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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2016-04-13 Daily Xml
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Legislative Review Committee: Partial Defence of Provocation

Mr ODENWALDER (Little Para) (11:11): I move:

That the interim report of the committee, entitled Review of the Report of the Legislative Review Committee into the Partial Defence of Provocation, be noted.

On 1 May 2013, the Hon. Tammy Franks in another place introduced the Criminal Law Consolidation (Provocation) Amendment Bill 2013 into the Legislative Council. This bill proposed to amend the Criminal Law Consolidation Act 1935 by way of the insertion of a new section 11A to limit the partial defence of provocation (the 'provocation defence').

The provocation defence, if established, allows 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 sought 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'.

On 30 October 2013, following debate in respect of this bill, the Legislative Council resolved that the bill would be withdrawn and referred to the committee for inquiry and report, pursuant to section 16 of the Parliamentary Committees Act. This resulted in the committee's initial inquiry into the partial defence of provocation. The judgement of the South Australian Court of Criminal Appeal in Lindsay v The Queen was referred to in a number of submissions to the initial inquiry.

The case involved an accused who had sought to establish a provocation defence following the killing of a gay man, after that man had allegedly made sexual advances towards the accused. The judgement of the Hon. Justice Peek in Lindsay, with which the Hon. Chief Justice Kourakis agreed, observed:

…that homosexuality is now largely accepted as part of contemporary Australian society, and…it was no longer unlawful for consenting adults to engage in homosexual sexual activity.

Consequently, Justice Peek did not allow a provocation defence be put to the jury in the circumstances of Lindsay. Then, on 2 December 2014, the committee tabled the Report of the Legislative Review Committee into the Partial Defence of Provocation, which noted the observations of Justice Peek. On 6 May 2015, in the matter of Lindsay v The Queen, the High Court of Australia set aside the order of the South Australian Court of Criminal Appeal and ordered a new trial.

The majority judgement of the High Court observed that there were a number of potential sources of provocation which should have resulted in the defence being left to the jury for consideration in the circumstances of Lindsay. Particularly, the High Court noted, for example, the fact that an offer was made to the appellant for sex in the appellant's home, and it was also considered there may have been further 'pungency' (the word of the court) as a result of the offer of money for sex being made by a Caucasian man to an Aboriginal man in such circumstances. These matters were considered to extend beyond the relevance of the homosexual advance or the gay panic.

Subsequently, on 13 May 2015, on motion of the Legislative Council, the Legislative Review Committee was asked to review its initial report into the partial defence of provocation. The committee wrote to the individuals and organisations who made submissions to the initial inquiry, as well as to the Aboriginal Legal Rights Movement and the South Australian Law Reform Institute, seeking further comment. No parties changed their views as expressed to the initial inquiry.

There was much lively debate in the committee and I have to admit that my views on this matter evolved and changed as the inquiry wound on, but the committee ultimately resolved that it would not be prudent to make further recommendations and findings until the resolution of the process of the retrial of Mr Lindsay on a charge of murder.

The court has now heard the second retrial and Mr Lindsay has been found guilty of murder—that was on 30 March—however, there is now a 28-day period, I am advised, during which he can, if he wishes, lodge an appeal, so that process has not been finalised and the committee awaits the result of that process. In the interim, I commend the interim report to the house.

Ms REDMOND (Heysen) (11:15): I wish to just add a few brief comments to the very efficient summary provided by the member for Little Para on the other side primarily to emphasise that it would be fair to say that, whilst I do not want to put words in the mouths of any member of the committee, everyone on the committee basically agreed that a nonviolent homosexual advance should not of itself be a basis upon which anyone should be able to claim and receive the benefit of a partial defence of provocation.

As the member pointed out, it is a partial defence in that it does not provide an absolute defence to a charge of murder, but it does enable that charge to be reduced to a charge of manslaughter. No-one found issue with the original intention, the fundamental intention, of the bill introduced by the Hon. Tammy Franks in the other place.

The issue for the committee has been to try to consider whether the proposed legislation would have the effect that the honourable member in the other place was intending and whether any unforeseen difficulties could arise from the passing of the legislation as proposed by the member, however well-intentioned that legislation may have been.

I think it might be useful to put on the record the summary of what the High Court had to say. As has been pointed out, this matter has been to the High Court. It has now been back for another trial in South Australia. That trial was determined only a matter of days ago really and we are now in the 28-day appeal period between the determination, which was a finding of guilty of murder by the jury, and sentencing.

