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House of Assembly - Fifty-Third Parliament, First Session (53-1)
2014-12-03 Daily Xml
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Parliamentary Committees

Legislative Review Committee: Partial Defence of Provocation

Ms DIGANCE (Elder) (11:02): I move:

That the report of the committee, entitled Partial Defence of Provocation, be noted.

On 1 May 2013, the Hon. Tammy Franks MLC introduced the Criminal Law Consolidation (Provocation) Amendment Bill 2013 into the other place. The bill proposes to amend the Criminal Law Consolidation Act 1935 (South Australia) by way of insertion of a new section 11A to limit the partial defence of provocation, which I will otherwise refer to simply as the 'provocation defence'. The proposed new section 11A 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 the same sex as the defendant.

The provocation defence, if established, will allow for a court to reduce a 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 way of 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 seeks to address the possibility that a nonviolent homosexual advance could be pursued to establish a provocation defence or what has often been termed 'the gay panic defence'. The honourable member, in her second reading speech, referred to Australian society's increasing acceptance of homosexuality and of her desire to ensure that homophobic violence will not be tolerated. Also noted were the considerable reforms which have taken place in the other Australian jurisdictions.

The committee strongly agrees with the honourable member's desire to ensure that homophobic violence should not be tolerated. The committee condemns all forms of unlawful violence and considers it to be an obligation of the law to effectively deter such behaviour.

On 30 October 2013, following debate in respect of the bill, it was resolved in the other place that the bill would be withdrawn and referred to the Legislative Review Committee for inquiry and report, pursuant to section 16(1)(a) of the Parliamentary Committees Act 1991 (South Australia). On 7 June 2014, an invitation to make submissions to the inquiry was advertised in both The Advertiser and The Australian. Twelve submissions were received.

Despite the fact that it was clear from the submissions received that the majority of the community supported the intent of the bill, the submissions received by the committee appeared to be divided into three camps: those who supported the bill, those who supported the bill but sought broader reform, and those who considered the issue the bill seeks to address to be settled at common law, thus making the bill unnecessary.

A number of submissions referred to the recent judgement of the South Australian Court of Criminal Appeal in R v Lindsay, a case involving an accused who sought to establish a provocation defence following the killing of a homosexual male after that male had made a homosexual advance to the accused. The judgement of the Hon. Justice Peek in Lindsay appears clearly to contemplate that homosexuality is now largely accepted as part of contemporary Australian society and certainly that it is no longer unlawful for consenting adults to engage in homosexual sexual activity.

Justice Peek did not allow the provocation defence to be put to the jury in the circumstances of Lindsay, and in light of the judgement it is now considered by the legal community that it is highly unlikely that a nonviolent homosexual advance will ever be sufficient of itself to establish a provocation defence. This view is accepted by the committee.

R v Lindsay must also be considered in the context of the previous High Court of Australia judgement of Green v The Queen. Green involved a number of factors argued as relevant to a provocation defence at trial, one being a homosexual advance. However, other factors included the experiences of other accused involving sexual abuse as a child, and another factor involved the deceased sneaking into a bed occupied by the accused and touching his genitals.

In Green, as part of the entire circumstances of the matter, the homosexual advance was accepted as one of the circumstances relevant to provocation at trial. As a result, other submissions considered that a nonviolent homosexual or even heterosexual advance may still be considered as a relevant factor amongst any number of further relevant factors when seeking to establish the provocation defence in circumstances such as those found in Green.

Due to the range of issues addressed within the submissions to the inquiry, on 6 August 2014, the committee formally resolved that the inquiry would involve a broader examination of the provocation defence and that it would not be limited to the bill. The committee took evidence in respect of a range of issues which were considered relevant to the provocation defence.

Following evidence in respect of the legal effect of R v Lindsay and Green v The Queen, the committee has resolved that the bill will not achieve meaningful legal reform of the provocation defence. The committee further resolved that the balance of evidence suggests introducing provisions to limit the conduct which may be considered by a court as relevant to a provocation defence at trial will also provide for ineffective reform, particularly given the complex evidential matrix which often accompanies the use of the evidence.

It was submitted to the committee that parliament could, through enacting the bill into law, provide leadership regarding the issue of violence directed at the gay and lesbian community. However, it is the view of the committee that it is not the role of parliament to enact laws of no meaningful legal effect aimed solely at conveying a message to the community. There are other mechanisms at the disposal of parliament to achieve that end.

