Motions

Legislative Review Committee: Partial Defence of Provocation

The Hon. G.A. KANDELAARS (15:55): I move:

That, as a matter of urgency, the Legislative Review Committee review its Report into the Partial Defence of Provocation tabled in the Legislative Council on 2 December 2014, in light of the recent High Court decision in Lindsay v The Queen [2015] HCA 16.

The chamber may recall that the Legislative Review Committee undertook an inquiry into the partial defence of provocation sometimes used by defendants to a charge of murder to seek a reduction of the charge to manslaughter. The committee last year inquired into the Criminal Law Consolidation (Provocation) Amendment Bill 2013, which was introduced into this chamber by the Hon. Tammy Franks MLC after a referral from this council.

The bill proposes to amend the Criminal Law Consolidation Act 1935 by way of inserting a new section 11A to limit the partial defence of provocation. The Criminal Law Consolidation (Provocation) Amendment Bill 2013, the proposed new section 11A, Limitation on defence of provocation, states:

For the purposes of proceedings in which the defence of provocation may be raised, conduct of a sexual nature by a person does not constitute provocation merely because the person was the same sex as the defendant.

I must commend the Hon. Tammy Franks for bringing this to the attention of the chamber at the time. One of the key considerations of the committee during its inquiry was the application of the reasoning set out in the judgement of the South Australian Supreme Court of Criminal Appeal in R v Lindsay [2014]. The decision of R v Lindsay meant that the legal community considered it highly unlikely that a nonviolent homosexual advance would be sufficient of itself to establish a provocation defence. The recent High Court decision of Lindsay v The Queen [ 2015] has effectively put that view in doubt. The High Court decision held (paragraph 36):

It was open, as the appellant submits, for the jury to consider that the sting of the provocation lay in the suggestion that, despite his earlier firm rejection of the deceased's advance, the appellant was so lacking in integrity that he would have sex with the deceased in the presence of his family in his own home in return for money. And as the appellant submitted on the hearing of the appeal in this Court, it was open to a reasonable jury to consider that an offer of money for sex made by a Caucasian man to an Aboriginal man in the Aboriginal man's home and in the presence of his wife and family may have had a pungency that an uninvited invitation to have sex for money made by one man to another in other circumstances might not possess.

What that leads me to conclude is that the accused and the victim being of the same sex would still be a factor in establishing the partial defence of provocation. For example, should the above provocation be put to the jury, the jury may consider the fact that the sting of the provocation is only sufficient due to the sexual advance being of a homosexual nature. Further, the recent High Court case now suggests that the partial defence of provocation may be used for a nonviolent homosexual advance. This, in my view, is highly concerning in a modern contemporary society and, in my view, is unacceptable.

The Legislative Review Committee, in its deliberation, had the following key options for reform of the partial defence, or otherwise, put to it via submissions. The first was retaining the common law partial defence of provocation. Although the last decade has seen a trend towards reform of the provocation defence in other jurisdictions, a number of submissions had also supported this retention of the defence founded in common law, particularly in the context of the examination of the Hon. Tammy Franks' bill. Examples of this view can be found in submissions to the inquiry by the Attorney-General, the Hon. John Rau, and the Director of Public Prosecutions, Mr Adam Kimber SC. It should be noted that these submissions were in line with the Supreme Court decision.

Another option was to exclude specified conduct from the provocation defence. A number of jurisdictions have enacted legislative reform to exclude specified conduct from being considered relevant by a court when an accused raises the provocation defence, including New South Wales, Queensland, the Australian Capital Territory and the Northern Territory. In addition to the removal of specified conduct, both New South Wales and the United Kingdom have recently amended the provocation defence to require a heightened degree of provocative conduct and, at the same time, excluded specified conduct which the jurisdictions did not consider should be conduct for a court to take into account as relevant to establishing the defence.

Another option for reform would be to completely abolish the partial defence of provocation. This has occurred in Tasmania, Western Australia, Victoria, and New Zealand. Two of the submissions to the inquiry sought the complete abolition of the defence. Notably, it was the committee's view that any consideration of this option would require a concurrent review of any applicable mandatory sentencing obligations. As an example, it would be necessary to deal with extenuating circumstances that could occur in relation to such issues as victims of domestic violence or, for that matter, victims of sexual abuse as another example, and we would need to consider how the abolition of the partial defence of provocation would impact on those cases.

In providing a further submission to the inquiry, the Law Society had suggested that another option might be to remove the term 'provocation' from the provocation defence and rebadge the defence. This has occurred in the United Kingdom where the defence is now labelled the 'loss of control' defence. By pursuing this reform, responsibility for the offence may be seen to rest more comfortably with offenders, for the offence of manslaughter, and not with victims.

The High Court decision in Lindsay raises concerns that the use of the provocation defence may justify fatal violence arising from homophobia. South Australia should no longer allow excessive violence fuelled by homophobic beliefs to be condoned under our laws. South Australian society today is not so homophobic as to respond to a nonviolent sexual advance by a homosexual person as to form an intent to kill or to inflict grievous bodily harm.

They may be embarrassed, hurt or insulted. They might react with strong language of protest, use physical force as necessary to escape the situation and, where absolutely necessary, assault a persistent perpetrator to secure escape. The notion that an Australian male or female today would lose self-control to form intent to kill because of a nonviolent sexual advance is totally unacceptable, in my view.

A further inquiry by the Legislative Review Committee will give it an opportunity to determine how to prevent a nonviolent sexual advance from being used as a partial defence of provocation without potential unintended consequences. This is a complex area of law that needs a considered response. What I can assure this council is the committee strongly supported to the intent of the Hon. Tammy Franks in relation to her previous bill, which sought to address what has been viewed as the defence which may unfairly be used, at least partially, to excuse homophobic violence. The committee in its previous report condemned all forms of unlawful violence, and I am sure it will work diligently to recommend a working solution to the issues raised in the recent High Court decision in Lindsay v The Queen. I commend this motion to the council.

The Hon. A.L. McLACHLAN (16:06): I rise to speak on behalf of the Liberal Party, which will be supporting the motion in this chamber. It is of a view similar to the views expressed by the Hon. Mr Kandelaars. It is a complex area of law that requires a considered approach, and the report prepared by the Legislative Review Committee has only recently been tabled, so in our view it is appropriate that the new finding by the High Court be referred for further consideration by the Legislative Review Committee.

The Hon. T.A. FRANKS (16:07): I rise to support this motion put before us by the Hon. Gerry Kandelaars, and it will come as no surprise to members that I believe that we need swift action on this issue. The Lindsay v The Queen High Court of Australia judgement last week in unanimously allowing an appeal from the Court of Criminal Appeal of the Supreme Court of South Australia, quashing the appellant's conviction for murder and ordering a new trial in that case, means that not only is the 'gay panic defence', as it is colloquially known, possible in South Australia but it is imperative that we as legislators turn our minds to it.

It is a mediaeval murder defence which should be scrapped. It is 40 years now in this parliament since homosexual acts were decriminalised. We should have acted on this issue prior to this time. I would say we are going to be the last state to act on this issue. Since the Legislative Review Committee undertook their inquiry, New South Wales has progressed on this issue, and Queensland's Attorney-General last month announced that, by the end of 2015, that state government would take action on the 'gay panic defence'. Once that happens, unless we act before Queensland does, we will be the only state or territory in this country to retain this partial defence of provocation and the homosexual advance test. I urge the Legislative Review Committee to reopen and undertake their deliberations swiftly and thoroughly, and I look forward to further debate on this issue in this place.

Motion carried.