NSW Select Committee on the Partial Defence of Provocation Recommends Reforms

After a horrifying case in June 2012 where a suspicion of a wife's infidelity was touted as a mitigating factor for provoking her murder, a NSW Parliamentary Select Committee on the Partial Defence of Provocation has recommended new partial reforms to the defence.

The terms of reference for the report were that the Select Committee on the Partial Defence of Provocation inquire into and report on:

• the retention of the partial defence of provocation including:

• abolishing the defence, and

• amending the elements of the defence in light of proposals in other jurisdictions;

• the adequacy of the defence of self-defence for victims of prolonged domestic and sexual violence, and

• any other related matters.

As reported in an article in The Conversation, reforming the law of provocation in NSW was never going to be an easy task. It requires a delicate balance to be struck between protecting the interests of abused women who in exceptional cases rely on provocation where they are unable to raise a complete defence of self-defence whilst also protecting the law against jealous and controlling men who for decades have abused provocation as an avenue away from murder where they have killed in response to sexual infidelity or relationship separation.

The proposed “partial defence of gross provocation” recommended by the committee requires a defendant to have acted in response to “gross provocation” which caused them to have a “justifiable sense of being seriously wronged”. Within this, the focus of the restricted defence is on the nature of the provocative conduct as opposed to the defendant’s loss of self-control – an aspect of the defence that has been heavily critiqued in past reviews. Perhaps most importantly, the new restricted defence expressly excludes the partial defence being raised in circumstances where the defendant incited a response to provide an excuse to respond with violence or where the defendant was responding to a non-violent sexual advance by the victim.

However, where the committee’s recommendations expressly exclude scenarios like the gay panic described in the case of Malcolm Greene in 1997 from ever giving rise to a successful partial defence of “gross provocation”, their response to the profoundly troubling use of the defence in cases of male perpetrated intimate homicide is limited.

In this respect, the committee has recommended that the defence should not be available in a series of further circumstances – including cases where the provocation was based on anything done by the deceased to end the relationship or change the nature of the relationship including disclosing infidelity, taunts about sexual inadequacy or discovering a partner “in the act”. However, for these circumstances a provision has been included to disallow these scenarios except in some “extreme and exceptional circumstances”.

What this will mean in criminal law is yet to be seen.

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