The defence of provocation applies when a person loses self-control due to provocation and acts immediately, as long as the force used is not excessive or likely to cause serious harm.
In Western Australia, provocation can serve as a legal defence under the Criminal Code Act Compilation Act 1913 for offences involving assault.
Whether an act or insult would make an ordinary person lose self-control and assault the person who provoked them, and whether the force used is excessive, are questions of fact.
Below, we outline the operation of this defence and its key elements under WA law.
What is Provocation?
Section 245 of the Criminal Code defines provocation as any wrongful act or insult that could deprive a person of self-control, leading them to assault the provocateur.
In Horlatsch v Thomas [1999] WASCA 287, the court emphasised that the term ‘incitement’ involves an intentional act aimed at urging or persuading someone to act in a particular way. This interpretation highlights the deliberation behind actions that might lead to provocation.
Wrongfulness vs. Unlawfulness
In Stingel v The Queen (1990) 171 CLR 312, the High Court clarified that the term “wrongful” applies only to acts and not insults. Requiring insults to meet the “wrongful” threshold would create unjustifiable distinctions, making it harder to evaluate provocation in cases involving verbal abuse.
Elements of Provocation
Under Section 246 of the Criminal Code, the defence of provocation applies if:
- The accused was deprived of self-control due to provocation.
- The act occurred suddenly and before the accused had time to regain composure.
- The force used was proportionate to the provocation and was not intended or likely to cause death or grievous bodily harm.
The defence requires:
- Subjective Test – The accused must have genuinely lost self-control.
- Objective Test – An ordinary person must also have been likely to lose self-control under similar circumstances.
What Does Not Qualify as Provocation?
- Lawful Acts – Actions carried out lawfully, such as an arrest, do not amount to provocation.
- Unlawful Arrests – While unlawful arrests may not directly constitute provocation, they could serve as evidence of provocation depending on the accused’s knowledge of their illegality.
Testing Provocation
The test for provocation evaluates whether:
- The victim’s actions were sufficient to deprive an ordinary person of self-control.
- The accused lost self-control suddenly and before cooling off.
This two-step process assesses:
- Subjective Reaction – Did the accused lose control?
- Objective Standard – Would an ordinary person have reacted similarly?
Loss of Self-Control
When claiming provocation, the key question is whether the accused’s loss of self-control was significant enough to explain or partly excuse the offence. In Moffa v The Queen [1977] HCA 14, the court stated that cumulative actions and words—though individually insignificant—may collectively justify a loss of control.
Partial Defence to Murder
Provocation serves as a partial defence to murder, reducing the charge to manslaughter. While words alone can sometimes be provocative, it is rare for verbal insults to suffice in murder cases.
The defence acknowledges the psychological impact of provocative behaviour, where a ‘reasonable’ or ‘ordinary’ person might lose self-control.
Key requirements under Stingel v The Queen (1990) 171 CLR 312 include:
- The accused’s loss of self-control resulted from the victim’s actions.
- An ordinary person might have responded similarly, forming intent to harm or kill.
The Ordinary Person Test
The “ordinary person” test evaluates whether the provocation was severe enough to cause an ordinary person to lose self-control. It involves two steps:
- Assessing Severity – Evaluating the seriousness of the provocation and its potential impact on an average person.
- Evaluating Reaction – Determining whether an ordinary person could lose self-control and form the intent to kill or cause significant physical harm when confronted with such provocation.
This test ensures that the defence of provocation is assessed objectively, balancing individual circumstances with broader societal expectations.
Subjective vs. Objective Elements
The High Court in Stingel v The Queen (1990) 171 CLR 312 emphasised that provocation must be assessed both subjectively and objectively. A jury determines whether an ordinary person could have lost control to the same extent as the accused.
This dual assessment is necessary to ensure fairness and consistency in applying the defence of provocation. The subjective test focuses on the accused’s actual state of mind, examining whether they genuinely lost self-control due to provocation. The objective test, on the other hand, evaluates whether an ordinary person in similar circumstances could have responded in the same way.
The jury’s role is to identify:
- Personal Impact – Whether the accused’s reaction was influenced by the provocation in a way that can be understood within their specific context.
- Reasonable Reaction – Whether the response aligns with how an ordinary person might act under similar provocation, ensuring the defence is not misused to justify disproportionate or excessive actions.
By combining these perspectives, the law balances individual circumstances with broader community standards, maintaining accountability while recognising human limitations.
