In Parliament last week, NSW took steps towards better understanding, and potentially solving, the problems posed by the partial defence of provocation.
A defence predominately used by men, provocation is seen by many to represent an outdated and illogical excuse for murder. However, for others, it represents a halfway defence for battered women who are unable to raise the often restrictive complete defence of self-defence.
Over two days of public hearings, a Select Committee on the Partial Defence of Provocation sought opinions on the continued viability of provocation as a partial defence as well as possibilities for its reform. In examining these issues, the committee confronts a controversial area of the law that several other jurisdictions have sought to address in recent years.
In Victoria, Tasmania and Western Australia, provocation has been abolished. In Queensland, ACT and the Northern Territory a range of reforms have been introduced that restrict provocation to varying degrees.
Provocation for men
The NSW select committee was formed in June, following community outcry over the use of the provocation defence by Chamanjot Singh. Singh was able to successfully raise provocation after he slit his wife’s throat with a box cutter.
Singh argued that he had been 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. Manpreet’s sister, Jaspreet Kaur, continues to question the integrity of a defence that arguably saw her dead sister put on trial. On Wednesday, she commented to the committee:
He slit my sister’s throat eight times, you can’t say that is manslaughter … how come this case is a provocation case?
This week the committee pondered this question and in doing so, heard from a range of stakeholders, including academics, domestic violence practitioners, lawyers and two family members of homicide victims. Understandably among such a range of witnesses, the views presented to the committee were divided between reforming but restricting the defence and abolishing it altogether.
Cases such as Singh’s, and the well known provocation injustices in the cases of James Ramage and Peter Keogh, who both killed their partners and successfully used the provocation defence, were central to evidence given by witnesses who favoured abolition. Critiquing its use in this context, Graeme Coss from Sydney University described provocation as “an abomination of a defence”.
Witnesses argued that provocation would be better dealt with at sentencing for murder where the label imposed would recognise the intent of the killing. In the Victorian Ramage case, for example, many argued that a verdict of murder would have better reflected the level of violence inflicted by James Ramage on his estranged wife, Julie. Ramage bashed and strangled Julie to death in response to a discussion in which she admitted to being a new relationship and allegedly taunted his sex prowess. He was the last man to successfully raise provocation in Victoria.
In NSW, if abolished, witnesses posed that the extent to which the provocative conduct should be considered mitigating could then be addressed in the length of sentence imposed.
Provocation for women
The plight of women who kill in response to prolonged family violence was also a focus throughout the two days of public hearings.
Several defence practitioners, domestic violence practitioners and Professor Julie Stubbs from the University of NSW warned of any reform that could have negative consequences for this vulnerable category of offender.
Chrissa Loukas, the defence counsel for Singh, reminded the committee that “provocation is not a male defence or a female defence, but a human defence” and consequently urged them to take caution, as she argued abolition “will make the situation worse for [battered] women”.
This view supported previous evidence given by Stubbs who drew from her research in comparable jurisdictions, such as New Zealand, to highlight that where provocation has been abolished consequently battered women have been convicted of murder where unable to fit within the confines of self-defence.
The committee members themselves appeared to be considering a range of options, including an exclusionary model of reform, reversing the onus of proof and implementing a social evidence framework. In particular, to nearly every witness over the two days, the Honourable David Clarke questioned if provocation could be limited to provocative conduct arising from serious criminal or violent conduct.
It was posited that this would capture the case of the battered women who is unable to raise self-defence, while simultaneously excluding the jealous male who kills his partner. Could this be the way forward for provocation in NSW?
In light of the range of opinions, recommendations and cautions, two things are clear.
Solving the infamous provocation problem in NSW is a task not easily achieved. And regardless of whether the committee decides to abolish, retain or reform the provocation defence, change is most certainly needed.
John Coochey
Mr
I note the issue of Domestic Violence (please note capitalization) has raised its head because we get regular cases of women planning their partner's death up to an including building a sniper's nest and then claiming provocation because of prior conflict. Of course the deceased is not around to give his side of the story. Normally killing in self defense is not permitted if there is the opportunity to flee but in the case of DV this does not seem to apply in many cases.
David Glover
Communicator
John, I've never heard of such a case and couldn't find any on Google. Could you please give us examples?
John Coochey
Mr
As requested I suggest you check your search engine, this one took less than eight seconds
http://digitaljournal.com/article/292967
David Glover
Communicator
Thanks John, I was searching for the 'sniper's nest' you referred to.
I do think it's difficult to form a view on any of these cases when all we have to go on is the mass media's presentation of them. Partly because of limited space and time; partly because of their need to attract attention or push their own continuing agenda, I doubt we get even a glimpse of the specifics of the situation.
