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March 5, 2014

Kate Fitz-Gibbon responds to NSW provocation law reform

scales of justice & judicial hammerIn NSW Parliament today Fred Nile introduced the Crimes Amendment (Provocation) Bill 2014 [NSW]. While debate was adjourned, several parliamentary members have expressed their support for the Bill.

The Bill replaces the partial defence of provocation with a new ‘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 Bill was first proposed by the O’Farrell Government in October 2013, following the April 2013 release of the Final Report of the Select Committee of the NSW Parliamentary Inquiry into the partial defence of provocation and the Select Committee’s recommendation that the defence should be retained but amended under the new guise of ‘partial defence of gross provocation’. The reform introduced under the Bill differ from that recommended by the Select Committee.

Following its release in October 2013, the Government called for submissions on the proposed Bill. My submission argued that while the reforms have been drafted with the best intentions at play, including to ensure the justice system protects women who kill in response to family violence, the Government would be better placed to abolish this controversial defence in criminal law.

The reformed defence is likely to restrict the provocation defence to the point where it will not be available to women who kill in response to prolonged family violence and are unable to raise a complete defence of self-defence. For this reason the ‘extreme provocation’ defence is unlikely to protect the very category of defendant for whom the Select Committee recommended retaining provocation for. Consequently, and given that the reforms will largely render the law of provocation redundant, why not go one step further and remove the controversial partial defence altogether?

In arguing for abolition of the law of provocation, my submission recommended the following reforms to the criminal law in NSW:

  1. That the partial defence of provocation be abolished;
  2. That a clear framework be establishment for the consideration of provocation in sentencing, including provisions by way of guideline judgments, where appropriate, for culpability relating to lethal violence that is provoked to be considered as a mitigating factor at sentencing for murder, rather than as an alternative verdict;
  3. That any reform to the law of homicide should seek to simplify jury directions in homicide cases.

Disappointedly, the Consultation process initiated by the Government in late 2013 does not appear to have influenced drafting of the Bill introduced by Nile in NSW Parliament today. I  continue to urge the Government to reconsider its implementation.

Click here to read my November 2013 submission to the NSW Government.

In October 2013 when the Bill was first proposed, I wrote an opinion piece discussing the drafted reforms in the Sydney Morning Herald. Click here to read that article.


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