Assault charges can have devastating consequences to both the accused and the victim. There are times when someone has committed an offence of assault but can claim a defence that means they should not be found guilty of that assault charge.
This page is about the defense of provocation to an assault charge in Queensland.
What is Assault?
The Definition of assault in Queensland is;
A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person's consent, or with the other person's consent if the consent is obtained by fraud, or who by any bodily act or gesture1attempts or threatens to apply force of any kind to the person of another without the other person's consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person's purpose, is said to assault that other person, and the act is called an assault.
Assault includes the following:
applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
The laws says that an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law. The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.
What makes an assault unlawful?
Unlawful means not authorised, justified or excused by law. Therefore if you have a valid defence to the charge like provocation then the act of assault will be justified and excused by law and therefore a person should be found not guilty of the offence.
Where the evidence gives rise to a question of provocation, the onus is on the Crown to disprove that defence beyond reasonable doubt
What is the defence of provocation?
Provocation is defined in the Queensland Criminal Code as “...any wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered ...”
Our law provides that: When such an act or insult is done or offered by one person to another, the former is said to give the latter provocation for an assault.
The main factors for the defence of provocation are;
- whether the complainant has offered the defendant provocation for the assault;
- whether the defendant was deprived by the provocation of the power of self control;
- whether the defendant acted on the sudden and before there was time for their passion to cool; and
- whether their response to the provocation was proportionate.
It is a two-stage test for the jury or Magistrate to determine, firstly, if the particular act or insult was such as to deprive the ordinary person of the power of self-control, then to decide from the view point of the particular defendant if the defendant was in fact deprived of the power of self-control
The ordinary person is not assumed to be a saint. They are expected to have the ordinary human weaknesses and emotions common to all members of the community and to have self-control at the same level as ordinary citizens of their age.
This area of the law recognises that there does occur a snapping point where an ordinary person may do something that they would not dream of doing under normal circumstances.
An “ordinary person” is simply one who has the minimum powers of self-control expected of an ordinary citizen who is sober, not affected by drugs, and of the same age and sex as the defendant.
When will the defence of provocation fail?
If the prosecutor can prove any of the following beyond a reasonable doubt then the defence of provocation will fail;
- that the accused was not the subject of wrongful act or insult by the complainant; or
- that there was no provocation, bearing in mind how an ordinary person would be likely to react to the wrongful act or insult; or
- that the defendant was in fact not deprived by the provocation of the power of self-control; or
- the defendant did not act upon the sudden and before there was time for his passion to cool; or
- the force used by the defendant was out of proportion to the provocation; or
- Where appropriate, that the force used was intended and was likely to cause death or grievous bodily harm.
What types of actions by the complainant could amount to provocation
What words or actions could amount to provocation? Every circumstance will be different, certain conduct or words may not be insulting to some people but highly insulting to other people.
Typical things that might give rise to provocation are discussions of a persons;
- age
- race
- ethnic or cultural background
- physical features
- personal attributes
- personal relationships or past history
- sexual orientation
- gender
Provocation need not be just words it can include the actions of the complainant.
The defence of provocation in Queensland is a constantly evolving area of the law and one that only an experienced criminal defence lawyer can properly advise someone on.
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