Legislative Review Committee: Partial Defence of Provocation

The Hon. G.A. KANDELAARS (16:57): I move:

That the report of the committee into the Partial Defence of Provocation be noted.

On 1 May 2013, the Hon. Tammy Franks introduced the Criminal Law Consolidation (Provocation) Amendment Bill 2013 into the Legislative Council. The bill proposed to amend the Criminal Law Consolidation Act 1935 by way of insertion of new section 11A to limit the partial defence of provocation, which I will otherwise simply refer to 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, allows 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 the potential consequences. By way of comparison, self-defence can provide a complete defence to the charge of murder, entitling the accused to a full acquittal without further penalty.

The bill seeks to address the possibility that a non-violent homosexual advance can be pursued to establish a provocation defence or what has often been termed the 'gay panic defence'. The honourable member, in her second reading explanation, referred to Australian society's increased acceptance of homosexuality and her desire to ensure that homophobic violence will not be tolerated. Also noted were the considerable reforms which had taken place in other Australian jurisdictions.

The committee strongly agrees with the honourable member's desire to ensure that homophobic violence should not be tolerated. I repeat: 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 that it should be an obligation of the law to effectively deter such behaviour.

On 30 October 2013, following debate in respect of the bill, the Legislative Council resolved that the bill would be withdrawn and referred to the Legislative Review Committee for inquiry and report, pursuant to section 16(1)(a) of the Parliamentary Committees Act 1991. On 7 June 2014, an invitation to make submissions to the inquiry was advertised both in The Advertiser and The Australian, and 12 submissions were received.

Despite the fact that it was clear from the submissions received that the majority of community members supported the intent of the bill, the submissions received by the committee appeared to be divided into three camps, being those who supported the bill; those who supported the bill but sought broader reforms; 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 Supreme Court of Criminal Appeal, R v Lindsay 2014, a case involving an accused who had 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, with which Chief Justice Kourakis agreed, appears to clearly 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 activity.

Justice Peek did not allow the defence of provocation 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, Green v The Queen (1997). 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 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 at trial as one of the circumstances relevant to provocation. 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 a provocation defence, and it would not be limited to the bill presented by the Hon. Tammy Franks.

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

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. It is however, the committee's view 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.

The committee was also unable to agree with submissions in favour of the abolition of the provocation defence and takes the view that it may serve as an important function in certain instances such as those involving high levels of provocation. Although the committee supports the position that a non-violent homosexual advance should not of itself give rise to a 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 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, it is of the view that the defence should be retained.

I need to just quickly comment on the Hon. John Darley's dissenting statement. The committee did give consideration to the total abolition of the partial defence of provocation 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 this council.

The committee did, however, recommend that if any review or reform of the provocation defence is to be pursued in future, such a review or reform should only take place in conjunction with a wholesale review of any mandatory sentencing provisions that may also apply in South Australia to a person convicted of murder.

In conclusion, on behalf of the committee I thank all those who made submissions and gave evidence to it. I thank the members of the committee, the Hon. John Darley MLC, the Hon. Andrew McLachlan MLC, Ms Annabel Digance, member for Elder, Mr Lee Odenwalder, member for Little Para, and Ms Isobel Redmond, member for Heysen. I also thank the committee Secretariat, Ms Jennifer Fitzgerald, the committee secretary, and Mr Ben Cranwell, the committee research officer, who did a sterling job in providing support for the committee throughout this inquiry and regarding this report. I commend the report to the council.

Motion carried.