Self defence and provocation cases are a difficult area of law. The arguments suggest that an incident resulting in serious injury, harm or death may have actually occurred due to the actions of the victim. Conversely, the offender could actually be the victim whose actions were a result of fear for their own personal safety.
Self defence in particular is a complex argument which takes into account a range of different factors. Each criminal defence must be considered against the circumstances specific to the matter and then compared to relevant case law to see whether the defence is applicable.
You should seek advice from an expert criminal lawyer in Sydney immediately if you seek to make a self defence argument or are involved in a provocation case. Criminal charges are not a matter which should be taken lightly. If you need help now, call (02) 8806 0866 or contact us.
What is criminal responsibility?
Criminal responsibility refers to whether an accused should be considered responsible for their actions which have breached the criminal code. If the accused’s action in this instance has resulted in an assault committed, grievous bodily harm or death then, pursuant to the Crimes Act 1900 (NSW), those actions must be punished.
Criminal responsibility considers a range of factors and, critically, intent, force and provocation must be weighed. It is not considered normal human behaviour for individuals to commit violence, therefore an understanding of the accused’s actions is required.
If a defence is proven to the extent that criminal responsibility cannot be established then the accused person is not criminally responsible. However, a defence of self defence or provocation may only be accepted as a partial defence and therefore may only explain part of the defendant’s actions.
Usually, this is the case where the violence is considered necessary but disproportionate. For example, strangulation as a response to a punch to the jaw. The force used in self defence must be proportionate to the force being responded to. A full defence means the violence is accepted as being a proportionate response. For example, a hit to the head with a fire extinguisher resulting in a fractured skull may be a proportionate response to strangulation where the victim was struggling to breathe.
Ultimately, it is not a one-size-fits-all scenario and each legal matter needs to be assessed against its own circumstances before the court. For a step-by-step overview of court stages, see our guide to NSW criminal court procedures.
Self defence
Self defence is a complicated argument and it can only be made in particular circumstances. The basic premise argues that the individual had no choice but to defend themselves against a violent action with the use of a violent action to avoid injury or death. NSW has a statutory test for self defence in section 418 of the Crimes Act 1900, which asks whether the accused believed the conduct was necessary and whether the response was reasonable in the circumstances.
Self defence requires that the action taken to prevent or protect from an act of violence is proportionate to the situation at hand. Self defence aims to disarm or dissuade, not to cause permanent injury or death. Unfortunately, some cases may require a level of force that results in permanent injury or death, however this is not the aim. Excessive self defence that causes death can operate as a partial defence to murder under section 421, reducing murder to manslaughter where belief was genuine but the response was not reasonable.
An action of self defence must be proportionate to the threat at hand to be considered appropriate. An excessive use of force in response to a threat will not be considered self defence.
Case study
Alicia has been charged with grievous bodily harm against her father after they got into an argument on Christmas Day in New South Wales. Alicia says that her father struck her to the head with his fist and then pushed her against a wall and held her there with his hand around her throat. Whilst this action was intimidating, he was not squeezing so as to close off her airway.
Alicia feared for her life so she swung her fist and hit him to the side of the head. He released her neck and she dropped to the ground. Alicia then took a knife out of her back pocket and stabbed her father in the side twice. He fell to the ground holding his side.
Alicia left and her mother called an ambulance. Alicia caused permanent damage to her father because the laceration damaged his gallbladder and liver. The court considers that the initial punch Alicia delivered was in self defence, however the subsequent two stab wounds were an excessive use of force.
Alicia is found guilty of grievous bodily harm on the basis that her actions were not a reasonable response in the circumstances. Given her mental health history and low risk to the community, her lawyer considered a diversion application under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (this replaced the old “section 32”). See our overview of recent criminal law changes and case studies on section 14 outcomes.
Defence of provocation
A defence of provocation relies on the argument that an individual has been provoked through a wrongful act or insult which has caused the defendant to lose self-control and commit a violent act. In NSW today, “extreme provocation” exists only as a partial defence to murder under section 23 of the Crimes Act 1900. It does not apply to assault or other offences. Where made out, the charge is reduced from murder to manslaughter.
Under criminal law principles, every defence is subject to the test of proof beyond reasonable doubt and must be assessed against the actions of an ordinary person in the accused’s circumstances.
Essentially, the defence seeks to establish that the accused lost self-control in the heat of the moment and that an ordinary person could have reacted similarly. For tailored advice about how this interacts with charges like murder or manslaughter, speak with our criminal law team.
Case study
Jack has engaged a team of criminal defence lawyers in Western Australia to assist with a defence of provocation against a murder charge and an assault charge. Initially he wanted to use self defence, however his lawyers consider that extreme provocation will be more successful on the murder count.
Jack will present evidence that the victim’s conduct deprived him of self-control and that an ordinary person could have lost control in the same situation. He understands the defence is limited to murder in NSW and that the outcome, if accepted, would reduce murder to manslaughter rather than result in an acquittal.
In a nutshell
Criminal law is complex and there are many defences that may explain criminal or violent acts. Self defence and extreme provocation need to be considered carefully as reasonable responses to violence. Both can act as full or partial defences depending on the facts and the charge.
If you have a criminal matter that needs attention, Jameson Law has a team of highly skilled Sydney criminal lawyers ready to help. Call (02) 8806 0866 or book a consult.
