In Queensland, there are three types of assault charges:
- Common Assault
- Assault occasioning bodily harm
- Serious Assault
These are serious criminal offences as all assault charges may attract a term of imprisonment.
This article focuses on two common defences to assault: Provocation and Self-defence.
What is Provocation?
According to s268 of the Queensland Criminal Code, provocation is:
“Any wrongful act or insult of such a nature as to be likely, when done to an ordinary person…to deprive them of the power of self-control, and to induce to person to assault the person by whom the act is done.”
This means there must be both a loss of self control and provocative conduct for any claim of provocation to have merit.
Does Provocation provide a complete excuse?
Under the Code, provocation provides a complete defence with relation to assault.
This means that although it doesn’t make the act lawful, it does absolve you of any criminal responsibility with relation to the assault.
When is Provocation unavailable as a defence?
If you are charged with bodily harm, grievous bodily harm (GBH) or wounding you cannot rely on provocation. It can also provide a partial defence for a murder charge.
Who must prove the Provocation defence?
If you want to rely on a provocation defence for an assault charge you must bring evidence to satisfy the court that there is a reasonable claim. The prosecution will then have to disprove this claim.
What is Self-Defence?
Self-Defence provides a defence which permits a person to physically defend with themselves, another, or property using reasonable force.
Who must prove Self-Defence?
If you’ve been charged with assault and want to rely on self-defence, you will firstly need to point to enough evidence to raise this defence. If you provided enough evidence for this defence to be raised, the prosecution must then prove beyond reasonable doubt that the assault was not in self-defence.
Section 272 Provoked Assault
If you provoked the assault, it will be necessary to establish that the individual you provoked responded with:
- Such violence as to cause reasonable apprehension of death or GBH,” and that;
- You responded by using force reasonably necessary for your preservation, including force that resulted in death or GBH.
For a provoked assault, the court will also consider:
- Did the accused believe that the force was necessary
- Need for retreat
- Excessive force
- Limitations that are placed by law on defensive force in a provoked assault.
Section 272 Unprovoked Assault
If there was no provocation, whatever action you take is deemed lawful as long as it is to the extent “reasonably necessary” to make an effectual defence against the assault (as opposed to provoked assault, which begins with an unlawful action).
For the court to determine whether the assault was provoked, they will have mind to the factors detailed above in “Provocation”.
For an unprovoked assault, the court will also consider:
- Other alternate strategies that may have been used in response
- Prior acts of the victim
- Presence of domestic violence in the situation
- need for retreat.
What is “reasonably necessary”?
The court applies an objective test in determining whether something is reasonably necessary and considers the following questions:
- What was the likely attack?
- Was the response reasonably necessary to make effectual defence against that attack?
What if the Self-Defence causes death of Grievous Bodily Harm (GBH)?
In the case of a self-defence that has resulted in death or GBH, the court will undertake a subjective analysis to determine whether you believed, on reasonable grounds, that the level of force used was necessary for you to survive the assault.
There are also distinct legal questions to be addressed where there is a mistaken belief of the amount of force required, protection of property, or where the self-defence is a defence of another. To find out more, contact our criminal defence lawyers..
To absolve a person of criminal responsibility for an assault charge, we consider the broad range of possible other excuses and defences in addition to the above defences. These include:
- Extraordinary emergency
- Immature age
- Arrest of the wrong person
- Surgical procedure
- Defence of property
Charged with Assault and need legal advice? Contact our Brisbane Criminal Defence Lawyers
It is important that you obtain legal advice as soon as possible if you or anyone you know has had an assault charge.
To speak to one of our Criminal Defence Lawyers, call us on (07) 3252 0011 or you can book a FREE 30-minute initial consultation.
This article was edited by Prini Avia.