While it appalls me that someone can deliberately kill another person, I have to acknowledge that provocation is real. Personally I'm more willing to accept its legitimacy as a defence when it's substantive, like the continuing violence inflicted on the woman in the case you cited. "Provocation" that relies on hurting someone's feelings or upsetting their view of themselves don't seem sufficient to provoke physical harm of any sort, let alone killing someone.
John Coochey
Mr
The issue is what constitutes violence. I remember an argument I had with someone about the merits of two different breeds of working dogs. I commented unkindly that he seemed to have gone through rather a large number of his preferred breed. He explained, deadpan, that was because while he was away working as a Naval Officer his wife had killed his three dogs including a puppy. He was disbelieving when I told him that he was a victim of domestic violence. Can he now go and murder his ex and claim provocation by DV? The above example of a woman walling away after pre meditated murder is just one of numerous examples.
Jonathan Maddox
Software Engineer
I do believe that the proposal in the article's final paragraphs would cover such a case. Intimidation by killing treasured pets would certainly qualify as "provocative conduct arising from serious criminal or violent conduct".
Warwick Brown
Retired
The focus might be on men using this 'partial' defence, yet the major changes - in NSW at least - have been made because of its effect on women accused. When I hear about 'reversing the onus of proof' (which I feel should always be on the one claiming to be provoked) this would be, in NSW, a return to the position before 1979 when it was changed due to a women killing a husband. Prior to that case and the subsequent changes, an accused had to give evidence to prove that she or he was provoked, that it was immediate upon the provocation etc.
Because of the planning involved in the case it could not be reduced to manslaughter and a non-penalty for murder was imposed and a change in the law set in train. Ironically the very week in which that crime was committed, the murder which became the standard case on the then-provocation law was also committed (R-V Cedric Ashley Croft).
Michael Hay
retired
It is foolish to infer that there is no such thing as provocation in marriage (or any other relationship). Things go sour, other things are misunderstood and reacted against. The issue of provocation should be returned to the courts in cases of abuse, including violence, but NEVER IN CASES OF MURDER.
I have noted the emotional effect of provocation, where the wife taunts the husband over some action from years before and which should have been thoroughly forgotten. In some cases this has resulted in physical contact between the two. But NOT murder !! There are many men who have reacted to wifely provocation but who were nothing like James Ramage. All men should not be tarred with his brush, and neither should women.
Dianna Arthur
Dianna Arthur is a Friend of The Conversation.
Environmentalist
I don't agree with the use of "Provocation" as a defence for either sex.
That said, in times past when divorce was near impossible to obtain and there were few refuges for women, I can see how a woman might use murder as a last resort to escape an abusive husband. I was married to such a type of person, but I had support from friends and a place to go.
However, I cannot comment on any cases where "provocation" was deemed as a reasonable part of the defence - as I do not have the full details…
Read moreJohn Coochey
Mr
The example I gave is particularly relevant because if you examine the questions in the notorious ABS Women's Safety Survey 1995/6 you will see that harming or threatening a family pet is classed as domestic violence. I note in passing that the now ex wife is a serial AVO er taking out a string of AVO's against her ex only, largely to restrict access to their son, only to withdraw them as a challenge is about to reach court and then taking out another one on her way out. I would class such harassment misusing the law as domestic violence.
Jonathan Maddox
Software Engineer
Most people who ever have to take out an AVO become "serial AVO ers" of necessity. This is not a valid character assassination.
Craig Minns
Self-employed
I have had the ex try to take two DVOs against me, neither of which was successful(one I agredd to without admission because the court matter had been running for over 6 months and the police refused to allow it to be heard, adjourning each time it appeared for mention. It made no allegation of physical violence, but was in realtion to a mutual argument which she felt didn't go her way. Both were in the context of Family Law matters which she had initiated to try to get more residency of the children…
Read morePeter Hindrup
consultant
There seems to be widely held view that there cannot be a law to protect battered women, that cannot be available to males who slaughter their partners, ex partners, or perhaps their sisters, female cousins or even their brother’s wife, whether in a fit of (jealous) rage or in some idiotic concept of ‘family honour’.
While I have certainly read of ‘battered men’ from time to time over the years, there is to my knowledge no evidence indicating that this is either common or widespread.
Evidence…
Read moreJonathan Maddox
Software Engineer
It's like "stop the boats". Is the only way to convince people not to risk fleeing their lives from a bad situation, to give them a reasonable fear that if they do, the bad situation will hunt them down?
