In Queensland a prosecutor must prove on the evidence that a person committed an offence. A person who is charged with a criminal offence may defend themselves by relying on a number of defences or combination thereof.
If successful, a defence may result in a charge being reduced to a lesser offence, the charges being dropped, or a person being acquitted (found not guilty) of the offence. The two most common defences used against assault charges are Provocation and Self Defence. While these are the most common, there are a number of other factors that can help build a possible defence.
Under section 268 of the Criminal Code provocation provides a complete excuse with relation to an assault charge. This does not make the act lawful however it does absolve you of any criminal responsibility resulting from the assault.
Provocation is defined as “any wrongful act or insult of such a nature as to be likely, when done to an ordinary person…to deprive them of the power of self-control, and to induce to person to assault the person by whom the act is done”.
In order to prove provocation, there must be both a loss of self-control and provocative conduct from the person assaulted. Generally the response must be immediate or in the heat of the moment. The burden is on the accused to bring sufficient evidence to satisfy the court of provocation.
Provocation is not a defence when charged with Grieves Bodily Harm or Wounding.
Under section 271 of the Criminal Code an individual can use as much force as is reasonably necessary to defend themselves against an unprovoked assault. The force used must be proportionate to the perceived threat. This means that the use of force must be less than or equivalent to the force of the assault.
Under section 272 of the Criminal Code if a person assaults someone or provokes an assault that person may then use reasonable force to protect themselves if the other person responded with such violence that the person who provoked it would reasonably fear they may suffer death or grievous bodily harm.
This defence is not open to a person who’s initial assault or provocation is done with the intent to kill or do grievous bodily harm or where they use force which could cause death of grievous bodily harm prior to it being necessary.
Acting in The Aid Of Others
Under section 273 of the Criminal Code in any circumstance where self-defence may apply it is also lawful for a person outside of the initial altercation who is acting in good fail to use a similar degree of force for the purpose of defending another person.
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