Abolishing the Partial Defence of Provocation: An Interview with Dr Kate Fitz-Gibbon

The partial defence of provocation can be argued in a court of law when a person who’s killed another claims to have been provoked by the deceased in such a way that they lost self-control and were therefore less culpable for their actions.

Provocation can reduce a murder charge to one of voluntary manslaughter.

The maximum penalty for murder is life imprisonment (life meaning life) whereas the maximum for manslaughter is 25 years.

Rendered temporarily insane

For the defence of provocation to be accepted, it has to be shown that the deceased acted in such a severe way that an ordinary person would lose control and develop the urge to kill the person provoking them.

Provocation is usually considered to be something that happens immediately before an offence, but it can be applied in circumstances of ongoing aggravation, such as in a domestic violence situation.

In NSW, the provocative conduct must now amount to a serious offence in and of itself, such as an indecent assault accompanied by violence – it cannot just be a general advance.

Provocation is a partial defence as it doesn’t allow the accused to avoid criminal culpability altogether, reduces the type of offence a person is guilty of.

Apart from potentially reducing murder down to manslaughter, evidence of provocation can also be used as a mitigating factor in the sentencing stage of criminal proceedings – in other words, it can be used after a defendant pleads guilty or is found guilty to reduce the penalty that is imposed.

Calls for an amendment to the law

Sticking to the liability phase (ie the determination of guilt or innocence), the partial defence of provocation was criticised in the past for allowing people who fly into jealous rages – or take offence to non-violent sexual advances – to kill others and escape convictions for murder.

But in 2012, a NSW Legislative Council Partial Defence of Provocation inquiry was established to determine whether the defence should be abolished or amended.

The inquiry was launched after the high profile case of Sydney man Chamanjot Singh, who was sentenced to just six years in prison for manslaughter after killing his wife.

On the recommendations of the inquiry, the Crimes Amendment (Provocation) Bill 2014 was passed by the NSW parliament. The bill replaced the partial defence of provocation with a new “partial defence of extreme provocation”; which imposes a far higher test on the types of conduct that can amount to provocation in our state.

But senior lecturer in criminology at Monash University Dr Kate Fitz-Gibbon argues that these amendments did not go far enough.

Doctor of criminology

Dr Fitz-Gibbon is an expert in the areas of family violence, legal responses to lethal violence and the effects of homicide law reform in Australian and international jurisdictions. She has a key focus on issues relating to gender.

Through her research, Dr Fitz-Gibbon has found that Australia’s provocation defence unfairly provides an avenue for men who kill their female partners to avoid murder convictions.

In 2015, she published Homicide Law Reform, Gender and the Provocation Defence: A Comparative Perspective, which outlined her findings.

Her analysis of the controversial law drew from over one hundred interviews with members of the Victorian, NSW and English criminal justice systems.

She’s investigated reforms that have been made to this defence, and their practical effects.

Gay panic

The book was cited in the 2015 High Court case Lindsay v The Queen, where “gay panic” was utilised as a defence.

In the states of Queensland and South Australia, the gay panic defence is still recognised as a form of provocation.

Officially known as the homosexual advancement defence, it essentially says that a sexual advance by someone of the same sex may be enough to render a heterosexual person temporarily insane, potentially reducing a charge of murder down to to manslaughter if the heterosexual person kills the one who made the advance.

Sydney Criminal Lawyers® spoke with Dr Fitz-Gibbon about her research into the partial defence of provocation, and why she believes it should be completely abolished.

Can you outline what the partial defence of provocation is? And how this defence has helped men to avoid murder convictions?

Provocation acts as a partial defence to murder where a defendant successfully argues that they were provoked to use lethal violence. Where the defence is successfully raised the conviction is reduced from murder to manslaughter, a reduction which has significant sentencing ramifications.

In several Australian state and territory jurisdictions provocation has animated debate and led to injustice where it has been raised successfully by men who killed a female intimate partner in response to relationship separation (actual or threatened) and/or sexual infidelity (actual or suspected).

In these cases, the successful use of the partial defence serves to legitimise lethal domestic violence and leads to victim blaming narratives which suggest that the woman victim ‘deserved it’ or was partially responsible for the lethal violence perpetrated against her.

In the past, you’ve cited the 2012 Chamanjot Singh case in NSW, as a reason why provocation laws needed to be changed. What happened in this case?

Chamanjot Singh was sentenced in June 2012 in the NSW Supreme Court to six years’ gaol for slitting his wife’s throat with a box cutter. He was found guilty of manslaughter by provocation, not murder, having successfully argued that he was provoked to kill his wife, Manpreet Kaur, because of suspicions of infidelity, disparaging comments made about his mother by the victim and her sister’s husband, and a belief that the relationship was ending and that he would be deported.

In the Singh case the trial came to focus on the actions and behaviours of the victim of homicide not her undisputed killer. It was Manpreet Kaur who was put on trial, while the successful operation of the partial defence of provocation allowed her husband’s actions to be partially legitimised and excused.

On May 14 2014, the Crimes Amendment (Provocation) Bill 2014 passed before NSW parliament, which replaced the partial defence of provocation with a new “partial defence of extreme provocation.”

At the time, you criticised the bill for not going far enough. What was your argument?

In March 2014, the NSW Government introduced the Crimes Amendment (Provocation) Bill 2014, now enacted in law. The act replaces the heavily discredited partial defence of provocation with a new and heavily restricted ‘partial defence of extreme provocation’.

The reformed defence retains many of the traditional yet controversial features of the provocation defence, including the requirement that a defendant must have lost their self-control and the ordinary person test.

Where it differs from the current law is that under the new partial defence of extreme provocation the provocative conduct on the part of the victim must have been a serious indictable offence.

