Summary

The partial defence of provocation [2]: Provocation is a partial defence to murder. If the prosecution or jury accepts the defence, it results in a conviction for manslaughter instead of murder. The defence developed in English courts in the 16^th and 17^th centuries. At that time, the death penalty was mandatory for persons convicted of murder. In addition, it was considered virtuous for a man of honour to respond with controlled violence to certain forms of offensive behaviour. If he overreacted to some degree, but not disproportionately, such overreaction was considered to be natural human frailty. The current statutory version of the defence in NSW applies where: (a) the act causing death was the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased towards or affecting the accused; and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased.

Debate about the provocation defence [3]: Several criticisms have been made about the defence including that provocation and a loss of self-control is an inappropriate basis for a partial defence; that the defence is gender-biased; that the test for the defence is conceptually confused and difficult for juries to understand; and that, as there is no longer a mandatory sentence for murder, provocation should be taken into account in sentencing. Concerns have, in particular, been expressed about the acceptance of the defence in cases where men have killed their female partners; and in cases where men have killed in response to a non-violent sexual advance by a homosexual person. Some argue that the provocation defence should be reformed, and others, that it should be abolished. Arguments for retaining the defence include that provoked killers are not 'murderers'; that juries should decide questions of culpability; that abolishing the defence would lead to increased sentences and uncertainty, and that it would also increase community dissatisfaction with sentencing.

Statistics on use of provocation defence [4]: A report 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 that provocation was raised in 115 cases and it was successful in 75 of these cases. Other findings included that:

· there were 11 male offenders that successfully relied on provocation in the context of infidelity or the breakdown of an intimate relationship;
· there were 3 male offenders that successfully relied on provocation in the context of an alleged violent confrontation with his female partner;
· there were 11 offenders who successfully relied on provocation in the context of an alleged homosexual advance; and
· there were 10 cases where a woman successfully relied on provocation after killing her violent male partner.

Kate Fitz-Gibbon conducted a review of convictions for manslaughter on the basis of provocation in the NSW Supreme Court in the period from January 2005 to December 2012. This review identified 15 cases where the provocation defence was successful. It was noted that five of these cases involved a non-violent confrontation. In three of these cases the victim was the current or estranged female partner of the male defendant; and in two of these cases, the killing resulted from an allegation of infidelity by the defendant.

Recent provocation defence cases in NSW [5]: A recent provocation defence case is Singh v R. In that case, Mr Singh had moved to Australia on a spousal visa, his wife having already moved to Australia on a study visa. Their relationship began to deteriorate from the time of his arrival in Australia. During an argument, Mr Singh killed his wife, strangling her and cutting her throat at least eight times with a Stanley knife. According to the offender, during their confrontation, his wife had slapped him several times, and told him that she had never loved him, that she only loved another man, and that she would make sure he was kicked out of the country. The offender was charged with murder but the jury convicted him of manslaughter on the basis of provocation. He was sentenced to eight years imprisonment with a non-parole period of six years.

Provocation reform proposals in NSW [6]: In 1997, the NSW Law Reform Commission published a report on provocation, which recommended retaining the defence but reformulating it. 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 it more available to women who kill their violent partners. In 1998, a Working Party published its report on killings in response to homosexual advances, which recommended amending the defence. The recommendations that were made by the Commission and the Working Party have not been implemented.

Provocation reforms in other States [7]: In 2003, Tasmania became the first Australian jurisdiction to abolish the provocation defence. Since then, two other States have also abolished the defence: Victoria in 2005 and Western Australia in 2008. In Queensland, the defence was recently amended to reduce the scope of it being available to those who kill out of sexual possessiveness or jealousy. The Queensland Law Reform Commission had recommended amending, rather than abolishing, the defence but the mandatory life sentence for murder weighed heavily in coming to this conclusion. The Queensland Government has recently stated that, at this stage, it will not amend the defence to expressly exclude cases involving non-violent sexual advances. This is a reform that has been enacted in the ACT and Northern Territory.

Provocation reforms in other countries [8]: The defence of provocation was abolished in New Zealand in 2009. In the United Kingdom, provocation was replaced in 2009 with a new partial defence known as "loss of control". This defence only applies if the defendant's loss of self-control had a "qualifying trigger". One of the triggers is that the loss of self-control was attributable to a thing done or said which constituted circumstances of an extremely grave character; and which caused the defendant to have a justifiable sense of being wronged. However, "the fact that a thing done or said constituted sexual infidelity is to be disregarded". The other trigger is if the defendant's loss of self-control was due to the defendant's fear of serious violence from the victim or another person. In 2009, the Law Reform Commission of Ireland recommended retaining but reformulating the partial defence.

