This opinion piece first appeared in the Sydney Morning Herald on 20 February 2013.
On Wednesday, the Select Committee of the NSW Parliamentary Inquiry into the partial defence of provocation will release its final report recommending reform to a law that has long animated debate and attracted criticism.
Provocation operates as a partial defence to murder, whereby a person who kills another person as a result of a loss of control that was induced by the conduct of the victim may be convicted of manslaughter rather than the more serious offence of murder. One of the key tests involved is that the prosecution must disprove that an ordinary person faced with the same provocative conduct would not have lost their self-control and formed the intention to kill or inflict grievous bodily harm.
Provocation has been criticised for being many things - a gender-biased excuse for jealous and controlling men, an outdated defence that has no place in a justice system without mandatory penalties for murder, an avenue of excuse for homophobic males and a defence which allows the victim, not the offender, to be put on trial and blamed for the lethal violence perpetrated against them. However, it has also been hailed as an important halfway house between murder and self-defence for women who kill in response to prolonged domestic abuse.
With these divergent views in mind, the inquiry must recommend to the government a way forward for the provocation defence in NSW. The Parliament inquiry was formed last June largely in response to public outrage surrounding the trial and sentencing of Chamanjot Singh for the death of his wife, Manpreet Kaur. Singh successfully raised provocation after he slit his wife's throat with a box cutter. He argued he had been provoked to kill his wife because of suspicions of infidelity, disparaging comments made about his mother by his wife and her sister's husband, a belief the relationship was ending and that consequently he would be deported.In explaining the community outrage following the verdict, the NSW Office of the Director of Public Prosecutions commented ''the community rightly expects that men in the same circumstance should not resort to violence, and certainly not the level of violence perpetrated by this accused on the deceased.''
Singh is certainly not the first man in NSW or other Australian jurisdictions to kill his wife and raise provocation in what are widely considered unmeritorious circumstances - the catalogue of Australian provocation injustices is indeed disturbing when considered in totality - what is important is the Singh case was pivotal in putting provocation back on the law and order agenda in NSW. It has opened up the opportunity for NSW to abolish a defence vastly out of line with community expectations of acceptable and unacceptable lethal violence.
The inquiry has taken submissions and heard evidence from a range of stakeholders. Debates have largely centred on whether provocation should be abolished, reformed or retained in its current form.
While several of these reforms have merit on paper, the experiences of other Australian states provides warnings on the unintended and unpredictable effects of law reform that tinkers at the edges. If the select committee recommends retention of the provocation defence, there is undoubtedly the key risk it will be used in undesirable ways. The only way to prevent this is to abolish provocation and to transfer any consideration of provocation to sentencing for murder.
Through this model, men like Chamanjot Singh would have their lethal actions appropriately labelled as murder, and the alleged provocative actions of victims, such as Manpreet Kaur, would not be used against them at trial to legitimise their deaths.
Some have argued that abolishing provocation increases the risk of injustice for abused women who kill and are unable to raise a complete defence of self-defence. In this respect, NSW benefits from the luxury of no mandatory penalties for the offence of murder. Experienced members of the Supreme Court judiciary in such cases should be guided to use the given flexibility in sentencing for mitigating circumstances where a person kills in response to a history of abuse.
This week, the select committee has an opportunity to recommend abolition of the law of provocation in NSW and to close off an avenue of excuse that has long plagued the criminal justice system. The key question is, will the inquiry be brave enough to recognise the inherent injustice of the provocation defence and to ensure Chamanjot Singh is the last man to kill his wife and abuse an outdated avenue away from murder?
Link to SMH article: http://www.smh.com.au/opinion/politics/time-to-act--provocation-must-be-...