Although the committee unanimously supports the position that a nonviolent homosexual advance should not of itself give rise to any potential defence of provocation, the committee is satisfied that the common law has already addressed this issue and that the bill should not be supported.

In particular, the committee formed the view that the wording of the bill, especially the use of the term 'merely because', could have unintended consequences regarding the now settled common law position. The committee's further finding is that it has been unable to identify other suitable options for reform of the provocation defence. Consequently, the defence should be retained.

I need to just quickly comment on the Hon. John Darley MLC's dissenting statement. The committee did give consideration to the total abolition of the provocation defence, but the view of the majority of the committee was that such a recommendation would have required a more thorough examination of the criminal law in relation to murder and, in particular, the sentencing options available in relation to a murder conviction. This was considered to be outside the scope of the committee's referral from the other place.

In conclusion, on behalf of the committee I thank all those who made submissions and gave evidence at the inquiry. I thank the members of the committee: Hon. John Darley MLC, Hon. Andrew McLachlan MLC, Mr Lee Odenwalder (member for Little Para), Ms Isobel Redmond (member for Heysen), and our presiding member, Hon. Gerry Kandelaars MLC. I also thank the committee secretariat, Mrs Jennifer Fitzgerald and Mr Benjamin Cranwell, who did a sterling job in providing support for the committee throughout this inquiry and regarding this report. I commend the report to the house.

Ms REDMOND (Heysen) (11:11): It is my pleasure to rise to make a few brief comments on this report, which was almost unanimous. I do note that the Hon. John Darley in the other place has issued a minority report, which I will refer to. I will try to keep my comments less legalistic than perhaps the topic necessitates. As has already been indicated by the member for Elder, this committee's report arises out of a bill introduced by the Hon. Tammy Franks in which she seeks to limit the defence of provocation as it applies in this state by, in particular, changing the act by adding:

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.

If I can just paint the setting for this, in this state, in effect, we have various defences to the charge of murder which are what are known as 'absolute defences'. For instance, self-defence is an absolute defence. There is a requirement that self-defence be reasonable in the circumstances. That does not apply in the case of home invasion and so on, so there are some ifs, buts and maybes around that, but self-defence is what is known as an 'absolute defence'. So, if you are charged with murder and you can prove self-defence, you are not guilty of murder.

The same applies with mental impairment because the law requires both the actus reus and mens rea (that is, the actual act of doing something and the intention formed to be able to do it). If you have a mental impairment, whether that be a mental illness or an intellectual disability, senility or some other mental impairment, then you may not be found guilty of murder. It can be an absolute defence of that charge if you can show that you suffered from something which prevented you from forming the intention. Automatism, similarly—for an act to be a criminal act, you have to be able to act, and if you are suffering from a state of automatism then you do not act willingly of your own volition and therefore that is also a complete defence.

The defence of provocation is what is known as a 'partial defence' because what it allows is not for you to be absolved of the crime of murder but for the charge of murder to be lessened to that of manslaughter, and so it is raised in that context. Historically, this defence has been around since England in the 17th century, and it rose through the years and adjusted itself to the idea that if you are going to raise the defence of provocation—and, as I have mentioned, we have this idea of reasonableness of a response and so on—the test is essentially that of the ordinary person; that is, whether, in ordinary circumstances, an ordinary person would be provoked sufficiently to react in a particular way to particular circumstances. That obviously changes with the change in social mores over a period of time so that something that 100 years ago may have been considered particularly provocative may be entirely acceptable now. The position is that the test changes with the social mores of the time.

We have now a situation where what has come before this committee is a consideration of the proposal to change the law. It looked at face value to be pretty straightforward because I do not think there would be anyone in this chamber, and generally in the wider community there would be very few people, who would disagree with the idea that simply having a homosexual advance—nonviolent, non-threatening, just someone of the same gender making a sexual advance to you in a nonviolent way—should not actually be a basis for the defence of provocation, which would allow a murder charge to be reduced to manslaughter. The question before the committee was essentially in two parts: firstly, is there an evil or a problem to be addressed and, if there is, does the proposed bill by the Hon. Tammy Franks in the other place address that particular problem?