If an appeal is lodged then obviously there will be a further delay before the committee will make its final report because the further determination of the appeal will have to take place. If there is no appeal lodged then sentencing submissions will be heard just after the expiry of that period and we will be able to finalise our report, but we did determine that it would be inappropriate for the committee to come to a final conclusion whilst this particularly key case was still ongoing in our judicial system.

However, I do want to put on the record the summary that was issued by the High Court in Lindsay v The Queen reported in 2015, HCA, page 16. The High Court unanimously allowed an appeal from the Court of Criminal Appeal in South Australia and they quashed the appellant's conviction. The appellant was the Aboriginal man, Lindsay. They quashed his conviction for murder and they ordered a new trial and they describe it as follows:

The appellant, an Aboriginal man, was tried before a jury for the murder of Andrew Roger Negre. The appellant, his de facto wife and a friend met the deceased, who was not previously known to them, at a hotel. When they left the hotel, all four went to the appellant's home to have some further drinks. It was open to the jury to find that the deceased made sexual advances towards the appellant at the appellant's home and these culminated in an offer, made in the presence of the appellant's de facto wife and others, to pay the appellant for sex. It was also open to find that the appellant killed the deceased in a state of loss of self-control following the making of that offer.

The High Court goes on to say:

In South Australia, the partial defence of provocation under the common law operates to reduce murder to manslaughter. The trial judge directed the jury that it was incumbent on the prosecution to prove that the appellant was not acting under provocation at the time of the killing. The appellant was convicted for murder.

On appeal, a majority of the CCA [in South Australia] held that the directions given [by the initial judge] to the jury on provocation were flawed in respects that amounted to a miscarriage of justice. However, the CCA concluded that the evidence taken at its highest could not satisfy the objective limb of the partial defence of provocation—

I won't go into the details of what is the objective and what is the subjective limb, suffice to say that this is a quite complex area of law which involves consideration of a range of factors given various amounts of weight—

that is, that no reasonable jury could fail to find that an ordinary person, provoked to the degree that the appellant was provoked, could not have so far lost his self-control as to form the intention to kill or inflict grievous bodily harm and to act as the appellant did. The CCA majority held that provocation should therefore not have been left for the jury's consideration and it followed that the erroneous directions had not occasioned a substantial miscarriage of justice.

The Court of Criminal Appeal then dismissed the appeal and that was what then went up to the High Court. If you ever have the chance, I would recommend that all members in this place go along to see the High Court in action, because what they do is they hear these arguments for what is called special leave to appeal, and they are remarkably quick. They are not the ponderous, slow, lengthy, day-by-day cross-examinations that you often find in other cases in our lower courts. Rather, the High Court is the really quick place. If you want a really entertaining day, the next time the High Court is hearing cases in Adelaide, I would recommend you go along and have a look.

By grant of special leave, the appellant appealed to the High Court. The court unanimously allowed the appeal, holding that the trial judge was right to leave provocation to the jury. The High Court said there is a need for caution before a court determines as a matter of law that contemporary attitudes to sexual relations are such that conduct is incapable of constituting provocation.

That is, what was originally said by the original trial judge that in this day and age you could not possibly argue that a non-violent sexual advance in somewhat other circumstances to those that occurred here would be a basis to argue a defence of partial provocation. The High Court goes on:

The gravity of the provocation must be assessed from the standpoint of the accused. The High Court said it was open to a reasonable jury—

and aren't they all reasonable?—

to consider that an offer of money for sex made by a Caucasian man to an Aboriginal man in the latter's home and in the presence of his wife and family may have had a pungency that an unwelcome sexual advance made by one man toward another in other circumstances would not have. The assessment of the gravity of the provocation and its capacity to satisfy that objective limb of the partial defence were issues for the jury.

The High Court has made a very clear finding there and it is now up to the committee that has been considering this matter to await what happens on the further finding by a jury in this state that the appellant, the Aboriginal man, is guilty of murder. If that is appealed then we have to wait a bit longer, as I said, but if it is not appealed then there will be sentencing based on the finding of murder, having now settled at this stage, as far as we can tell, that the law of provocation as it operates in this state does take account of current social attitudes and cannot be used simply to excuse abhorrent behaviour on the basis of a non-violent homosexual advance in circumstances where other factors are not significantly at play. I will conclude my remarks there.

Mr ODENWALDER (Little Para) (11:24): I thank the member for Heysen for her comments and also her experience and expertise in these matters on the Legislative Review Committee. It is always a good morning on Wednesday morning to have these legal debates, from my position of extreme ignorance. This is obviously a moveable feast; it is ongoing. I look forward to coming back to the house with a final report into provocation. In the meantime, I want to thank the members of the committee and also the staff for working so hard on such a complicated area of law. I commend the report.

Motion carried.

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