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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-03-09 Daily Xml
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Parliamentary Committees

Legislative Review Committee: Partial Defence of Provocation

The Hon. G.A. KANDELAARS (15:57): I move:

That the interim report of the committee, on the review of the report of the committee into the 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 Legislative Council. The 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 the potential consequences. By way of comparison, self-defence provides a complete defence to a charge of murder, entitling the accused to a full acquittal without any 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On 30 October 2013, following debate in respect of the bill, the Legislative Council resolved that the bill would be withdrawn and referred to the Legislative Review Committee for inquiry and report pursuant to section 16(1)(a) of the Parliamentary Committees Act 1991. 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 homosexual after that male had made a homosexual advance to 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 that it was no longer unlawful for consenting adults to engage in homosexual sexual activity. Consequently, Justice Peek did not allow a provocation defence to be put to the jury in the circumstances of Lindsay.

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.

In particular, the High Court noted, for example, the fact that an offer was made to the appellant for sex in the appellant's home, and that it was also considered there may have been a further 'pungency' as a result of an 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.

On 13 May 2015, on a motion of the Legislative Council and as a matter of urgency, the Legislative Review Committee reviewed 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 Incorporated and the South Australian Law Reform Institute, seeking further comment.

In response to the committee, no parties changed their views as expressed to the initial inquiry. However, the committee 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 the murder of Mr Andrew Negre. The second retrial is currently scheduled to commence on Monday 15 March 2016. I commend the interim report to the council.

Debate adjourned on motion of Hon. J.M. Gazzola.

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