John Coochey
Mr
There are a large number of studies showing men are between a third and half of all victims of DV. ABS puts it at just under a third and the 1986 Office of the Status of Women campaign which claimed a third of women had experience of domestic violence was based on a US study by Straus Gelles and (Gloria) Steinmetz which indeed showed such a figure but in half the cases it was as perpetrator.
Peter Hindrup
consultant
Accepting your comment at face value, it still leaves the fact that a battered woman is vulnerable, likely to have kids in tow, adrift and defenseless.
Males, on the contrary, generally are not 'prey' of value, therefore unlikely to be molested, or I would have thought, 'hunted'. Then there is the fact that in my view there is something very wrong with a male who cannot look after himself!
Jonathan:
To equal the desolation and probability of death from which many refugees are typically fleeing you would have to shoot them as the entered Australian waters.
Imagine starting a journey where you had no destination, going into a situation where you knew that robbery, rape and murder were realities, that you could well be drowned, ad there was no certainty that you would not be sent back to your country of origin.
Do you really believe that people who are desperate enough to attempt that are going to be deterred by anything less threatening?
Jonathan Maddox
Software Engineer
Many refugees coming to Australia have been refouled, and some have lost their lives on being returned to their home countries. I have often wondered if this was part of the same deterrent strategy as detention camps and offshore processing.
Craig Minns
Self-employed
"Then there is the fact that in my view there is something very wrong with a male who cannot look after himself! "
Tell me, how does he "look after himself" if attacked by a drunken woman? Does he give back what he gets, or does he run away? It's a classic case of being "on a hiding to nothing".
I have one very good mate who is not a particularly large man. his wife and his eldest daughter are both larger than him and built nore heavily. In addition, the daughter is a multiple black-belt in…
Read morePeter Hindrup
consultant
What you suspect has nothing to do with anything.
Your 'Sadly, it's precisely that testosterone-fuelled reaction that has allowed such a serious debilitation of the consideration of the needs of vulnerable men in our community and such a gross over-emphasis on the "rights" of middle-class women to the detriment of all' opens the way to some interesting speculation though!
Attacked by a drunken woman? You 'leave'. Remove yourself from the situation.
'He has been beaten up by both of them…
Read moreCraig Minns
Self-employed
Peter, I reqalise you don't much like me or my views, but that doesn't change the fact that what I have related here is true and real. It may not accord with your prejudices, but that's your problem. I suspect lots of things in the real world don't accord with those prejudices of yours.
My friend has been threatened that if he leaves she'll "take him for everything" - she doesn't care who hears her say it and I've witnessed it myself. As they have 3 children together he knows this threat has real teeth, so he stays. He isn't allowed to have a card to access his bank account, he isn't allowed to have the keys to the family car, he can't even buy a beer to have with his mates. He lives downstairs, away from the rest of the family because she won't allow him to live upstairs.
I'm afraid your speculations are simply rubbish and I won't bother responding to that rubbish any further - it's quite smelly.
Dianna Arthur
Dianna Arthur is a Friend of The Conversation.
Environmentalist
When my dad got drunk, I avoided him.
When my ex husband was drunk, I tried to be very careful. Often didn't work and I would be knocked to the floor or thrown outside and locked out, raped or on a real spree all three.
As for your friend - why does he not go to a marriage counsellor? I think that would be of greater benefit than listening to someone who hates women the way you do.
Craig Minns
Self-employed
Thanks for your abuse, Dianna. I was only talking with a friend today about how refreshing it was to be able to discuss serious matters on another thread without the nitwits and nodding donkeys.
You've merely confirmed that impression.
Dianna Arthur
Dianna Arthur is a Friend of The Conversation.
Environmentalist
You are the one asking what one does with a drunken woman. I don''t know, I had a drunk father and a drunken abusive husband.
And you talk of abuse?
However, in answer to your question: You leave the situation.
Which is what I should have done. And will do so now.
Craig Minns
Self-employed
"You leave the situation."
If you're a woman who can go to divorce court and get given the family home and most of the assets then I suppose that's a reasonable thing to do. If you're a man who stands to lose all that, it's a bit more problematic.
Of course, I'm a "woman hater" for mentioning facts that don't suit you...
Peter Hindrup
consultant
Dianna:
Good luck! In my experience in a (relatively) short time you will wonder why the hell you didn't do it long ago!
Craig doesn't want a way out,he wants to somewhere to vent his spleen.
Other forums would label him a troll.
Craig Minns
Self-employed
Thanks for your contribution Peter. More chest-puffing and empty abuse and still not the slightest bit of compassion for my friend.
Well done.
Oh, and feel free not to respond to my comments, you never add anything of value. I urge you to encourage all the other nodding donkeys to do the same.