The Defence of Provocation

The Queensland Law Reform Commission (QLRC) is currently examining a number of defences available under our criminal law. One of these is the defence of provocation and whether this defence should be amended or removed entirely. The QLRC’s review is still in the early stages, with its final report and recommendations expected to be provided in December 2025.  In the meantime, all defences, subject to the review, including provocation remain available to those charged with relevant criminal offences.

Our office frequently receives enquiries from people charged with criminal offences who may wish to raise the defence of provocation.  This article aims to answer some of the commonly asked questions such as when provocation can be raised and what is actually required to successfully raise the defence of provocation.

When can the defence of provocation be raised?

Provocation can be raised as a complete defence to offences of common assault, assault occasioning bodily harm and serious assault. A separate partial defence to murder for killing on provocation is also available. The defendant in either circumstance must have been subjected to a wrongful act or insult from the complainant/deceased which was serious enough to cause an ordinary person to lose self-control and assault the complainant/deceased.

How can the provocation defence be applied to assault?

A person can be absolved entirely from criminal responsibility if one person assaults another, who has “provoked” the assault.

The assault is provoked if:

• The defendant being an “ordinary person” is deprived of the power of self-control;
• Commits the assault immediately, and before there is time for passion to cool;
• The force used is not disproportionate to the provocation; and
• The force used is not intended and is not likely to cause death or grievous bodily harm.

Should provocation be raised in this circumstance, the prosecution must exclude the defence beyond a reasonable doubt. Failure to do so entitles the person charged to be found not guilty of the charge.

What is meant by “ordinary person”?

An “ordinary person” is a person with ordinary human weaknesses and emotions common to all members of the public, with the same level of self-control as an ordinary person of the defendant’s age.

Consideration must be given however to the content and extent of the provocative conduct from the viewpoint of the defendant. Factors in this regard include the defendant’s age, sex, race, physical features, personal attributes, personal relationships and past history. Each of these could be relevant to an objective assessment of the gravity of a particular wrongful act or insult as it applies to the person charged.

There is a nasty history between the defendant and complainant, is this relevant?

Yes it is.

In considering whether the defendant was in fact deprived of the power of self-control by the wrongful act or insult, the conduct or words in question must be viewed as a whole in light of any history or dispute between the defendant and complainant. Particular acts or words which, considered separately, could not amount to provocation may, in combination, be enough to cause the defendant to lose self-control in those circumstances.

How do you determine whether the level of force used was proportionate?

There is no one answer to this question. It will depend on the facts and circumstances of each particular case.

As a matter of principle however, the relevant circumstances of a case can include the physical attributes of the person offering the provocation, the nature of the attack, whether a weapon was used, what type of weapon and whether the person was alone or in company.

An extreme example would involve one person pushing or punching another person as provocation, and in response, the second person responds by shooting. This would clearly be disproportionate.

How does the defence differ in relation to a charge of murder?

If a defence of provocation to be successfully raised in relation to a charge of murder, then the person charged will be guilty of manslaughter only. In other words, the defendant does not avoid a level of criminal responsibility.

In order for the defence of provocation to be successfully raised in a murder matter, the defendant must have caused the death of the deceased:

• In the heat of passion;
• Caused by sudden provocation; and
• Before there is time for passion to cool.

Unlike defence to assault, provocation as a defence to murder will not be available in any of the following circumstances unless the case is one of “exceptional character”:

• The provocation is based on words alone;
• The provocation is in response to anything done by the deceased to end or change their domestic relationship with the defendant; or
• An unwanted sexual advance.

When a person is charged with murder, the onus of proof switches from the prosecution having to prove the defence is not open to the defence proving that the defendant is liable to be convicted of manslaughter only. If successful, this could mean avoiding the mandatory sentence of life imprisonment for conviction of murder.

What is the key takeaway?

Regardless of the charge, whether that be assault or murder, meticulous planning is required to objectively assess the defendant’s prospects of raising the defence of provocation. This planning commences months, sometimes years before a trial, with careful consideration dedicated to the evidence to be obtained, and which witnesses to be called.

Expert legal advice is required to ensure that the Court hears all evidence that may be relevant to successfully raising the defence of provocation. At Potts Lawyers we have extensive experience in assessing and providing advice as the prospects of raising the defence of provocation.