Provocation and Self-defence in Intimate Partner and Homophobic Homicides

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.

Briefing Paper No.03/2007 by Lenny Roth

This paper updates a 1996 briefing paper, which examined the defences of provocation and
self-defence in the context of homicides involving intimate partners and homicides in
response to homosexual advances.

Recent data on intimate partner homicides
Nationally, there were on average 77 intimate partner homicides each year in the period
from 1989 to 2002. In 2004/05, there were 66 intimate partner homicides in Australia,
which represented 20 per cent (one in five) of all homicides in Australia. Since 1996, more
new studies have been published on the characteristics of intimate partner homicides.
These studies confirm findings in earlier studies, namely that men are more likely to kill
their female partners (or sexual rivals) out of jealousy, possessiveness or control whereas
women are more likely to kill their male partners in response to violence from them.

Recent data on use of the defences
A report published by the Judicial Commission of NSW contains data on the use of
provocation in NSW in the period from 1990 to 2004. The report found:
• There were 11 male offenders that successfully relied on provocation in the context
of infidelity or the breakdown of an intimate relationship.
• There were 11 offenders who successfully relied on provocation in the context of
an alleged homosexual advance. In at least two cases, the advance was not violent.
• There were 10 cases where a woman who had killed her husband after a history of
physical abuse successfully relied on provocation.
A study by Rebecca Bradfield on homicide cases in NSW from 1985 to 2000 found that
there were 16 cases where females who had killed their spouses successfully relied on the
partial defence of a lack of intent. A separate study by Bradfield of 65 cases of women
who killed their violent spouses across Australia in the period from 1980 to 2000 found that
self-defence was raised in 21 cases and in 9 of these cases the defence was successful.

Examples of successful provocation cases
There was a controversial case in Victoria in 2004 (Ramage), where a male successfully
relied on the defence of provocation after killing his estranged female wife who had told
him that sex with him repulsed her. He was convicted of manslaughter and sentenced to 11
years imprisonment. In the NSW case of Green, a male offender relied on a defence of
provocation after killing his male “friend” who got into bed with him and touched and
grabbed him. He was initially convicted of murder and was sentenced to 15 years
imprisonment. However, the High Court upheld his appeal by a majority of 3 to 2. At the
second trial, he was convicted of manslaughter and sentenced to 10.5 years.

Law reform in New South Wales
In 1997, the NSW Law Reform Commission published its report on provocation, which
recommended retaining the defence but reformulating it in a way that would leave it up to
the jury to decide whether the offender should be partially excused for having lost selfcontrol
and killing. The Commission rejected the option of specifically excluding the
operation of the defence in cases where men killed female partners after a relationship
breakdown, or in cases of killings in response to homosexual advances. It also rejected
the option of removing the “loss of self-control” requirement in the defence to make the
defence more available to battered women who kill. In 1998, a Working Party published
its report on killings in response to homosexual advances, which recommended an
amendment to the provocation defence but not to self-defence. Recommendations made by
the Law Reform Commission and the Working Party to modify the provocation defence
have not yet been implemented. In 2001, the Government enacted laws to clarify the law
of self-defence and to reintroduce the partial defence of excessive self-defence.

Law reform in other Australian jurisdictions
In 1998, the Model Criminal Code Officers Committee recommended that the defence of
provocation be abolished and that the defence of excessive self-defence not be
reintroduced. In 2003, Tasmania became the first state to abolish the defence of
provocation. In 2005, Victoria also abolished provocation along with other reforms
including clarifying the defence of self-defence to make it more available to battered
women who kill, introducing legislative guidance on the relevance of family violence
evidence in relation to a defence of self-defence, and reintroducing the partial defence of
excessive self-defence. The ACT (2004) and the Northern Territory (2006) have both
enacted provisions to exclude non-violent sexual advances from forming the basis of a
defence of provocation. In 2006, the Law Reform Commission of Western Australia
published an issues paper on the law of homicide, which considers reform of provocation
and self-defence generally and in relation to battered women who kill.

Law reform in overseas jurisdictions
New Zealand: In 2001, the NZ Law Commission published its report on defences with
particular reference to battered defendants. It recommended abolishing provocation and
clarifying the law of self-defence to make it more available for battered defendants. The
report also discussed the use of expert evidence on family violence to support a defence of
self-defence. The Commission rejected the options of creating a separate defence for
battered defendants and introducing a defence of excessive self-defence. In 2004, the
Government asked the Law Commission to consider further issues arising from its 2001
report. The Commission is expected to report by the end of June 2007.

United Kingdom: The UK Law Commission recently reviewed the defence of provocation
and recommended that it be reformulated. The Commission rejected the option of
specifically excluding the defence in cases where men kill female partners after a
relationship breakdown. However, it proposed amending the defence to require the
defendant to have acted in response to gross provocation that caused them to have a
justifiable sense of being wronged. With respect to battered women, the Commission
proposed removing the “loss of self-control” requirement in the provocation defence and it
also recommended incorporating excessive self-defence into the defence.

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