The Defence of Provocation

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The Defence of Provocation

Provocation is a defence which reduces the offence of murder to manslaughter. Even though there may be an intent to kill it can be deemed that, in some circumstances, it is not appropriate to be classified as murder. It is not saying the killing is justified or excused. What it is saying is that the circumstances, the response (which resulted in the killing) is within the normal range of behaviour of what can be expected of the ordinary person and that it represents an acknowledgement of human frailty. This is the traditional view of the law.[1] When the penalty for murder was death, often provocation was a way of reducing the punishment from the death penalty to life imprisonment. In jurisdictions where there was a mandatory life sentence, there was also an argument for this defence to be in existence. [2] In this paper, the issues of the relevant stakeholders, previous provocation cases, and the law will be discussed in regards to any amendments or recommendations that need to be made in changing the current law in regards to the defence of provocation and how it will affect the Queensland society and its stakeholders.

One of the main issues with the defence of provocation include the timing between the act relied on as being provocative and the assault or killing is very important. The longer the time between the provocative act and the assault or killing the more difficult it is going to be to use the defence.[3] This time limit for the provocation defence has caused difficulties in the case of ‘battered spouse syndrome’. These are cases where one party to a relationship, usually the woman, puts up with serve physical, emotional abuse from her partner. Eventually she ‘snaps’ and acts violently towards her partner. Women in this situation, who have tried to use this defence, have often been unsuccessful in proving provocation. This applies only where the assault is proportional to the provocative act. So, killing a person because they are having a sexual relationship with their ex-wife/husband/lover has not usually been enough for the killer to rely on the provocation defence. However, sometimes the male of the relationship has been charged with the murder of their wives have successfully used the defence of provocation. This has been used the most particularly where the woman has left the marriage or relationship to start another sexual relationship with another man.

The stakeholders involving the issues of provocation include the victim, the defendant, legal personnel – judges, barristers, solicitors, crown prosecutors, medical staff, police officers and commissioners, jury, forensic pathologists and the coroners -, surrounding members of the community and martial partners. The law affects the victim’s family because of their ability to seek justice against the defendant. The defendant’s family is affected as their family may have lost the main income earner of that family, causing them to suffer. Medical staff, police officers, forensic pathologists and coroners are affected by the law.

According to the Criminal Code Act 1899 (Qld), section 269(1) states that a person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for the person’s passion to cool, and if the force used us not disproportionate to the provocation and is not intended, and is not such as likely, to cause death or grievous bodily harm. Whereas section 304(1) states that when a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.

The current law has...
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