NSW Government urged to rethink decision to retain and restrict controversial provocation defence

Deakin University Criminologist, Dr Kate Fitz-Gibbon, urged the NSW Government to reconsider its recommendations to retain a restricted version of the partial defence of provocation arguing the proposed reform will leave people who kill in response to prolonged family violence vulnerable.

Her comments follow the release late yesterday of a Draft Billrecommending that a reformed version of provocation be retained with significant restrictions.

The Government's recommendations follow the April 2013 release of the Final Report of the Select Committee of the NSW Parliamentary Inquiry into the partial defence of provocation.

In its present from, provocation provides a partial defence for acts of lethal violence where the conduct of the deceased caused the defendant to lose their self-control and kill.

Dr Fitz-Gibbon's research has highlighted the problematic use of the provocation defence by men who kill within the context of an intimate relationship, often in response to relationship separation or an alleged confession of infidelity.

"In these cases, a conviction for manslaughter by reason of provocation sends a highly concerning message to the community that the actions of these jealous and controlling men have been partially understood and legitimised by our criminal justice system."

Dr Fitz-Gibbon said while the Committee recognised the abuse of the defence by male defendants they recommended retaining a reformed version of provocation amid concerns that abolition would disadvantage battered women unable to raise a complete defence of self-defence.

"Without provocation, the Committee feared that in exceptional cases these vulnerable defendants would be convicted of murder and risk long terms of imprisonment," she said.

"While the Government claims that the draft Bill reflects the policy intent of the Select Committee, there are significant differences between the reforms recommended by the Committee earlier this year and that drafted by the O'Farrell government."

Dr Fitz-Gibbon said the Draft Bill proposes that under the new partial defence of extreme provocation, the defence will now require that the provocative conduct on the part of the victim be a serious indictable offence.

"This is a clear attempt by the government to significantly restrict the applicability of the defence, however, it raises the question of why the government won't go one step further and abolish provocation altogether," she said

"Other important restrictions in the new defence include that a non violent sexual advance can never constituted 'extreme provocation' – which is undoubtedly an important inclusion in light of the historical abuse of the provocation defence in 'gay panic' cases."

"In many respects the Draft Bill is a step forward, it would prevent jealous and controlling men from raising a partial defence of provocation and it rightly recognises that a non-violent sexual advance should never constitute conduct sufficient enough to reduce murder to manslaughter."

Dr Fitz-Gibbon said limiting the provocative conduct to serious indictable offences will present significant barriers for persons who kill in response to prolonged family violence and are unable to raise a complete defence of self-defence.

"If these women could prove a serious indictable offence then they should be able to access a complete defence to murder," she said.

"The Government's Bill is unlikely to protect the very category of defendant for whom the Committee recommended retaining the defence for.

"In light of this we have to question why is the defence being retained?"

Dr Fitz-Gibbon believes the justice system would be better served by abolishing provocation and considering the effect of any provocative conduct in sentencing for murder.

"While there are some restrictions on minimum sentencing in NSW, the highly experienced members of the Supreme Court judiciary would be able to apply their discretion to determine the extent to which provocative conduct should mitigate or aggravate a sentence for murder," she said.

"By considering provocation on sentence the law of homicide would not be seen to partially legitimise, or even excuse, the actions of these men."

Dr Fitz-Gibbon said the Government's paper recommends that the Law Reform Commission conduct a review of the law of homicide in five years.

"I urge the government not to wait another five years before abolishing the defence of provocation," she said.

"The proposed Bill restricts the defence to the point of redundancy."

"Homicide law in NSW would undoubtedly be better served by the abolition of the controversial provocation defence."