Provocation is a partial defence to murder, which has attracted controversy and critique in every Australian criminal justice system except South Australia … until now.
Courtesy of concerns surrounding the ‘gay panic’ defence, South Australia has joined the provocation debate and has already begun to take steps to minimising the application of this controversial law.
Provocation is a partial defence to murder which where successfully raised reduces what would otherwise be murder to manslaughter. A reduction in culpability that has a significant impact in sentencing. It is based on the premise that a degree understanding should be afforded to those who lose their self-control and perpetrate lethal violence in response to provocative conduct on the part of the victim, or a third party.
Provocation has been abolished as a partial defence to murder in Victoria, Western Australia and Tasmania. The applicability of the defence has been restricted in Queensland, Northern Territory and Australian Capital Territory. Most recently, in April 2013 a NSW Parliamentary Inquiry recommended reform to exclude certain contexts of lethal violence from giving rise to a partial defence of provocation.
These jurisdictions have rightly recognised that this partial defence to murder is conceptually flawed. It was designed and implemented in England in the 17th century by men, for men. Consequently its current operation in the 21st century privileges the contexts within which men commit lethal violence and upholds out-dated notions of male honour that are gender biased and unreflective of present community values.
The unjust operation of the defence is most evident in the successful use of provocation by men who kill in the context of relationship separation and infidelity or in response to a non-violent homosexual advance. The successful use of the defence in these cases is vastly out line with current expectations of ‘ordinary’ and ‘reasonable’ human behaviour.
By its very design the law of provocation encourages the legal delegitimisation of the victim. This is a key problem with the foundations of the defence that cannot be overcome through an approach to reform that retains the defence in any form. In raising provocation the offender seeks to put the words or actions of the victim on trial in order to illustrate how their use of lethal violence was provoked. Consequently, it is the victim of the homicide – often female – who is put on trial in cases where this partial defence is raised. This is a highly problematic trend.
It is for these reasons that South Australia must abolish provocation and transfer any consideration of provocative conduct to the realm of sentencing.
The problematic use of the provocation defence by male defendants cannot, and should not, be ignored. Case law from across all Australian jurisdictions illustrates that the successful use of provocation by jealous and controlling men who have killed their female partners do not represent one off injustices of the defence. Men such as James Ramage and Peter Keogh in Victoria, Chamanjot Singh and Bradley Stevens in New South Wales, Damien Sebo and Gary Mills in Queensland are not the exceptions to the rule. If available the provocation defence will be abused and will continue to provide a legal legitimisation for lethal violence committed by men. It is time for the South Australian parliament to recognise the defence’s long catalogue of injustices and to ensure that this avenue of excuse is closed in the South Australian criminal justice system.
Recent reforms implemented in South Australia to exclude the use of the provocation defence in cases involving a non-violent homosexual advance represent an important and much needed reform. It is difficult to fathom that any member of the community in today’s society who would believe that such non-violent conduct is provocative enough to provoke an ordinary person to lose their self-control and kill. This reform, however, should be viewed as merely one of several steps needed in South Australia to clear this jurisdiction of a defence that has continued to stain Australian criminal court systems.
The transfer of provocation to sentencing should be undertaken alongside a comprehensive review of the law of homicide and the sentencing structures for murder and manslaughter. The relationship between the partial defences to murder and sentencing structures for homicide offences are intensely interrelated and consequently, it is difficult – if not impossible – to consider reform to one without the other. While this represents a major reform of the law it is a reform that should be prioritised and is long overdue.
As part of this, South Australia should look to remove the mandatory life sentence for murder in favour of a discretionary approach to sentencing that could better reflect the varying culpabilities with which lethal violence is committed. South Australia is one of only three criminal jurisdictions in Australia that continues to impose this rigid approach to sentencing for murder. One of the many advantages of abolishing the mandatory life sentence would be that it will allow for the adoption of a framework through which provocation could be adequately considered, where appropriate, as mitigating in sentencing for murder. Adopting a comprehensive approach to considering provocation in sentencing will ensure that the narratives of victim blame and denial historically associated with the defence do not accompany its transfer to the sentencing stage of court process.
This is essential reform to bring the criminal law in South Australia into line with community values and expectations of human behaviour and to prevent the list of injustices caused by the defence from lengthening.
It is important that the current momentum to review the law is transferred into meaningful reform that will ensure that the injustices of the provocation defence do not continue to plague the South Australian criminal justice system.
Click here  to read Kate's submisson to South Australian parliament.