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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-10-15 Daily Xml
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Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Bill

Introduction and First Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (15:31): obtained leave and introduced a bill for an act to amend the Bail Act 1985, the Criminal Law Consolidation Act 1935, the Evidence Act 1929 and the Sentencing Act 2017. Read a first time.

Second Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (15:32): I move:

That this bill be now read a second time.

I am pleased to introduce the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Bill 2020. This bill implements the preferred recommendations in stage 1 and stage 2 reports of the South Australian Law Reform Institute (SALRI), entitled 'The Provoking Operation of Provocation'. The SALRI reports recommended that the common law defence of provocation should be abolished. At common law, if successfully raised provocation operates as a partial defence, reducing murder to manslaughter. The defence has been criticised for being complex, gender-biased and encouraging victim blaming.

It is at odds with community expectations that, regardless of the degree of provocation, ordinary people should not resort to lethal violence. Sometimes referred to as the gay panic defence, it has been controversial in its use by accused persons who have perpetrated violence against members of the gay community. Notwithstanding that the defence was rarely successful in this context, this aspect of its operation is offensive and unacceptable. The defence has had some limited utility in the case of women who, having been the victims of prolonged family violence, finally retaliate against their abuser. Absent the defence, these women may be convicted of murder and face a mandatory sentence of life imprisonment, and a mandatory minimum non-parole period of 20 years.

In line with the recommendations in the SALRI reports, the bill addresses this issue by ensuring that evidence of family violence and the circumstances surrounding it can be taken into account both at trial, particularly in the context of defences of self-defence and duress where the dynamics of a domestic relationship may be especially relevant and in sentencing, including in relation to murder.

It seeks to strike a balance between ensuring the changes to the law operate fairly and practically, and that they do so without unintended consequences. To this end, the bill contains amendments to the Criminal Law Consolidation Act 1935, the Evidence Act 1929, the Sentencing Act 2017 and the Bail Act 1985.

The common law defences of provocation, duress, necessity and marital coercion are abolished by clause 6 of the bill, inserting new section 14B into the CLCA. Duress and necessity are replaced by statutory provisions, the latter called sudden or extraordinary emergency in clause 8. These sit with the provisions regarding self-defence and defence of property in part 3, division 2, now renamed Defences.

The new statutory defences of duress and sudden or extraordinary emergency reflect the common law. They do not operate as defences in relation to murder or related offences such as attempted murder, conspiring or soliciting to commit murder, aiding or abetting murder, and such other offences as may be prescribed by regulation the future.

Clause 7 of the bill amends section 15B of the CLCA. That section currently provides that, while defensive action needs to be proportionate to the threat, this requirement does not necessarily mean that the force used by the defendant cannot exceed the force used against them. Clause 7 adds to this by providing that, where the defensive action is taken in circumstances of family violence, the question of proportionality is to be determined having regard to any evidence of family violence before the court.

This provision ensures that the history and dynamics of the relationship between the accused and the alleged victim are placed before the jury. Further, it clarifies that the CLCA provisions are to be construed by reference to definitions of the terms 'circumstances of family violence' and 'evidence of family violence' inserted in the Evidence Act by this bill.

Clause 9 abolishes part 9, division 13 of the CLCA and, with it, section 328A. That section contained a defence of marital coercion for certain offences committed by a wife in the presence of and under the coercion of her husband.

Clause 10 inserts a new division—part 3, division 4—into the Evidence Act. Part 3 of the Evidence Act currently comprises three divisions dealing with rules of evidence in general cases, sexual cases and the admissibility of evidence showing discreditable conduct or disposition. New division 4 provides guidance to the courts in dealing with offences committed in circumstances of family violence. Key concepts, such as circumstances of family violence, abuse and member of a person's family, are defined to assist courts trying and sentencing for such offences. There is an inclusive definition of what amounts to evidence of family violence.

Expert evidence relating to the nature and effect of family violence, called social framework evidence, can be admitted in prescribed proceedings to provide context to the experience of victims of family violence. Prescribed proceedings are those where a defendant asserts the offence occurred in circumstances of family violence and self-defence, duress or sudden or extraordinary emergency are raised by the defendant. New section 34Y requires a judge to identify and explain the purposes for which evidence of family violence may or may not be used.

Clause 11 of the bill contains a further amendment to the Evidence Act. It allows section 69A to allow for a court to make a suppression order in relation to evidence given by or relating to a defendant where that evidence relates to family violence suffered by a defendant and is of a humiliating or degrading nature.

