Provocation and Assault
In Western Australia, a person is not held to be criminally liable for an Assault if the defence of provocation is available to them.
Provocation is defined is s.245. It is defined as a wrongful act or insult of such a nature as to be likely:
- When done to an ordinary person; or
- In the presence of an ordinary person to another person who is:
- Under the person’s immediate care; or
- In a conjugal, parental, filial or fraternal relationship with the person;
to deprive the person of their power of self-control and to induce that person to Assault the person who performed the wrongful act or insult.
A lawful act cannot give rise to a provocation to Assault. For example, the lawful arrest of a person cannot be relied upon as provocation to Assault the person effecting that lawful arrest. However; if the person being arrested is aware that they are being arrested unlawfully, that person can use that unlawfulness as evidence of provocation.
s.246 Defence of Provocation
A person is not criminally liable for an Assault upon a person who provoked them as per the definition above, provided that:
- The person was in fact provoked to the extent that the person lost their self-control; and
- Acted upon the provocation before there was time for their “passion to cool”; and
- The force used under such provocation was not disproportionate to the provocation; and
- The force was not intended or likely to cause death or grievous bodily harm.
There are two elements to assessing whether provocation is sufficient to give rise to this defence. Firstly, the provocation must be assessed from the position of an “ordinary person” to see if it satisfies the definition of provocation pursuant to s.245 above. Secondly, the provocation must have actually had that effect on the person provoked. Both elements must be satisfied for the defence of provocation to succeed.
s.247 Using Force to Prevent the Repetition of an Insult
It is lawful for a person to use such force as is reasonably necessary to prevent the repetition of an act or insult that was of such a nature as to be provocation to the person for an Assault; provided that the force used is not intended or likely to cause death or grievous bodily harm.
A person who commits an Assault in self-defence does not commit an unlawful act.
A person acts in self-defence if;
- The person believes the act is necessary to defend themselves or another person from a harmful act, even if that harmful act is not imminent; and
- The act of the person would be considered a reasonable response in the circumstances as the person believed them to be; and
- The person has reasonable grounds for believing the circumstances warranted the persons response; and
- The act of the person is NOT done to defend another person from a lawful act (such as a lawful arrest).
The test for self-defence requires that the person relying on self-defence satisfy a court that they believed the act to be necessary and that a reasonable person in the circumstances would have considered the act to be necessary.
Pursuant to s.260, the act done in self-defence cannot involve excessive force. If excessive force is used the act is no longer lawful.
When Can an Assault be Lawful?
There are a number of lawful justifications for Assault. These are detailed below. When an Assault is committed lawfully, the amount of force used in the Assault must not be excessive. Pursuant to s.260, if excessive force is used the Assault is no longer considered to be lawful.
s.224 Execution of Sentence
A person who is lawfully charged with executing or giving effect to a lawful sentence imposed on a person is justified to give effect to that sentence.
s.225 Execution of Process
A person who is required to arrest or detain a person while executing a lawful process of a court can lawfully arrest and detain such a person. Another person who lawfully assists such a person is also justified in assisting in the arrest or detention of such a person.
s.226 Execution of a Warrant
A person who is charged by law with the duty of executing a lawfully issued warrant – and any person lawfully assisting them to do so – can lawfully arrest and detain a person under such a warrant.
s.233 Preventing Flight From Arrest
Any person who is lawfully arresting another person may use reasonable force to prevent the escape if the person to be arrested takes flight – or appears to be about to take flight – to attempt to avoid being arrested.
Force that is intended to – or likely to – cause death or grievous bodily harm can only be used where:
- The person using the force is a police officer, or a person assisting a police officer; and
- The person to be arrested is reasonably suspected of having committed an offence which is punishable with imprisonment for life; and
- The person to be arrested has been called upon to surrender prior to force being used.
s.235 Preventing the Escape or Rescue of an Arrested Person
Where a person has lawfully arrested another person, the arresting person may lawfully use any force that is reasonable necessary to prevent the arrested person from escaping or to prevent another person rescuing the arrested person.
Use of Force to Supress a Riot
It is lawful for the following classes of people to use force to supress a riot:
- S.238 Any person can use reasonable force to suppress a riot where that force is proportionate to the danger apprehended from the continuance of the riot; and
- S.239 It is lawful for a justice to use or order to be used, or for a police officer to use reasonable force to supress a riot where that force is proportionate to the danger apprehended from the continuance of the riot; and
- S.240 It is lawful for any person acting in good faith in obeying the orders of a justice to use reasonable force to carry out such orders. Such orders must not be manifestly unlawful; and
- s.241 Any person who believes on reasonable grounds that serious mischief will arise from a riot before intervention can be secured from a justice or the police can use reasonable force to supress a riot where that force is proportionate to the danger apprehended from the continuance of the riot; and
- s.242 It is lawful for a person who is bound by military law to obey the lawful commands of his superior officer to obey any command given him by his superior officer in order to cause the suppression of a riot, unless the command is manifestly unlawful.
s.243 Use of Force to prevent Violence by a Mentally Impaired Person
It is lawful for any person to use reasonable force to prevent a person that they reasonably believe to be a mentally impaired person from doing any violence to another person or any property.
s.244 Use of Force to Prevent a Home Invasion
The occupant of a dwelling may use reasonable force – or do anything – to:
- Prevent a home invader from wrongfully entering the dwelling or associated place. A person assisting the occupant or a person acting on the authority of the occupant may also use such force; or
- Cause a home invader who has entered the dwelling or associated place to leave. A person assisting the occupant or a person acting on the authority of the occupant may also use such force ; or
- Effectively defend themselves, including with the assistance of another person acting in good faith, against violence used or threatened against them by a home invader who is:
- Trying to wrongfully enter the dwelling or associated place; or
- Wrongfully in the dwelling or associated place:
- To prevent a home invader from committing or continuing to commit an offence within the dwelling or associated place. A person assisting the occupant or a person acting on the authority of the occupant may also use such force.
