The Defence of Provocation
In Western Australia, under the Criminal Code Act Compilation Act 1913 provocation is a defence to offences involving assault. The defence of provocation provides that a person is not criminally responsible for an assault committed upon a person who gives them provocation for the assault. This article outlines the operation of the defence of provocation in WA.
What Constitutes Provocation?
Section 245 defines provocation to mean and include any wrongful act or insult of such a nature as to deprive a person of the power of self-control and induce them to assault the person.
In Horlatsch v Thomas  WASCA 287 His Honour expressed that the word ‘incitement’ suggests a mental element and is the act of urging on or stimulating to action. His Honour continued to suggest that ‘incites’ includes solicits and an endeavour to persuade. The term ‘incitement’ conveys a notion of deliberation in causing another person to act to achieve a result desired by the incident.
Wrongfulness and unlawfulness
In Stingel v The Queen (1990) 171 CLR 312 the court interpreted the term “wrongful” to apply only to an ‘act’ and not to include ‘insult’. The court found that requiring an insult to be wrongful before it can amount to provocation would create unjustifiable difficulties especially in distinguishing a rightful insult from a wrongful insult.
Elements of Provocation
Section 246 of the Act states:
A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool.
Thus provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm.
Therefore, this defence requires there to be behaviour which is capable of amounting to provocation, which causes the accused to lose his or her self-control (subjective test) and which would have been likely to cause an ordinary person to lose their self-control (objective test).
What does not constitute Provocation?
A lawful act does not amount to provocation for the purposes of this defence. An arrest which is unlawful does not necessarily amount to provocation, but it may be evidence of provocation to a person who knows of its illegality.
Test for Provocation
The test for provocation is whether the court is satisfied that any wrongful act or insult of such a nature as to be enough to deprive an ordinary person of self-control, and which, in fact, deprives the accused of their self-control, is provocation, where the offender acted upon it suddenly, and before there has been time for his passion to cool.
Therefore, there is a two-part subjective and objective test for provocation:
- Whether the conduct of the victim caused the accused to lose control (subjective); and
- Whether the conduct could cause an ordinary person to lose self-control and react in the manner in which the accused reacted (objective).
Loss of the Power of Self-Control
When establishing a defence of provocation, the question is not whether there was some loss of the power of self-control, but whether this was of such an extent and degree as to provide an explanation for or to constitute to some extent an excuse for the acts causing the offence. The provocation must also have been of a character that was calculated to deprive an ordinary person of self-control to that extent.
In Moffa v The Queen  HCA 14 His Honour Gibbs J expressed that in deciding whether there is sufficient evidence of provocation, it is necessary to have regard to the whole of the victim’s conduct at the relevant time, as acts and words which considered separately could not amount to provocation may when combined or cumulatively, be enough to cause a reasonable person to lose self-control and resort to the kind of violence caused in the offending.
Partial Defence to Murder
In Western Australia provocation is a partial defence to murder and is restricted to the laws of homicide. Even though it is accepted that words alone can amount to provocation it will rarely be the case that words alone will be found sufficient to be provocative in relation to a defence to murder.
Provocation was developed as a defence in recognition of the psychological reactions which may have been set in motion by the deceased’s behaviour. The law recognises that this behaviour can be such that it would cause a ‘reasonable’ or ‘ordinary’ person to lose self-control. Therefore, if the defence of provocation is satisfied, the charge of murder may be reduced to manslaughter.
The two part subjective and objective test for provocation is derived from Stingel v The Queen (1990) 171 CLR 312 and requires the court be satisfied of the following:
- That the conduct that caused death was the result of the defendant’s loss of self-control induced because of conduct of the deceased towards or affecting the accused; and
- The conduct of the deceased was such as could have induced an ordinary person to have lost self-control to that extent as to have formed an intent to kill or cause serious harm to the deceased.
The Ordinary Person’s Test
The ordinary person’s test has two stages. The first is to assess the gravity (or seriousness) of the provocation. 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) when faced with provocation of that degree of seriousness.
Subjective Element of Provocation
In Stingel v The Queen (1990) 171 CLR 312 the High Court 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.
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