Clause 12 of the bill amends section 48 of the Sentencing Act. Section 47(5)(b) of the Sentencing Act provides that the mandatory minimum non-parole period for murder is 20 years. Section 47(5)(d) provides that the mandatory minimum non-parole period for serious offences against the person is four-fifths of the head sentence. Serious offences against the person are major indictable offences that result in the death or total incapacity of the victim or conspiracy to commit or aiding and abetting the commission of such an offence.

Currently, these mandatory minimum non-parole periods can only be departed from where special reasons exist. Section 48(3) contains an exhaustive list of special reasons. The amendments to section 48 will allow a sentencing court to depart from the 20-year mandatory minimum non-parole period for murder or four-fifths of the head sentence for serious offences against the person in exceptional circumstances.

Exceptional circumstances may include each of the three factors that currently constitute special reasons as well as an additional factor, namely, that the offence was committed in circumstances of family violence. It is no longer an exhaustive list.

Finally, clause 4 of the bill amends the Bail Act 1985 to provide that there is a presumption against bail being granted to persons accused of murder. They will have to establish exceptional circumstances in order to justify a grant of bail. This change is being made to ensure consistency with how the persons accused of other serious offences are treated in relation to bail.

Taken as a whole, the bill will impact positively on the community by removing defences that are out of step with community expectations, in particular by abolishing the defences of provocation and marital coercion and by giving the courts greater flexibility to consider defensive actions taken in the context of family violence as mitigating circumstances in sentencing. It ensures that the issues of domestic violence can be properly ventilated in courts by creating special evidentiary provisions relating to evidence of family violence.

These provisions put the impact upon victims of domestic violence front and centre of criminal trials and ensure that both the trier of fact and the sentencing court must have regard to such evidence. The bill will also ensure the defendants who have themselves been a victim of domestic violence may be afforded the protection of a suppression order in respect of evidence relating to that domestic violence that is humiliating or degrading in its nature, whether that evidence is given by the defendant or another witness. I commend the bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Bail Act 1985

4—Amendment of section 10A—Presumption against bail in certain cases

This clause amends section 10A of the principal Act to include murder in the list of offences where there is a presumption against bail.

Part 3—Amendment of Criminal Law Consolidation Act 1935

5—Amendment of heading to Part 3 Division 2

This clause makes a consequential amendment to the heading to Part 3 Division 2 of the principal Act.

6—Insertion of section 14B

This clause inserts new section 14B into the principal Act, abolishing the specified common law defences.

7—Amendment of section 15B—Reasonable proportionality

This clause amends section 15B of the principal Act to require a court, in determining whether particular conduct was reasonably proportionate to a particular threat, where a defendant asserts that an offence occurred in circumstances of family violence, to have regard to any evidence of family violence admitted in the course of the trial for the offence.

8—Insertion of sections 15D and 15E

This clause inserts new sections 15D and 15E into the principal Act, codifying the common law defences of duress and necessity abolished by clause 6.

9—Repeal of Part 9 Division 13

This clause repeals Part 9 Division 13 of the principal Act, made redundant by the provisions of this measure.

Part 4—Amendment of Evidence Act 1929

10—Insertion of Part 3 Division 4

This clause inserts a new Division 4 into Part 3 of the Evidence Act 1929 as follows:

Division 4—Evidence in proceedings where circumstances of family violence

34U—Interpretation

This proposed section defines terms used in the Division.

34V—Circumstances of family violence

This proposed section sets out the meaning of an offence being committed, or other event occurring, in circumstances of family violence. This meaning applies to all Acts in the absence of a contrary intention.

34W—Evidence of family violence

This proposed section sets out what is evidence of family violence. This meaning applies to all Acts in the absence of a contrary intention.

34X—Certain expert evidence relating to nature and effect of family violence to be admissible

This proposed section allows expert evidence of the nature and effect of family violence to be admissible in certain legal proceedings.

34Y—Trial directions relating to evidence of family violence

This proposed section requires a judge to identify and explain the purpose for which evidence of family violence may, and may not, be used if admitted in the trial of an offence committed in circumstances of family violence.

11—Amendment of section 69A—Suppression orders

This clause amends section 69A of the principal Act to allow a court to make suppression orders in relation to certain evidence relating to family violence.

Part 5—Amendment of Sentencing Act 2017

12—Amendment of section 48—Mandatory minimum non-parole periods and proportionality

This clause amends section 48 of the principal Act to allow a sentencing court to set a lower non-parole period than that required under section 47 of that Act in prescribed or exceptional circumstances. Exceptional circumstances may include the commission of an offence in specified circumstances of family violence.

Debate adjourned on motion of Hon. I.K. Hunter.

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