Defences of Provocation, Self-Defence, And Prevention of Repetition of Insult

Our criminal law system does not exist only to punish offenders. It also exists to protect the accused, specifically in situations when someone compromises their safety.

Therefore, certain defences to charges exist.

For an Act to Constitute A Crime, The Act Must Be “Unlawful”

In Queensland, you will see the words “unlawfully” appearing in the legislation when describing an offence. This is especially the case for offences that result in some sort of physical harm.

Examples from the Criminal Code are as follows:

“A person who unlawfully assaults another is guilty of a misdemeanour”;
“A person who unlawfully assaults another and thereby does the other person bodily harm is guilty of a crime”;
“A person who unlawfully wounds anyone else commits a misdemeanour”; and
“A person who unlawfully does grievous bodily harm to another is guilty of a crime”.

The law holds something to be “unlawful” if it is not:

• authorised;
• justified; or
• excused by law.

If a court finds an act to be unlawful this means that a defence to the charge does not apply.

Pleading Not Guilty

When police charge someone with a criminal offence, the prosecution must prove all the elements of the offence beyond a reasonable doubt for the charge against an accused to be successful.

An accused can argue that the prosecution has not proven all elements of the offence.

The law provides some criminal defences that allow an accused to argue certain circumstances led to the offending that excuse or justify their behaviour. This means the behaviour was authorised and they are thereby not criminally responsible. In other words, they are not guilty of the offence.

A discussion of the most common defences to assault-type charges resulting in injury is below.

Provocation

The term “provocation” means 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 doing or offering the act or insult.

Under section 269 of the Criminal Code, a person is not criminally responsible for an assault committed upon a person, if the victim provoked the assault.

However:

• the provocation must have deprived the accused of the power of self-control; and
• they must have acted upon it suddenly before there was time for their passion to cool.

The force used must also have not been disproportionate to the provocation and the accused must not have intended to, or been likely, to cause death or grievous bodily harm.

What A Jury or Magistrate Would Have to Consider

To break it down, a jury or Magistrate will need to decide about all the following things, which are questions of fact:

• whether the complainant has offered the accused provocation for the assault; and
• if so, whether such act or insult is likely to deprive an ordinary person of the power of self-control and to induce the ordinary person to assault that person; and
• whether the provocation deprived the accused who is raising this defence of the power of self-control; and
• whether the accused acted suddenly, before there was time for their passion to cool; and
• whether the force used, or action taken is disproportionate to the insult offered; and
• if it was, whether the accused intended or was likely to cause death or grievous bodily harm.

The Defence of Provocation Is Not Applicable to All Charges

A person can only raise provocation as a defence if “assault” is an element of the original offence. This means that this defence does not apply to charges of grievous bodily harm or wounding.

It may, however, be applicable as a defence to a charge of common assault.

Burden of Proof

It is important to note there is no burden on an accused to satisfy the jury that the complainant provoked them.

Once an accused raises this defence, the burden is on the prosecution to satisfy the jury beyond a reasonable doubt that provocation does not apply.

Example of When the Defence of Provocation May Be Successful

An example of a case where provocation may be successful is if a complainant yelled persistent and derogatory insults at the offender and perhaps pushed them, instigating a physical altercation.

If in retaliation, the offender has punched the complainant once to an area of the body, the defence of provocation may be successful.

Example of When the Defence of Provocation May Not Be Successful

An example of where this defence may not be successful is if, in the same circumstances, a complainant has yelled persistent and derogatory insults and pushed an offender, instigating a physical altercation.

The offender has retaliated by punching the complainant multiple times to the face or pushed the complainant to the ground and commenced kicking them.

A Court is likely to hold this as a disproportionate response.

Self-Defence

In Queensland, there are two types of “self-defence” that an accused can raise.

The first is self-defence against an unprovoked assault. Under section 271 of the Criminal Code, a person can act in self-defence against another person who unlawfully assaults them (aka the accused) and they have not provoked that assault.

The second type of self-defence is under section 272 of the Criminal Code, whereby an accused can act in self-defence also in circumstances where they have provoked an assault from the complainant, who has then responded in a particular way.

To put it more simply, which type of self-defence a person can raise depends on whether the accused or the victim started the altercation.