The committee met over many weeks on this issue and, indeed, we heard evidence from a number of people. In September, we heard from Mr John Wells, Acting Special Counsel to the Chief Executive of the Attorney-General's Department. On 24 September, we heard from Morry Bailes, the President of the Law Society, and Rocco Perrotta, the president elect of the Law Society, who also happens to be Chair of the Law Society's Criminal Law Committee. In October, we heard from Kellie Toole, who is a lecturer at the Adelaide Law School, and then finally, in November, we heard from Mr Michael O'Connell, the Commissioner for Victims' Rights, and Mr Thomas Manning, the Chief Executive of the Gay and Lesbian Community Services for South Australia and the Northern Territory.

In addition, we had submissions from the Attorney-General, South Australia Police, the Victim Support Service, the Director of Public Prosecutions, the Youth Affairs Council, the Legal Services Commission, the Equal Opportunity Commission, the South Australian Bar Association, Deakin University, the Commissioner for Victims' Rights from whom we also heard, Kellie Toole from whom we also heard, and the Law Society from whom we also heard.

So, the committee has taken its role very seriously in trying to come to a conclusion about this. Personally, while I found all the submissions to be very useful, and the witnesses were all very willing to have a free-flowing discussion with us about the issues, I found the evidence given by Mr John Wells to be particularly useful and compelling in my consideration of the committee's report.

As was mentioned by the member for Elder, the matter hinged very largely on whether there is still an evil to be addressed. I think it can be fairly said that the entire committee was at one on the issue of whether we wanted a provocation defence to be available if someone simply suffers a nonviolent, non-threatening homosexual advance. We were at one in saying, no, that should not be allowed, that is not what the law should be in this state.

As was mentioned, two cases were raised in particular; I will refer to those briefly, and I will not go into great detail. There was a 2014 judgement of the Full Court of the state Supreme Court sitting as the Court of Criminal Appeal. It was a situation where an accused sought to establish a provocation defence following the killing of a homosexual male after that male had made a homosexual advance to the accused.

The Hon. Justice Peek—and I will mention that the Chief Justice, Mr Kourakis, agreed with Justice Peek's finding—says that homosexuality is now largely accepted as part of contemporary Australian society and that certainly it is no longer unlawful for consenting adults to engage in homosexual activity. Justice Peek in those circumstances therefore did not allow the defence of provocation to be put to the jury in the case in question of Lindsay. In light of that judgment in particular, it is now considered by the legal community that it is highly unlikely that a nonviolent homosexual advance will ever be sufficient of itself to establish a provocation defence, and the committee accepted that view.

The committee also looked at the case of Green v The Queen, a High Court case from 1997. Basically, that case said that, again, there was a provocation defence at trial, and the homosexual advance was one aspect of that provocation defence. The finding was, however, that other factors included the experience of the accused involving sexual abuse as a child, and another factor involved the deceased sneaking into a bed occupied by the accused and touching his genitals.

In Green, as part of the entire circumstances of the matter, the homosexual advance was accepted as one of the circumstances relevant to provocation at trial. As a result, other submissions considered that a violent homosexual or even heterosexual advance may still be considered as a relevant factor amongst any number of further relevant factors.

In the more recent case of Lindsay in our state Supreme Court, Justice Peek specifically noted in that judgement that he did not question Green and he agreed with the findings in Green. In other words, the finding of the court at the moment is that, although a nonviolent homosexual advance will not of itself enable the accused to raise the provocation defence, it may be considered as one of a number of factors unique to each case.

The DEPUTY SPEAKER: Your time has expired.

The Hon. S.W. KEY: Deputy Speaker, I move an extension of time: two minutes.

The DEPUTY SPEAKER: Is this normal? Can we do it? We do not know if we can, but we are checking the records. It sounds simple, but it might not be.

An honourable member: You can suspend standing orders.

The DEPUTY SPEAKER: But then we have to have a whole majority and so on. How much more do you have, member for Heysen?

Ms REDMOND: About 30 seconds' worth.

The DEPUTY SPEAKER: Thirty seconds? Let's just pretend, then.