Self-defence and excessive self-defence [9]: The defence of self-defence is a complete defence to murder. If the jury accepts the defence it results in an acquittal. Previously, the defence was defined by the common law. In 2001, the defence was codified in legislation in NSW. The defence applies if: (a) a person believed that their conduct was necessary to defend themself or another person; and (b) the person's conduct was a reasonable response in the circumstances as they perceived them. In 2001, the partial defence of excessive self-defence was also reintroduced in NSW (as with the defence of provocation, this partial defence reduces murder to manslaughter). The partial defence of excessive self-defence applies if a person believed that their conduct was necessary to defend themself but this conduct was not to a reasonable response in the circumstances as they perceived them.

Self-defence and women who kill their violent partners [10]: Longstanding concerns have been held about the difficulties women face in relying on self-defence when they have killed male partners in the context of a prolonged period of domestic violence and for reasons of self-preservation. The difficulties have arisen, in part, because of the traditional association of self-defence with a one-off spontaneous encounter, such as a pub brawl. The legal test for self-defence has evolved over time and may be broad enough to accommodate women's experiences. The current provision does not require that the threat be imminent or that the response be proportionate. However, the application of the defence in this context is still problematic because these continue to be significant factors in determining whether the defence has been made out.

In response to the difficulties that women have faced in relying on self-defence, defence lawyers have attempted to call expert evidence showing that a woman who killed her abusive partner was suffering from "battered woman syndrome". One part of this "syndrome" is that women find it difficult to break out of a cycle of violence because of "learned helplessness". In the 1998 decision of Osland v The Queen, the High Court affirmed that this evidence was admissible but Justice Kirby noted that the syndrome was controversial. More recently, reliance on the battered woman syndrome has been criticised, and researchers have called for an acceptance of expert evidence which places greater emphasis on the social realities of a woman's situation and which reflects the current state of knowledge about the dynamics of abusive relationships.

The reintroduction of the partial defence of excessive self-defence may assist women who have killed their abusive partner but who cannot satisfy all of the elements of self-defence. However, a concern has been raised that the availability of this defence may prevent women from being acquitted on the basis of self-defence, due to the existence of an 'easy' middle option. A Judicial Commission of NSW study on partial defences found that between 2002 and June 2005, two women had successfully relied on the partial defence of excessive self-defence after killing their male partners. In both cases, the woman was under attack when she killed her partner.

Self-defence reforms in other States [11]: Since 1987, most Australian jurisdictions have enacted new statutory provisions on the complete defence of self-defence. Some jurisdictions have also reintroduced the partial defence of excessive self defence. This paper focused on developments in three States: Victoria, Western Australia, and Queensland.

Victoria (in 2005) and Western Australia (in 2008) both enacted new provisions on the complete defence of self-defence and they also both reintroduced the partial defence of excessive self-defence (in Victoria, this was achieved by enacting a new provision on "defensive homicide"). Victoria also introduced special provisions that apply when family violence is alleged. The provisions state that a person may have reasonable grounds for believing that their conduct was necessary to defend themself even if they were responding to harm that was not immediate, or their response involved the use of excessive force. The provisions also set out a non-exhaustive list of the kinds of evidence that might be relevant to determining whether the person had the requisite belief and whether there were reasonable grounds for the belief. The way in which the defensive homicide provision has operated in Victoria (being mainly used by men) has attracted criticism and it is currently under review.

In Queensland, the provisions on self-defence have not been reformed but in 2011 a new partial defence to homicide was enacted: "killing for preservation in an abusive relationship". This implemented, in part, the recommendations by two academics, who were commissioned by the Attorney-General in 2009 to consider the development of a separate defence for battered persons who kill their abusers. The report by the academics noted that there was a strong preference from within the legal community for a separate defence rather than for reform of the general law of self-defence. The report also noted that there was insufficient support for a separate complete defence. Commentators have been critical of the new partial defence which, they say, is very similar to the defence of self-defence but leads to a different result.

Self-defence reports in other countries [12]: There have been no legislative reforms to self-defence in other countries such as New Zealand, the United Kingdom, Ireland and Canada. Of these countries, only in New Zealand and Ireland has the relevant law reform commission considered the issue of self-defence for women who kill their violent partners. In 2001, the New Zealand Law Reform Commission recommended amending the law of self-defence to make it clear that there can be situations in which the use of force is reasonable where the danger is not imminent but is inevitable. A 2009 report by the Law Reform Commission of Ireland did not recommend any major reforms.

National report on legal responses to family violence [13]: In October 2010, the Australian Law Reform Commission and the NSW Law Reform Commission jointly published a comprehensive report on family violence. One section of the report examined defences to homicide, including provocation and self-defence. The report made some general recommendations including: that governments should ensure that defences to homicide accommodate the experiences of family violence victims who kill; that governments should review their defences; and also that legislation should provide guidance about the potential relevance of family-violence related evidence in the context of a defence to homicide (along the lines of the Victorian model).