Legislative Review Committee: Review of the Report into the Partial Defence of Provocation

The Hon. J.E. HANSON (16:19): I move:

That the report of the committee on its Review of the Report of the Partial Defence of Provocation be noted.

By way of some lengthy background to this particular report, on 1 May 2013 the Hon. Tammy Franks introduced the Criminal Law Consolidation (Provocation) Amendment Bill 2013 into the Legislative Council, obviously some time before my arrival. I will refer to this as 'the bill'. The bill proposed to amend the Criminal Law Consolidation Act by way of insertion of a new section 11A. This section was to limit the partial defence of provocation, otherwise known simply as 'the provocation defence'. The proposed new section would read as follows:

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 of the same sex as the defendant.

The provocation defence, if established, allows for a court to reduce the charge of murder to the offence of manslaughter. It is referred to as a 'partial defence' because it only lessens the charge and potential consequences. By comparison, self-defence can provide a complete defence to a charge of murder, entitling the accused to a full acquittal without further penalty. The bill sought to address the possibility that a non-violent homosexual advance could be used as the basis for a provocation defence, which is often termed 'the gay panic defence'.

On 30 October 2013, following debate in respect of the bill, the Legislative Council resolved that the bill would be withdrawn and referred to the Legislative Review Committee for inquiry and report, pursuant to section 16(1)(a) of the Parliamentary Committees Act. I refer to this as 'the initial inquiry'. The committee received 12 submissions to the initial inquiry. Four public hearings were held. Although the majority of submissions supported the intent of the bill—that is, to prohibit the legal argument of a gay panic defence—the submissions could be divided into three distinct groups:

1. Those that supported the bill in its current form without addressing further reform.

2. Those that supported the bill in the context of recommending a broader review or abolition of the provocation of defence.

3. Those that did not support the bill on the basis that common law has previously addressed the issue contemplated by the bill and that the issue the bill seeks to address does not exist.

In 2014, there was a judgement of the South Australian Court of Criminal Appeal in Lindsay v The Queen. This was referred to in a number of submissions. The matter involved an accused who had sought to establish a provocation defence following the killing of Mr Andrew Negre after Mr Negre had made a homosexual advance to the accused. The judgement of the Hon. Justice Peek in Lindsay v The Queen, with the Hon. Chief Justice Kourakis agreeing, clearly appeared to contemplate that homosexuality is now largely accepted as part of contemporary Australian society and that it was no longer unlawful for consenting adults to engage in homosexual activity. Justice Peek did not allow the defence of provocation to be put to the jury in the circumstances of Lindsay v The Queen.

On 2 December 2014, the committee tabled the Report of the Legislative Review Committee into the Partial Defence of Provocation, which I will refer to as 'the initial report'. The initial report made a number of findings, including the following:

1. That the bill would not achieve meaningful reform of the provocation of defence.

2. That introducing provisions to limit the conduct that may be considered by a court as relevant to a provocation defence at trial will also fail to achieve meaningful reform, given the complex evidential matrices that often accompany the use of the defence.

3. That the abolition of the defence would not allow for consideration of circumstances at very high levels of provocation and consequently could not be supported.

4. That the terms of reference did not extend to reviewing the sentencing in relation to murder in South Australia, and, in the context of that finding, that any future reform of the provocation defence should only take place in the context of a wholesale review of the mandatory sentencing provisions that may also apply in South Australia in respect of murder.

5. That consequently there was no need to amend the basis of the provocation defence.

Notably, the initial report also included a minority report from the Hon. John Darley MLC to the effect that the existence of the gay panic aspect of provocation is not considered appropriate by the community and further consideration should be given to options for reform.

On 6 May 2015, an appeal to the High Court of Australia by Mr Lindsay resulted in the setting aside of the order of the South Australian Court of Criminal Appeal and the ordering of a new trial. The majority judgement of the High Court observed that there were a number of potential sources of provocation beyond the homosexual advance that should have resulted in the defence being left to the jury for consideration. The High Court considered that it was not for the Court of Criminal Appeal to refuse to allow the provocation of defence to be put to the jury in the Lindsay case. The entire evidential matrix must be available for the jury to consider.

On 13 May 2015, the Legislative Council resolved to refer the initial report to the committee for review in light of the High Court's decision in Lindsay. After receiving a number of further submissions and hearing from a number of further witnesses, on 23 September 2015, the committee resolved that, as the matter remained before the courts, it should refrain from making findings and recommendations in respect of the review until the completion of that process. A total of eight further public hearings were conducted by the committee.

