Phemanderac wrote on Oct 1
st, 2015 at 6:03pm:
So, actually, the burden of proof then lies in the alleged perpetrator's loss of self control...
Now I have to wonder if that also applies here in NSW...
Also, are there any Federal laws regarding this?
So, sure, you could argue it, however, you still have a pretty high tide mark there regarding burden of proof, well depending on judge I suppose...
No, the Crown always bears the burden of proof of guilt beyond reasonable doubt. They must satisfy the Jury that, beyond reasonable doubt, the accused (among many other factors) did not act as provoked. Here is some more relevant information about provocation:
Quote: CRIMINAL CODE 1899 - SECT 268
268 Provocation
(1) The term provocation, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any 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 to whom the person stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered.
(2) When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.
(3) A lawful act is not provocation to any person for an assault.
(4) An act which a person does in consequence of incitement given by another person in order to induce the person to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.
(5) An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.
I have to say that I am gobsmacked at the level of ignorance on such very basic matters, but that is probably my fault expecting people to know some fundamental Law. I'll keep that in mind from now on.
Seems to me that highlighted bit might be important...I think the term "reasonable person" is used elsewhere, I guess they would be similarly considered...
Bit different in NSW by the way, I looked.
I am not surprised by your ignorance of said ignorance. You see Aussie, there is one basic truth regarding the law. Criminals both who work for the legal system and those who work against it tend to know a fair bit about the law... The rest just try to do the right thing.
That's a truth that most of the rest of us actually get.