimes Act 1900.
If it appears that the accused committed the fatal act under provocation, and they would otherwise be found guilty of murder, the jury must acquit the accused of murder and find them guilty of manslaughter.
Provocation in the Northern Territory
In the NT, provocation is a partial defence to murder under section 158 of the Criminal Code 1983.
Provocation in Tasmania
In Tasmania provocation no longer exists as a partial defence to murder. This defence was abolished in 2003.
Provocation in South Australia
In South Australia, the partial defence of provocation in response to a murder charge was abolished in 2020.
Provocation in Victoria
Provocation used to be available as a partial defence to murder in Victoria, but this defence was abolished in 2005. Prior to 2005, the partial defence of provocation could be used to reduce a charge of murder to manslaughter in Victoria.
Criticisms of the defence
The defence of provocation has faced criticism from those who argue that it justifies violent reactions from men to rejection, and that it can lead to victims being held accountable for their own deaths.
Advocates of abolishing this defence argue that intentional or reckless killing should always be considered murder, regardless of what provoked it. They believe that no one should be able to excuse their actions by citing the actions or words of the victim.
Supporters of the defence believe it should be maintained to acknowledge that people have weaknesses and react differently to various forms of provocation.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.