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The Defence of Provocation (Qld)

In Queensland, the defence of provocation can be used as a full defence to a charge of assault or as a partial defence to a charge of murder. The defence is codified in sections 268 and 269 of the Criminal Code Act 1899. In recent years, Queensland has debated whether it remains appropriate to retain the defence of provocation in modern society or whether it ought to be altered or repealed entirely.

What is provocation?

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

The defence of provocation can be relied on where the provocation was directed at someone other than the accused – for example, a family member.

In Queensland, provocation can be used as a full defence to assault. Provocation cannot be used as a full defence to assault in any other Australian jurisdiction.

Partial defence to murder

In Queensland, the defence of provocation can be used as a partial defence to a murder charge. If a person who has killed intentionally or recklessly can demonstrate:

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

The accused will be found not guilty of murder and guilty of the alternate charge of manslaughter.

While Queensland retains provocation as a partial defence to charges of murder, several other Australian jurisdictions have now abolished this defence.

Loss of control

The ‘loss of self-control’ referred to in the law of provocation is not literal. When a person loses control completely of their physical actions, they are acting involuntarily (or as an automaton) and cannot be held responsible under the criminal law. In a situation of provocation, the loss of self-control refers to a state where self-control would be difficult, but not impossible.

History of provocation

The defence of provocation has its origins in medieval times when it was seen as cowardly for a man to overlook an insult, whether it was a verbal insult or actions like adultery with his wife. If a man killed in these circumstances he was seen as blameworthy, but not deserving of punishment for murder.

Allegations of insults or rejection by a female partner are often advanced in provocation defences. The controversial ‘gay panic defence’, where a person accused of murder could be acquitted of murder and found guilty of manslaughter if they could show that the victim made an unwelcome homosexual advance to them, was only abolished in Queensland in 2017. Indignation about the continued existence of the gay panic defence until a few years ago led to a broader debate about the ongoing utility of the provocation as a defence in modern society.

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

Criticisms of the defence

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

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

Support for the defence

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

If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Armstrong Legal. 

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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