On 8 March 2016, the committee tabled the interim report of the review of the report of the Legislative Review Committee into the partial defence of provocation, which did not include findings or recommendations. Upon retrial on 30 March 2016, Mr Lindsay was again found guilty in the Supreme Court of South Australia, by verdict of a jury, of the murder of Mr Andrew Negre, and again the verdict was appealed to the Full Court of the Supreme Court of South Australia sitting as the Court of Criminal Appeal.

It was submitted amongst a number of matters that the trial judge erred in her directions to the jury in relation to provocation. On 8 December of that same year, the Court of Criminal Appeal determined that the trial judge did not err when directing the jury in relation to provocation, or in relation to any other matters, and the appeal was subsequently dismissed.

Mr Lindsay applied for special leave to appeal to the High Court of Australia. It was submitted amongst other matters that the trial judge had 'failed to direct the jury in accordance with the correct legal test or question on the objective limb of provocation'. On 16 June 2017, the High Court determined that the trial judge did not err when directing the jury and dismissed the application.

This exhausted all rights of appeal available to Mr Lindsay. Consequently, the committee agreed to receive final evidence and complete the review. The submissions and evidence received by the committee were to the effect that the 2015 judgement of the High Court in relation to Mr Lindsay's first appeal did not change the basis of the provocation defence. The reason for the allowance of the appeal was considered to be in relation to the difference of opinion between the High Court and the Court of Criminal Appeal with respect to the interpretation of the facts of the case.

As a result, despite its condemnation of all forms of unlawful violence, the committee expressed its support for the recommendations and findings set out in its initial report. It again expressed its opinion that the bill would not introduce meaningful legal reform. The committee took the view that a consideration of the relevance of a provocation defence at trial will require an assessment of the complex factual matrices that inevitably apply, and it was further considered that excluding any particular factor from the matrix was unlikely to affect meaningful reform.

The 2015 judgement of the High Court in Lindsay particularly highlighted the many factors that might have been relevant to provocation in the circumstances of the case beyond the relevance of a homosexual advance. The committee continued to be of the view that it is very unlikely a non-violent homosexual advance would ever, of itself, constitute sufficient grounds to establish a provocation defence.

The committee was unable to recommend further options for reform of the law, particularly the scope of other available defences to murder and manslaughter, without undertaking a wholesale review of sentencing options available for such offences. The committee considered that the terms of reference for the initial inquiry did not provide for the undertaking of such a review.

The committee noted the current work of the South Australian Law Reform Institute in relation to the provocation defence, following the invitation by the Attorney-General to review legislative or regulatory discrimination against individuals or families on the grounds of sexual orientation, gender, gender identity or intersex status. It was also noted that the Premier has indicated he awaits the publication of the institute's stage 2 report, following its review of the provocation defence, before assessing the potential for further reform in relation to this area of law. It is expected that this report will be published in late 2017.

The committee respectfully noted that its findings and recommendations may be inconsistent with those of the institute. The institute was of the view that the provocation defence may be discriminatory on the basis of sexual orientation and therefore inconsistent with the Sex Discrimination Act 1984. In the view of the committee, the requirement for the entire evidential matrix to be assessed for the purposes of the relevance of a provocation defence at trial appeared to temper any discriminatory aspect of the defence.

The committee also noted the submission to the initial inquiry by Kellie Toole and a number of others, which observed that it was almost certain that a heterosexual advance made in circumstances, such as those which applied in the High Court's 1997 decision in Green v R, would be found to provide a basis for a provocation defence, although it was noted that the defence is yet to be applied in relation to opposite sex advances in Australia. The need to address the issue of discrimination on the basis of sexual orientation consequently did not influence the deliberations of the committee.

In conclusion, the committee would like to thank the committee secretary, Mr Matt Balfour, and the committee's research officer, Mr Ben Cranwell, who provided valuable assistance to the committee throughout the conduct of the inquiry. I personally would also like to thank other members of the committee for their contributions to the inquiry, given my very late status as sitting member on it and, indeed, Chair.

I would like to thank the Hon. Gerry Kandelaars, the former presiding member of the committee; the Hon. John Darley; Sam Duluk, the member for Davenport; the Hon. Andrew McLachlan; Lee Odenwalder, the member for Little Para; and Jack Snelling, the member for Playford. I would also like to thank those members who resigned from the committee during the course of the conduct of the inquiry, including the member for Heysen, Isobel Redmond; the member for Elder, Annabel Digance; and the member for Fisher, Nat Cook. I commend the report to the council.

Debate adjourned on motion of Hon. T.J. Stephens.