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Legal Defences In Self Defence And Provocation Cases

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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 immediately if you seek to make a self defence argument or are involved in a provocation case. Criminal charged are not a matter which should be taken lightly.

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, have resulted in an assault committed, grievous bodily harm or death then pursuant to the crimes act those actions must be punished.

Criminal responsibility considers a range of factors however and critically, intent, force and provocation must be considered. It is not considered normal human nature 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 self defence or provocation may have only explained half of the defendants actions.

Usually, this is the case with matters 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 is to be proportionate to the force being responded to. A full defence however means that 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 whereby the victim was struggling to breathe.

Ultimately, it is not a one size fits all scenario and each separate legal matter needs to be assessed against its own circumstances before the court.

Self Defence

Self defence is a complicated argument and it can only be made in particular circumstances. The basic premise of a self defence argument 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. Self defence relies on an ordinary person concluding that in the same circumstance they would have made the same action and therefore the defendant should not be found criminally responsible.

Self defence requires that the action made 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 violent that results in permanent injury or death however this is not the aim. A subjective test may therefore be required.

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.

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. The violent act must be a “heat of the moment” act and it must be proportionate to the provocation. For example, if a punch to the jaw may be a proportionate response to a hateful comment being made.

Under criminal law principles, every defence is subject to the test of “beyond a reasonable doubt” and it must be measured against the actions of an ordinary person.

The defence of provocation, if successfully argued, establishes that an individual cannot be considered criminally responsible for their actions at the time of the offence. In some states, such as Queensland, the defence of provocation can be used in circumstances such as murder whereby, if successful, the charge would be downgraded to that of manslaughter.

Essentially it establishes, with sufficient evidence, that the accused had no power of self control at the time and that the accused person believed that their actions were protective of their safety.


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