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Queensland Law Reform Commission: A Review of the Defence of Provocation Discussion Paper

NCJ Number
Date Published
August 2008
233 pages
The Queensland Law Reform Commission presents a “Discussion Paper” that provides information on Queensland’s current law relating to “provocation," which can be a partial defense in murder cases, reducing murder to manslaughter, and a complete defense to an assault, i.e., provocation by the person assaulted relieves the person committing the assault of all criminal responsibility for the assault.
This Discussion Paper raises issues for consideration about the current law on provocation under sections 304, section 268, and section 269 of Queensland’s Criminal Code and invites submissions on the Commission‘s review. One chapter presents an overview of the Criminal Code’s homicide provisions in providing background for the discussion of the partial defense of provocation. This is followed by a chapter on the historical development and current position on provocation as a complete defense to charges of assault. Among the issues discussed are the conduct that may constitute provocation by the person assaulted, the criteria for the acceptable loss of self-control by the assaulter, and a recent relevant decision of the Queensland Court of Appeal. The next chapter turns to the use of provocation as a partial defense in cases of intimate partner homicide, followed by a chapter on Queensland cases in which provocation did and did not succeed in reducing murder to manslaughter. Another chapter examines the relevance of the provocation defense to cases in which battered women kill the batterer. Other chapters address jury directions in cases that involve the partial defense of provocation and the onus of proof for the partial defense of provocation. The concluding chapter identifies key questions and discussion issues in the review of provocation as a legal defense, including whether it should be abolished or recast and changed in the onus of proof for provocation. Appended terms of reference for the Commission’s review