Unprovoked Self-Defence

It is lawful for an accused to use such force to an attacker as is reasonably necessary to make an effective defence against an assault, where:

• the victim has assaulted the accused; and
• the accused has not provoked that assault.

The accused must not intend for the force used, however, and the force must not be such as is likely to cause death or grievous bodily harm.

This means the force used by the offender must be appropriate and proportionate. This is a question of law for a jury to determine.

Unprovoked Self-Defence Causing Death Or GBH

Where such force used by the accused has caused either death or grievous bodily harm, self-defence can still apply.

It is lawful to use any necessary force if:

• the nature of the assault is to cause a reasonable fear of death or grievous bodily harm; and
• the person defending themselves (the accused) reasonably believes that they cannot otherwise save themselves from death or grievous bodily harm.

Provoked Self-Defence

A person is not criminally responsible if:

• they (the accused) unlawfully assault another person or provoke an assault from another person; and
• the other person (the victim) responds by assaulting the accused with such violence as to cause reasonable apprehension of death or grievous bodily harm; and
• the victim’s actions induce the accused to believe that it is necessary for their preservation from death of grievous bodily harm to use force in self-defence.

This protection extends to cases where such force may cause death or grievous bodily harm to the victim.

Provoked self-defence does not apply where an accused first assaulted the victim with the intent to kill or do grievous bodily harm.

Burden of Proof

Like the defence of provocation, it is not up to an accused to prove that they were acting in self-defence.

Once an accused has raised this defence and put it to the jury, the burden is on the prosecution to excuse the possibility that the accused acted in self-defence.

If the prosecution cannot do this, a jury must find the accused not guilty and acquit them of the offence.

Real Experience

Our firm recently represented a client charged with:

• two counts of assault occasioning bodily harm; and
• one count of grievous bodily harm.

The matter proceeded to trial before a jury in the District Court at Brisbane.

We ran an argument of unprovoked self-defence on the basis that:

• our client’s actions were in response to an attack which made him fear death or grievous bodily harm; and
• the force he used was reasonably necessary for defending himself; and
• he did not intend to cause grievous bodily harm to the victim.

The jury returned a verdict of not guilty for all charges and the Court discharged our client of the offences.

Prevention of Repetition of Insult

Section 270 of the Criminal Code makes it lawful for a person:

“to use such force as is reasonably necessary to prevent the repetition of an act or insult of such a nature as to be provocation to the person for an assault”,

if the person does not intend the force used, and it is not likely, to cause death or grievous bodily harm.

What A Jury Would Have to Consider

What is “reasonably necessary” is an objective question for the jury. It needs to be considered having regard to all the circumstances of the case.

The jury must determine:

• what the act or insult was;
• what the response was; and
• whether the response was reasonably necessary in those circumstances to make an effectual defence against the repetition of the act or insult.

The case of R v Hagarty 2001 [QCA] 558 supports this view.

Burden of Proof

Once an accused raises this defence, the burden is on the prosecution to satisfy the jury beyond a reasonable doubt that this defence does not apply.

The case of R v Major [2013] QCA 114 considered that the relevant question for the jury is whether the prosecution has proven beyond a reasonable doubt there was no reasonable possibility of the complainant repeating the provocative act or insult. It does not require evidence that the complainant threatened to repeat the provocative act or insult, but rather that the prosecution has excluded that possibility of repetition.

Appearing in Court – Here to Help

Proper experience providing representation and advocacy for offences of violence is essential.

If you have been charged with an offence of assault or similar and believe you have a defence to the charge or may intend to plead not guilty, contact our office for advice and support.

We are focused on results for our clients and have experience appearing in all Courts across South East Queensland.

Our Criminal Defence Team can advise you if:

• you have been contacted by police concerning an investigation;
• you need to prepare to appear before the Court; or
• you would like to know about your prospects of defending a charge.

We are here to ensure you know everything you need to do to achieve the best possible outcome.

Aitken Whyte Lawyers can assist you with all criminal charges related to violence or assault.

To speak directly to a solicitor about your situation for advice or representation, call us on 07 5408 0655.

Office Location and Contact Details

Sunshine Coast
Maroochydore
Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Ph: +617 5408 0655
Fax: +617 3211 9311
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