When self-defence under s 271 of the Criminal Code (Qld) is raised, the prosecution must negative all elements of the provocation defence under ss 268-269 (including proportionality of force to provocation) to establish that the complainant's prior assault was lawful. Sections 271 and 272 contain a gap: a person who provoked an assault has no self-defence unless they apprehend death or grievous bodily harm, regardless of how minor the provocation was. This gap cannot be filled by judicial interpretation. A magistrate in a criminal trial must make clear findings on essential factual issues and credibility, and an approach involving assumptions and uncertainties is entirely inappropriate.
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