Provocation: An Overview

HHG Legal Group, Senior Associate, Aaron Potts, discusses the use of provocation as a defence.

Provocation: An Overview

What is Provocation?

Provocation is a defence which can be used if you are charged with an assault. The defence Provocation is defined in section 245 of the Criminal Code Act Compilation Act 1913.

Criminal Code Act Compilation Act 1913.

What constitutes Provocation – ‘the Elements’?

Element 1

The first element is to identify some sort of insult that the alleged victim hurled at you (or your partner, your child or a family member of yours), before you assaulted them, such as a racial slur, or some offensive and/or immoral behaviour which they engaged in towards you (or your partner or your child or a family member of yours). For example, making a sexual advance towards your partner in your presence. It is very important to note that if you encouraged the victim to do an act,  the victim did that act and you then assaulted the victim, you can’t argue that you were provoked.

Element 2

The second element requires the court to be convinced that the insult or offensive behaviour was such that there’s a real possibility that an everyday person would lose control after hearing the insult or seeing the offensive behaviour, and strike the victim in the same way and to the same extent that you did. The court’s approach here is in two parts:

• First, the court will decide how bad the insult or offensive behaviour was from your perspective.
• Then, the court will ask itself: objectively speaking, how would an everyday person of your age have responded to that insult or offensive behaviour?

Element 3

The third element requires you to display to the court when, how and to what extent, you lost control following hearing the insult or seeing the offensive and immoral behaviour of the alleged victim.

The law requires that your conduct must have been spontaneous. So, for example, if the alleged victim insulted you and you then went home and thought about it and then assaulted them the next time you saw them, the court will find that you did not act spontaneously and therefore your Provocation defence will fail.

The law also requires you not to have overacted to the alleged victim’s insult or offensive and immoral behaviour. The court will objectively weigh the force you used against how bad the court thinks the victim’s insult or alleged and immoral behaviour was, having regard to your characteristics.

You also must not have intended to kill the victim or cause them life threatening injury and the courts will have to be satisfied that, looking at it objectively, the force you used wasn’t likely to kill the victim or cause them life-threatening injury.

Summary

If you can demonstrate to the court that a Provocation defence applies, then you will be found not guilty of the assault. This means that you won’t be punished for assaulting the ‘victim’ and won’t have a conviction for the assault recorded against your name. As far as the criminal law is concerned, it will be as if the assault never occurred.

If you have any queries, please feel free to contact our criminal law team for a consultation.

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*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.