(Contribution to Debate, 14 May 2014, Legislative Assembly, NSW Parliament)
I support the Crimes Amendment (Provocation) Bill 2014, which will exclude the use of provocation as a partial defence in cases of so-called gay panic or when a spouse is killed in response to infidelity or a relationship breakdown.
The provocation defence can downgrade a conviction from murder to manslaughter if the accused can prove that the victim caused him or her to lose self-control and kill as a result of insulting words or conduct. Provocation is judged in terms of whether a reasonable or ordinary person would lose control in such a situation. Manslaughter can attract a smaller sentence than murder and the upper House inquiry by the Select Committee on the Partial Defence of Provocation was set up in response to the use of provocation in a number of cases, such as when husbands killed their wives because of a relationship split, criticism of their sexual abilities, or infidelity. In those cases, violent killings attracted sentences less than 10 years because manslaughter convictions were delivered instead of murder. The inquiry also examined how provocation can be used as a so-called gay panic defence because it is open to interpretation that persons can become panicked by a nonviolent sexual advance from a gay person to the extent of taking their lives.
The potential is real and highlighted in the 2008 case in which an intellectually disabled man was stabbed to death by a youth in a Narrabeen toilet block. The youth was convicted of manslaughter instead of murder by using the partial defence of excessive self-defence. It was argued that the victim made sexual advances that led to the accused being panicked. While the defence used in this case was not provocation, its application through use of being panicked in response to a nonviolent homosexual advance is similar to the application of the loss of self-control in provocation. Currently there is no guidance in criminal law that prevents the application of provocation to non-physical or romantic advances. The case I have just described demonstrates that there remains an acceptance that straight reasonable men can panic and react violently to nonviolent sexual advances from gay and bisexual men and transexual and intersex people. This treats the lives of gay men and gender and sex diverse victims as less than that of others. It treats male homosexual romantic advances as so offensive to justify murder while treating the equivalent heterosexual advances as merely unwanted and awkward. It is quite remarkable that in 2014 a law like that could still be applied. It is so important that this bill deals with this appropriately. This is discriminatory and condones homophobia at its most heinous levels.
I welcome the bill's specific exclusion of nonviolent sexual advance from the application of provocation, which will prevent its use in gay panic cases in future. Lesbian, gay, bisexual, transgender and intersex advocates have long been calling for this change. I acknowledge the work of the Gay and Lesbian Rights Lobby and the Inner City Legal Centre. It is vital that changes to provocation continue to allow for its use by victims of long-term domestic violence, who kill their attacker out of fear. I believe that by allowing provocation in cases in which the deceased's conduct was a serious indictable offence, which would include beating, stalking and intimidating, the bill protects its application by domestic violence victims. I ask the Attorney General to address the Bar Association's concerns that because the proposed extreme provocation defence requires the deceased to commit a serious indictable offence, situations in which the deceased tells the accused of having committed or intending to commit a serious indictable offence are excluded. The Bar Association recommends that the application of extreme provocation include the commission of a serious indictable offence or a representation that a serious indictable offence has been or was to be committed.
The bill prevents unfair application of the partial defence of provocation to cases in which the accused violently responds to a non-violent homosexual advance and to spouse killings, due to infidelity and relationship breakups. I commend the work of the Select Committee on the Partial Defence of Provocation on its inquiry that led to this bill. I particularly acknowledge the contribution of all its members, including Reverend the Hon. Fred Nile and the Hon. Trevor Khan. This bill shows what happens when members of political parties can work together. This is an important bill and I commend it to the House.
Mr GEOFF PROVEST (Tweed—Parliamentary Secretary) [10.33 a.m.]: It is with pleasure that I participate in debate on the Crimes Amendment (Provocation) Bill 2014, which represents the Government's response to the legislative recommendations made by the Legislative Council Select Committee on the Partial Defence of Provocation. There was extensive consultation with stakeholders during the select committee's inquiry. The inquiry received 52 written submissions and heard evidence from stakeholders. Contributors included the New South Wales Bar Association, the Law Society of New South Wales, the Women's Domestic Violence Court Advocacy Service, the Public Defender's Office, the Office of the Director of Public Prosecutions, Legal Aid NSW, Victims of Crime Assistance League, and several community legal centres. As a result this bill makes significant amendments to the law of provocation.
The rationale for the doctrine of provocation is that a person's moral culpability is reduced in a case in which he or she kills somebody in certain circumstances. As a result he or she can be convicted of manslaughter instead of murder. The doctrine of provocation has been controversial. A major criticism of the existing provision is its complexity. The complexity has been a key factor in the provisions controversy in the past. This bill aims to avoid that complexity. One of the main elements of this bill is the change to partial defence, in relation to which the select committee noted significant problems. In this bill partial defence is renamed partial defence of extreme provocation to reflect the committee's intention that partial defence be available only in the most extreme circumstances.
To establish extreme provocation, the bill sets out a four-stage test: Section 23 (2 (a) requires that the act causing death was in response to conduct towards or affecting the accused. Section 23 (2) (b) requires that the conduct relied upon must amount to a serious indictable offence This is in line with the expectation that people who are faced with offensive, insulting or offending conduct should not contemplate homicide or inflicting serious injury. This threshold also provides that leaving a relationship or infidelity will never provide a foundation for the partial defence. Section 23 (2) (c) requires that the conduct of the deceased caused the accused to lose self-control. Section 23 (2) (d) requires the jury to apply a purely objective test. It must consider whether the provocative conduct was so extreme that an ordinary person could have lost self-control to the extent of forming an intention to kill to inflict grievous bodily harm.
Other key changes to the current legislation include proposed section 23 (3) (b), which excludes the use of the defence in situations in which the accused has incited the provocative behaviour in order to use violence in response. Proposed section 23 (4) provides that the conduct of the deceased may constitute extreme provocation even if it did not occur immediately before the act causing death. Proposed section 23 (5) will ensure that a jury no longer may take into account self-induced intoxication. I note that the Government has agreed in principle that the law of homicide, including the law of provocation, should be reviewed comprehensively by the New South Wales Law Reform Commission in five years time. I take this opportunity to again thank all the people who have contributed their time, skills and effort to such an important and complex bill. Overall, this bill reflects the views of the wider community. Our community expects politicians to introduce what I perceive to be common sense legislation that upholds current community views. I commend the bill to the House.