However, a person cannot use force intended to cause, or likely to cause death to the home invader unless the occupant believes on reasonable grounds that the home invader is using, likely to use or threatening violence to a person. It is important to note that any force used can only be proportionate to the danger faced by the occupant. If an occupant caused the death of a home invader it could only be held to be reasonable where there was no other reasonable option available to the occupant to negate the threat to themselves.
A home invader is a person the occupant believes on reasonable grounds:
- Intends to commit an offence; or
- Has committed or is committing an offence;
in the dwelling or associated place. An offence includes any offence other than that of wrongful entry.
A place that is an associated place to a dwelling includes:
- Any place used exclusively in connection with the occupation of the dwelling; and
- If the dwelling is in a group of 2 or more dwellings, any common areas used by occupants of those dwellings.
The Use of Force in Relation to Moveable Property
s.251 Use of Force to Resist Taking of Moveable Property by a Trespasser
A person who is in peaceable possession of any moveable property or anyone acting on the authority of such a person can use reasonable force to resist:
- The taking of such property by a trespasser; or
- To retrieve the property from the trespasser;
provided the force used is reasonable in the circumstances and does not cause death or grievous bodily harm to the trespasser.
s.252 Using Force to Defend Possession of Moveable Property Possesses by Claim of Right
A person who is in peaceable possession of any moveable property under a claim of right or anyone acting on the authority of such a person can use reasonable force to defend their possession of the property. This includes the use of force against a person who is entitled by law to possession of the property. However, the person cannot do bodily harm to the person they are using the force against.
s.253 Use of Force to Take Moveable Property Possessed Without Claim of Right
A person who is entitled by law to the possession of moveable property which is possessed by another person may use reasonable force to obtain possession of the property if:
- The other person does not have a claim of right to the property or act on behalf of another person who has such a claim of right; and
- The person in possession of the property resists the entitled person.
Any force used must be reasonable in the circumstances and cannot be intended or likely to cause death or grievous bodily harm.
Use of Force in Relation to Premises and Land
“Place” in this section means any land, building, structure, tent, or conveyance, or a part of any land, building, structure, tent, or conveyance.
s.254 Use of Force to Prevent Entry to or Effect Removal of People From Land
It is lawful for an occupant who:
to use such force as is reasonably necessary to:
- Prevent a person from wrongfully entering the place; or
- Remove a person who wrongfully remains in or on the place; or
- Remove a person behaving is a disorderly manner in or on the place;
provided the force used is not intended or likely to cause death or grievous bodily harm.
s.255 Use of Force to Protect Possession of a Place Under a Claim of Right
If a person is in peaceable possession of any place with a claim of right, it is lawful for the person, and for any other person acting by their authority, to use such force as is reasonably necessary in order to defend the person’s possession, even against a person who is entitled by law to the possession of the place, provided that the person does not do bodily harm to such person.
s.256 Use of Force to Prevent Access to Disputed Right-of-way, Easement or Profit
A person, or another person acting on authority of the person, may use reasonable force to stop a person from entering land in situations where:
- The person has given notice to another person that a right-of-way, easement or profit on the land is disputed; and
- The other person enters the land to exercise the disputed right-of-way, easement or profit;
provided the person does not use force which causes bodily harm.
s.257 Use of Force for Discipline of Children
It is lawful to use, by way of correction, any force that is reasonable in the circumstances upon:
- A child by a parent or person in the place of a parent of the child; or
- A pupil by a schoolmaster.
s.258 Use of Force for Discipline Upon a Ship or Aircraft
It is lawful for the master or other person in command – or any person acting under the instruction of the master or person in command – of;
- A vessel on a voyage; or
- An aircraft on a flight;
to use such force as the person believes to be reasonably necessary for maintaining good order or discipline on board the vessel or aircraft.
s.259 Surgical and Medical Treatment
Often, medical treatment needs to be administered to a person when they are not in a position to give their consent. This section removes criminal liability for such treatment. This is necessary as otherwise – on the basis of the definition of Assault – such medical treatment would be an Assault and therefore unlawful.
A person is not criminally responsible for administering surgical or medical treatment – which is reasonable having regard to the patient’s state of mind and all the circumstances of the case – which is administered:
- In good faith; and
- With reasonable care and skill.
and, the treatment is provided to:
- Another person for the benefit of that person; or
- An unborn child for the preservation of the life of the mother.
The definition of bodily harm incudes causing a person to have a disease. For this reason, this section deems a person is not criminally liable if they perform a procedure that causes a person to have a disease if the procedure is:
- Performed in good faith; and
- Performed with reasonable care and skill; and
- Performed for the purpose of inoculation.