THE DEFENCE OF PROVOCATION: A LAW REFORM SUBMISSION
WORD COUNT: 2002
This law reform submission will examine the current laws in Queensland surrounding the defence of provocation. Through the incorporation of academic literature and legal documentation this paper will critically reflect and critique the current legislation and will present arguments in support of the abolition of the defence. Furthermore, this paper will present recommendations for a viable solution to the abolition of the current Queensland defence.
An Overview of the Problem & Current Legal Position in Queensland
In the Queensland Criminal Code provocation is defined as a set of events that could be justifiable to cause an ordinary person to lose self-control[footnoteRef:1]. In using this defence a criminal act is regarded as less morally blameworthy than an intentional, deliberate act of vengefulness[footnoteRef:2]. To determine an individual’s liability in a defence of provocation a test of reasonability is done through the fabrication of an ‘ordinary person’[footnoteRef:3]. This is to establish how a hypothetical person with ordinary prudence in society would act in the same or similar situational circumstances[footnoteRef:4]. Currently not all states in Australia include provocation as a valid defence within their criminal code[footnoteRef:5]. [1: Criminal Code Act 1899 (Qld) s 269.] [2: Ibid.] [3: J Philippides et al, Supreme and District Courts Benchbook (Supreme Court of Queensland, 2017) 91. ] [4: Ibid.] [5: Criminal Code Amendment (Abolition of Defence of Provocation) Bill 2003 (Tas).]
In Queensland provocation is a legitimate partial defence that can only be used in a murder charge whereby if successful the conviction is reduced to manslaughter[footnoteRef:6]. The Queensland Criminal Code differentiates murder and manslaughter by the circumstances of the case: murder being the killing of a person with intent to kill or cause grievous bodily harm and manslaughter being any other unlawful killing of a person that does not constitute murder[footnoteRef:7]. Furthermore a person convicted of murder must serve a sentence of life imprisonment and is not to be released sooner unless under exceptional parole circumstances outlined in the Corrective Services Act[footnoteRef:8]. In contrast, the conviction of manslaughter does not have a mandatory life sentence[footnoteRef:9]. Only in the case of manslaughter are mitigating and aggravating factors considered[footnoteRef:10]. Provocation is said to impact the quality of the individual’s state of mind and in-turn weakens their moral blameworthiness, however, the use of this defence has frequently been the topic of legal debate and societal outrage[footnoteRef:11]. [6: Criminal Code Act 1899 (Qld).] [7: Ibid.] [8: Corrective Services Act 2006 (Qld).] [9: Criminal Code Act 1899 (Qld). ] [10: Ibid.] [11: Andrew Hemming, Provocation: A Totally Flawed Defence That Has No Place in Australian Criminal ...