Ms REDMOND: Thank you, Deputy Speaker. I will be extremely quick. The upshot is that, while the committee was extremely sympathetic to the notion purporting to be furthered by the member in the other place, we came to the conclusion and our recommendation was simply that, although the committee unanimously supports the position that a nonviolent homosexual advance should not of itself give rise to a potential defence of provocation, the committee is satisfied that the law in this regard has already been addressed and that the bill should not be supported. In particular, the committee formed the view that the wording of the bill, especially the use of the term 'merely because', could have unintended consequences regarding the now settled common law position.

Finally, our second recommendation was that, if we did open up the law of provocation for a further, broader debate, we needed to look also at the position with respect to mandatory sentencing. Thank you for your indulgence.

The DEPUTY SPEAKER: Deputy leader—and we are not going to do the same for you.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:23): I am happy for the member to Heysen to have 30 seconds from my time.

The DEPUTY SPEAKER: I have just been told I have set a dangerous precedent.

Ms CHAPMAN: Thank you, Deputy Speaker, and I thank the member for Heysen for her contribution today and also as a member of the Legislative Review Committee. I thank the committee for the work they have done and, even though it ultimately determined that the narrow perspective which was the basis of the Hon. Tammy Franks' bill was not a proper course to proceed for all the reasons that have been outlined, the wider picture in relation to provocation is a matter which deserves attention. I wish also to place on record my appreciation of the current President of the Law Society and Mr Rocco Perrotta, who is the president elect and takes over responsibility at the end of this month, but in particular Mr Jonathan Wells QC, who provided valuable advice to the committee on those matters.

The Liberal Party were very vocal during the state election in respect of the importance of dealing with this whole question of provocation as a defence to the charge of murder. The areas of concern we are particularly desirous of having some attention include the use or abuse of the defence of provocation, usually by males, who use the defence to justify the killing of their partner, usually a wife or spouse, and/or the alleged lover of the spouse, found in bed together or at least under suspicion of having some intimate relations. It has been a standard defence for men sometimes in those situations to use the defence of provocation.

Similarly, there have been circumstances where women have used it on the basis that they believed that the person they shot, maybe a husband or a partner, has had or is alleged to have had intimate sexual relationships, incestuous or otherwise, with a child, sometimes in the household, and that they acted in a manner sufficiently spontaneous to be able to justify that they were provoked into a circumstance of killing that partner.

I had a case where the deceased was a male who had been shot six times by his wife. In short, the history was that he had two children from his previous marriage. Subsequent evidence revealed that the wife had fled from a highly volatile circumstance and in fact went to live in the United States of America, leaving the children with him, in fear that if she did not she would be tracked down and they would all be killed. He remarried my client and they had more children. It was then alleged that there was an incestuous relationship between the father and one of the children, and she killed him, shooting him multiple times.

She was charged with murder. Provocation was raised. In effect, what happened was that the jury—I suppose this is why we have juries and why they are so important—actually found her not guilty of anything, which in itself raises the question: how can you put six bullets into somebody and not even be charged with some kind of assault?

Mr Pederick: You must be a good lawyer.

Ms CHAPMAN: I cannot take all the credit from the legal counsel. We did have to deal with the first wife returning from America after his death hit the headlines, and we had to follow up how we then managed the reintroduction of the natural mother, back from America, to children who had been literally a baby and a toddler when she left. There are consequences of these circumstances, but in that case justice prevailed to some extent if one believes all the information that came out, bearing in mind that in this case the deceased was not there to give his evidence, of course.

Nevertheless, one could probably say that we did need to address the whole question of provocation. We do need to address on a broader scale the use or abuse of this as a defence mechanism, and we need to deal with it fairly promptly. The Liberal Party is very keen on this. We announced it during the election, and we are keen to have a review. I am thankful that the Legislative Review Committee, as is their responsibility of course, dealt with the Tammy Franks bill on the narrow perspective that she raised, but we do need to look at this issue. I am confident that it will come about, even if it is from our side of the house.

We are disappointed that, even with reforms which have already occurred in this area in New South Wales over some time and are now in place, there has been no action from this government to actually precipitate this. Nevertheless, we are not going to be waiting around any longer. Our side of the house will be taking some action on this, and you can look forward to it being considered early in the new year. I thank the Legislative Review Committee for highlighting a number of the other areas that need to be considered, some of which were picked up. I am certainly appreciative of the work done by the committee to consolidate that information.

Ms DIGANCE (Elder) (11:29): I thank those opposite for their support of the work the Legislative Review Committee has done.

Motion carried.

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