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May 7, 2015

Dr Kate Fitz-Gibbon responds to High Court’s judgment in R v Lindsay

Yesterday the Australian High Court handed down their judgment in R v Lindsay, a South Australian homicide case that is set to reignite debate surrounding the application and injustice of the non-violent homosexual advance defence in South Australia.

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.

The High Court has quashed the original murder conviction and ordered a new trial.

South Australia is the last jurisdiction in Australia to retain common law provocation. In recognising the injustice that stems from the operation of this partial defence to murder, other Australian jurisdictions have abolished the defence (Tasmania, Victoria and Western Australia) or have introduced reform to restrict its application. Most recently, in 2014 the New South Wales government introduced a package of reforms to significantly restrict the application of a reformed partial defence of ‘extreme’ provocation.

In 2014 in response to debate surrounding a Bill put forward by Greens MP Tammy Franks MLC to limit the application of the provocation defence, the SA Legislative Review Committee undertook a review of the partial defence of provocation and recommendations for its reform. In December 2014 the Committee recommended that the proposed amendments in the Criminal Law Consolidation (Provocation) Amendment Bill 2013 not be introduced. In making this recommendation the Committee acknowledged that it had considered wider reform to abolish the law of provocation altogether, however, concluded that abolition would require a more thorough examination of the law of homicide and sentencing practices in South Australia.

In light of the judgment of the High Court in Lindsay, South Australia should undertake a further review of the law of provocation to bring the law into line with that of other Australian jurisdictions that have expressly excluded cases involving  a non-violent homosexual advance from raising a partial defence of provocation.

The judgment of the High Court cites Dr Fitz-Gibbon’s 2014 book, Homicide Law Reform, Gender and the Provocation Defence: A Comparative Perspective. 

Kate was interviewed on Radio National Drive on 7 May about the High Court’s decision and the role of the partial defence of provocation in South Australia. Click here to access that interview.

Access the full judgment of the High Court and the one page summary here.

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