Relevant Cases
Horlatsch v Thomas [1999] WASCA 287
In Horlatsch v Thomas [1999] WASCA 287, Horlatsch’s parked car was damaged, prompting him to approach a group of young people in a carpark for information. The interaction escalated when a 16-year-old girl threw Coke at him, leading Horlatsch to grab her hair and push her, causing minor injuries. Convicted of unlawful assault, Horlatsch appealed, arguing provocation and errors in the Magistrate’s decision. The appeal focused on whether his actions were a proportionate response to provocation, but the conviction was upheld.
Through this case, the Western Australian Supreme Court made several important rulings regarding the defence of provocation:
- The court emphasized that provocation involves a mental element, such as urging or stimulating another person to take action.
- For provocation to be valid as a defence, there must be an element of deliberate stimulation or persuasion that leads to the accused’s loss of self-control.
- The court considered the distinction between wrongful acts and insults in the context of provocation. It was noted that requiring an insult to be wrongful before it can amount to provocation would create unjustifiable difficulties, especially in distinguishing between lawful and unlawful conduct.
The case reinforced the two-part test for provocation:
- The conduct causing the offence must result from the accused’s loss of self-control, induced by the victim’s actions or behavior.
- The victim’s conduct must have been severe enough to cause an ordinary person to lose self-control to the extent of forming an intent to kill or cause serious harm.
The court emphasized the need to consider the entire context of the victim’s conduct when assessing provocation, recognizing that a series of minor provocations, when combined, can have a profound impact on an individual’s state of mind.
The Western Australian Supreme Court ultimately dismissed Horlatsch’s appeal, finding that while the provocation defence was raised, the response was disproportionate to the provocation, upholding the conviction for unlawful assault.
Stingel v The Queen (1990) 171 CLR 312
In Stingel v The Queen (1990) 171 CLR 312, Stingel was charged with murder following a violent altercation involving his former partner. The case arose after Stingel learned that his former partner had entered into a new relationship, leading to feelings of anger and humiliation. This emotional turmoil culminated in Stingel’s actions, prompting him to claim provocation as a partial defence to the murder charge.
The High Court of Australia made several important rulings regarding the defence of provocation:
- Subjective and Objective Tests – The court emphasized that provocation must be assessed using both subjective and objective standards.
- Subjective Element – The court examined whether the accused actually lost self-control due to provocation.
- Objective Element – The court evaluated whether the provocation was sufficient to cause an ordinary person to lose self-control and act in the same manner as the accused.
Key Findings:
- Provocation must involve conduct capable of inducing an ordinary person to lose self-control, but subjective factors such as age and sex of the accused may also be considered.
- Personal idiosyncrasies unrelated to age or gender, such as heightened sensitivity, are excluded to maintain an objective standard.
- The defence cannot be justified purely by words or minor provocations unless they cumulatively affect the accused’s emotional state.
- The proportionality of the response must be evaluated, requiring courts to determine whether the reaction exceeded what an ordinary person might have done.
This case clarified that the concept of the ‘ordinary person’ standard must strike a balance between subjective experiences and community expectations, ensuring fairness without endorsing overly sensitive or disproportionate reactions.
The High Court ultimately dismissed Stingel’s appeal, upholding the murder conviction and confirming that the defence of provocation was not applicable in this case because the response was deemed excessive and outside the scope of ordinary behaviour.
Moffa v The Queen [1977] HCA 14
In Moffa v The Queen [1977] HCA 14, Moffa was charged with murdering his wife after an argument about infidelity. He claimed provocation, arguing her statements caused him to lose self-control. The case established that provocation can arise from cumulative conduct, where repeated words or actions build up and lead to a loss of self-control.
The High Court applied subjective and objective tests to assess whether provocation caused a loss of self-control:
- Subjective test – Did the accused genuinely lose self-control?
- Objective test – Would an ordinary person in the same situation have reacted similarly?
The court emphasized that provocation must be judged in context, taking into account the accused’s emotional state and the immediacy of the reaction.
Ultimately, the High Court upheld Moffa’s conviction, finding the response was disproportionate to the provocation and did not meet the legal requirements for the defence.
Conclusion
Provocation remains a complex yet significant defence under WA law, balancing subjective reactions with objective standards. While it offers a legal avenue for mitigating responsibility, its application requires careful consideration of the circumstances.
If you need legal advice or representation regarding provocation or related matters, contact WN Legal for professional assistance.
**Please Note**
The material provided here is for informational use only and does not constitute binding legal advice. You should not use this information as a replacement for an individual consultation with a trained legal professional.
