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The History of the Partial Defence of Provocation to Murder in Queensland

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Section 304 of the Criminal Code Act 1899 (Qld) (‘the Act’) provides the defence of provocation. This section provides a complete defence to assault and a partial defence to murder. The partial defence, if successfully argued, does not discharge an accused from criminal liability altogether but reduces the offence to manslaughter.  

Section 304 states: 

  1. 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. 

According to s304(3), unless in exceptions circumstances, it will not apply in situations where: 

a. a domestic relationship exists between 2 persons; and 

b. one person unlawfully kills the other person (the deceased); and 

c. the sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done— 

i. to end the relationship; or 

ii. to change the nature of the relationship; or 

iii. to indicate in any way that the relationship may, should or will end, or that there may, should or will be a change to the nature of the relationship. 

In Queensland prior to 2016, an accused person could rely on section 304 by claiming what was colloquially called the “gay panic” defence. This meant that a person accused of murder could argue that the victim provoked them to kill because they made advances towards the accused in such a way that it caused the accused fear or anger. Consequently, a charge of murder could be reduced to manslaughter if successfully argued. This partial defence was also used in other controversial circumstances, such as a ‘nagging wife’ or a ‘perceived insult to honour. 

The use of the defence had been hugely criticised in previously years and considered to be discriminatory and not reflecting current societal values. Some experts even stated that it promoted a culture of ‘victim blaming’ and failed to hold perpetrators accountable for their actions. 

In light of that criticism, this use of section 304 was repealed in 2016 which had notable implications not only for the LGBTQIA+ community but for other victims of gender-based or domestic violence. The defence has not been completely repealed however, the instances where it could be applicable has been limited. 

In 2016, the Act was then amended to include the following exception to the defence of provocation:1 (s304(2) of the Act): 

“[The defence] does not apply if the sudden provocation is based on words alone, other than in circumstances of a most extreme and exceptional character.” 

The Criminal Law Amendment Bill 2017 (No. 6) 2017 (Qld) went further to amend section 304 of the Act to include:2 

(4) Further, subsection (1) does not apply, other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person; and 

(8) For proof of circumstances of an exceptional character mentioned in subsection (4), regard may be had to any history of violence, or of sexual conduct, between the person and the person who is unlawfully killed that is relevant in all the circumstances. 

In the opinion of the legislators, the amendments reflect society’s expectations that people control their temper and are responsible for their own actions, allowing the partial defence of provocation to be available only where it is truly appropriate and without discrimination. 

The law is not static and continues to evolve as society evolves; what was legally permissible and in accordance with societal values in years past may not be viewed the same way in years to come. 

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Edited by Ashleigh Fanning