(08) 9278 2575Provocation
The legal defence of provocation may apply when a person loses self-control after being provoked by the victim.
Provocation under section 246 of the Criminal Code Act Compilation Act 1913 (WA) (“the Code”) operates as a complete legal defence to a charge of assault and also acts as a ‘partial defence’ for reducing a murder charge to a charge of manslaughter.
The following paragraphs outline what the law of provocation is, in what circumstances it will act as a complete defence for assault and when it will act as a partial defence for murder.
What is Provocation?
Provocation is defined under section 245 of the Criminal Code Act Compilation Act 1913 (WA) (“the Code”) as any wrongful act or insult of such a nature as to be likely to deprive an ordinary person of self-control.
The concept of provocation applies in relation to offences where assault is an element. Provocation can arise when a wrongful act or insult is directed at the accused and the accused is then deprived of the power of self-control which induces him to act on the sudden and without time for his passion to cool and assault the person who did the wrongful act or made the insult.
Examples of provocative conduct may include insulting remarks, physical acts, abuse of a loved one, desecration of property or sacred symbols or acts of infidelity.
Provocation as a Defence to Assault
Under section 246 of the Code a person may rely on the defence of provocation to avoid criminal responsibility for an assault, provided the following elements are met:
- The person was deprived of self-control due to the provocation; and
- The person acted on the provocation suddenly, without time for their passion to cool; and
- The force used in response to the provocation was not disproportionate to the wrongful act or insult; and
- The force used was not intended to, nor likely to, cause death or grievous bodily harm.
Where the facts demonstrate that a defence of provocation might be made out, the court is required to consider and determine the issue by applying the appropriate burden of proof. This is the case even when neither the prosecution nor the defence have expressly raised the issue.
If properly raised by the evidence in a trial and the prosecution fail to disprove (or negate) the evidence, it results in a finding of not guilty and a judgment of acquittal.
Provocation as a Partial Defence to Murder
Provocation will act as a partial defence to murder in WA, reducing the charge to manslaughter if the defendant can show that they lost self-control due to the victim's provocative conduct.
The legal standard for this partial defence was outlined in Stingel v The Queen (1990) 171 CLR 312 as requiring:
- The victim’s provocative act actually led the defendant to lose control (a subjective test); and
- The victim’s actions were severe enough to cause an ordinary person to lose self-control to the point of forming an intent to cause serious harm or kill the victim (an objective test).
As provocation must be severe enough to cause an average person to lose control and form an intent to harm or kill, verbal insults rarely qualify, however acts like threats, infidelity, or persistent abuse may be sufficient.
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