Provocation In Australia

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Provocation is one of the major defences used within our Queensland court system, with Queensland being one of the only States in Australia that still allow its use. The defence is considered to be highly controversial, and the majority of states in Australia have abolished it. This lead to heated debate all throughout Australia, with stakeholders claiming that provocation is an unacceptable excuse, no longer relevant to modern society. Many of the Queensland residents agree with these views, and believe that provocation should be excluded from the court system, as in numerous high profile cases, it is abused and misused by men, particularly in domestic violence situations. Therefore, it is crucial that this defence is investigated, and appropriate …show more content…

A partial defence is described as something the defendant can use in court to downgrade or reduce a criminal charge or penalty. The onus of proof lies with the prosecution, so they will need to disprove this defence beyond reasonable doubt. In order for the accused to put forward the defence of provocation, four elements must be established. To begin with, there must have been a provocative incident that invokes ‘passion’, that being fear or rage in the accused, and they must lose control in direct response to this incident. The accused would have to act suddenly, not allowing time to gain control over their emotions, and the incident must have been enough for an ordinary person to lose control. If these four criteria have been met, and the jury agrees, then the accused may have their sentence reduced or they may have their charge downgraded, depending on the circumstances. This can lead to many controversial decisions within our court …show more content…

It is most commonly abused by men who have killed their partners for infidelity, or during a fight, to downgrade their murder charges to manslaughter. An example of this, is the case of Damian Sebo (R v Sebo [2007] QCA 426). In this case, Damian Sebo (28) attacked his 16-year-old ex- girlfriend Taryn Hunt over the head multiple times with a steering wheel lock, after she taunted him, saying she had been cheating on him. Two days later she was pronounced dead. At first Sebo claimed he had nothing to do with her murder, however later confessed, stating it was all her fault, that her taunts and manipulation had provoked him into doing it. Following this Sebo was charged with murder, however when he pleaded provocation the Jury agreed and found him guilty of manslaughter; he was sentenced to only eight years in jail. This case clearly highlights the misuse of the defense, and lead to a public outcry from all across Queensland. The significant response to this case is what lead to the amendment of legislation during 2011, stating that provocation cannot be claimed from an incident involving words alone, such as in this case. Although this case took place before this amendment, it still displays the ways in which the defense is misused, and why provocation should be

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