The reforms sought to restrict the partial defence to prevent its misuse by men who kill in the context of an unwanted non-violent sexual advance, relationship separation and/or sexual infidelity while still retaining the partial defence for persons who kill in response to prolonged family violence but who are unable to raise a complete defence of self-defence.

However, I would argue that the reforms serve to restrict the partial defence to the point of redundancy and that the very category of defendants for whom the defence was retained – women who kill in response to prolonged family violence – will likely be unable to meet the strict requirements of the new ‘extreme’ provocation defence.

Consequently, and given that the reforms will largely render the law of provocation redundant in New South Wales, my research argues that the government would have been better placed to abolish the controversial partial defence altogether and strengthen evidence laws and the complete defence of self-defence to better cater to persons who kill in response to prolonged family violence.

Evidence you’ve produced through your work has helped shape reforms. In which jurisdictions has this occurred? And what sorts of outcomes have they achieved?

I have advised on homicide law reform reviews in Victoria, New South Wales and South Australia, where I have argued that provocation should be abolished as it is an archaic and outdated partial defence to murder that has failed to evolve with community expectations and understandings of the contexts within which lethal violence is committed.

In each jurisdiction divergent reforms have been introduced and given the recency of the reforms their impact in practice are yet to emerge in case law.

This partial defence must have some basis in history. Why was it established in the first place?

The partial defence of provocation was first introduced in England in the 17th century as a concession to human frailty at a time when capital punishment was the mandatory sentence for all persons convicted of murder.

Designed to provide a partial justification for men who killed in defence of their honour, the partial defence ensured an alternative verdict of manslaughter which permitted judicial flexibility in sentencing to impose a punishment other than death.

This defence is not only used in cases of family violence. In the states of Queensland and South Australia “gay panic” is still recognised as a provocation defence.

What do you think about the ability of people being able to utilise this antiquated defence in those states?

The successful use of the partial defence of provocation in cases where a person has killed in response to a non-violent homosexual sexual advance engenders significant concerns surrounding the legal legitimisation of homophobe, the ongoing stigmatisation of homosexual behaviour and the responsibility of the criminal law to establish clear parameters for unacceptable masculine violence.

The successful use of provocation to reduce to manslaughter ‘gay panic’ killings undoubtedly blurs distinctions on what constitutes partially justifiable violence. While the majority of Australian state and territory jurisdictions have reformed the defence to disallow it to be used in this context, such reform has not been introduced nation-wide. There is an urgent need to introduce such reform in all Australian states.

Indeed, your book was cited in the 2015 High Court case of Lindsay v The Queen where gay panic defence was argued.

In 2013, Michael Lindsay claimed he was provoked into killing Andrew Negre, as he’d made repeated advances towards him. An initial jury found him guilty of murder, but the High Court of Australia revoked the charge and ordered a retrial.

The High Court found a miscarriage of justice had occurred, as in South Australia gay panic defence can still be argued, but the original trial judge suggested to the jury that it no longer should be.

On September 2 this year, Lindsay was sentenced to life imprisonment after being found guilty of murder at the retrial.

What did you think about the final ruling of the High Court in this case?

The High Court ruling in the Lindsay case took many in the legal and academic community by surprise.

It was thought by many that the applicability of the provocation defence to ‘gay panic’ cases had been settled at common law and that such provocative conduct could not be considered grave enough to mount a successful partial defence of provocation. The decision of the High Court found otherwise.

The High Court found that the trial judge was right to leave provocation to the jury and in disagreeing with the SA Court of Criminal Appeal found that it is open for a properly instructed jury to find that the provocative conduct amounted to such which would cause an ordinary person in the standpoint of the accused to lose their self-control and commit lethal violence.

While Lindsay was ultimately found guilty of murder on retrial the decision of the High Court does bring to the fore the need for legislative reform in South Australia to abolish the application of the provocation defence in cases where a person has killed in response to a non-violent sexual advance.

The Victorian Royal Commission into family violence report was tabled in parliament in March this year.

You’ve outlined that one of the most important developments to come out of the inquiry was the acknowledgement that family violence has a devastating effect on children.

Why do you think it’s taken so long for this acknowledgment to have been made?

The Royal Commission recognised that for a long time children have remained the ‘silent victims’ of family violence.

Children often find it difficult to have their stories of victimisation heard, understood and responded to.

The Royal Commission provides an important recognition of this and the need to ensure that children, both as direct and indirect victims of family violence, are better catered for in the integrated family violence system.

In Australia, one woman is killed each week, on average, as a result of family violence. Further, one in three Australian women over the age of 15 will experience violence at the hands of someone at home in their lifetime.

Why do you think such a situation is prevailing in this country? And what do you think are the necessary steps that need to be taken to rectify this situation?

Family violence has devastating consequences for the Australian community in terms of lives lost but also the range of health and wellbeing, psychological, physical and social impacts on a person’s life.

The past five years has seen an acknowledgement at the federal level that family violence is a ‘national emergency’ and a series of reviews undertaken at the state and federal level examining family violence, the adequacy of system and service responses, as well as the need for future reforms.

This undoubtedly positions Australia well to now move forward and introduce evidence based reforms to improve the integrated family violence system. After a series of reviews, now is undoubtedly the time for action.

And lastly, you’ve been lecturing in criminology since 2012. What led you into a career in this field?

I feel a bit like an accidental criminologist. I began my undergraduate university degree studying psychology and drama at Monash University and took criminology as an elective arts unit in my first year.

I absolutely loved it and found myself increasingly interested in my criminology units. I ended my undergraduate with a double major in psychology and criminology. I then went on to do my honours in criminology and then a PhD in criminology.

Following my PhD, I was keen to continue my research and an academic position provided the opportunity and support to do so.

Dr Fitz-Gibbon thank you very much for taking the time out to speak with us.