LEARN ABOUT OTHER DEFENCES
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s269 Criminal Code 1899 provides a person is not criminally responsible for an assault if they were provoked. Provocations has a specific leglal meaning.
How the defence works.
Although described as a defence, the onus is on the prosecution to prove beyond reasonable doubt that a person did not act under provocation if that possibility is raised on the evidence.
The elements of the defence are:
1. A wrongful act or insult by the complainant.
2. That the wrongful act or insult would cause an person to lose control.
3. That the defendant actually lost control.
4. The defendant acted on the provocation and before their “passion cooled”.
5. The force used was proportionate to the provocation.
An ordinary person has ordinary human weaknesses and emotions common and the level of self-control of someone the defendant’s age. The inquiry assumes the ordinary person was provoked in the same way as the defendant.
In deciding whether a defendant lost control a jury of Magistrate must consider must consider how the provocation effects the individual defendant considering age, race, colour, other physical attributes, culture, habits, personal history and relationships. What is innocuous to one person is highly provocative to another. A history of acts or insults might may be relevant.
When the defence applies.
The defence only applies when an assault is an element of an offence. Grievous bodily Harm and Wounding are offences of violence but do not include an element of assault. Provocation is there not available as a defence for those offences.