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March 24, 2014

The injustice of the provocation defence in NSW continues

scales of justice w. bookOn Friday, Yassir Ibrahim Mohamed Hassan was sentenced in the NSW Supreme Court to a maximum term of 12 years imprisonment, with a non-parole period of nine years, for the manslaughter of his wife, Mariam Henery Yousif. Hassan’s case is a stark reminder of the injustices caused by the partial defence of provocation, which continues to reduce what would otherwise be murder to manslaughter in New South Wales.

Hassan, aged 56 years old at the time of sentencing, killed his 24-year-old wife in a ‘frenzied’ knife attack that occurred on a background of over two years of disharmony in the marriage. While the specific cause of the marriage deterioration was not clear, on sentence the judge noted multiple contributing factors including their significant age difference, cultural differences and disagreements over parenting discipline style.

As is often the case in provocation cases, only the victim and the offender were privy to what occurred in the period immediately prior to the use of lethal violence. In sentencing Hassan, the judge described him as an ‘unimpressive witness’, noting that he had given several different versions of what occurred immediately prior to his wife’s death and that at times his version had been inconsistent with evidence taken from the scene. For this reason, and while the jury ultimately could not discount that Hassan acted in response to provocative conduct on the part of the victim, it is difficult to know exactly what occurred in the minutes immediately preceding the victim’s death.

In his attempt to shed light on what occurred in those moments, at sentencing Justice Garling accepted that the offender had stabbed his wife at least 14 times in a ‘brutal and vicious assault’ following a series of verbal arguments during which she questioned his masculinity. As described by the judge:

He said that his wife said to him words to the effect that he was not a man, the children were not his but were another man’s and he should take a look in the mirror, and further that these words were accompanied by swearing on her part.

It was this verbal confrontation that the jury accepted caused him to lose his self-control and form the intention to kill.

While the judge acknowledged that the degree of provocation offered by the victim was at the lower end of the scale, it is important to question why the criminal law in New South Wales continues to offer an avenue away from murder for controlling and jealous men like Yassir Hassan. It is incomprehensible why in the 21st century the law provides a defence through which a verbal slight to a man’s honour can be used as a partial justification for lethal violence.

In this respect it is not the numerical length of the sentence imposed in this case that is troubling but rather the inadequate labeling of the offence as manslaughter. By labeling Hassan’s lethal violence as less culpable than murder, a problematic message is sent to the community that his actions were partially excusable and partially understandable when considered in light of the victim’s behavior.

Dissatisfaction with the successful use of the provocation defence in cases like Hassan’s has been centrepoint in community, political and academic debates in New South Wales since the June 2012 Singh case. Chamanjot Singh was convicted of manslaughter by reason of provocation after he slit his wife throat with a box cutter but argued that he had been provoked to kill 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.

In the wake of the Singh case, a Parliamentary Inquiry was established to examine the unsatisfactory operation of the law of provocation and to make recommendations for its reform.

As a result of this Inquiry, and the Government’s subsequent formulation of a Draft Bill, earlier this month Reverend Fred Nile introduced the Crimes Amendment (Provocation) Bill 2014 into Parliament. The Bill, if passed, will abolish the current partial defence of provocation and replace it with a new partial defence of extreme provocation. While several of the traditional features of the defence are retained, the Bill does substantially restricts the applicability of the defence, which would only apply to cases where the provocative conduct on the part of the victim was a serious indictable offence.

If passed, the Bill will ensure that men like Hassan will no longer be able to use the law of provocation to avoid a conviction for murder. This is undoubtedly a step forward but there are also concerning aspects of the Government’s formulation of the partial defence of extreme provocation – the most pressing of which relates to the detrimental impact it will likely have on legal responses to women who kill in response to prolonged family violence.

The existing law must be changed. I would urge the NSW government to respond to the growing list of injustices by abolishing this partial defence, however, given their expressed opposition to abolition, as a compromise and a positive step forward I would encourage the introduction of reform that restricts the defence’s application significantly.

It is now over 18 months since Chamanjot Singh was the benefactor of a partial defence of provocation and it is nearly 10 years since James Ramage used the discredited law to avoid a conviction for murder in Victoria. While disheartening, it is not surprising that a man like Yassir Hassan has also evaded a conviction for murder by raising a defence of provocation – case law tells us that that is how the defence is routinely abused. In this respect, the growing case law also acts as a warning against delaying the implementation of reform any longer.

The NSW Government must act.

Access the complete sentencing judgment in R v Hassan [2014] NSWSC 280 here.  

Read an earlier post with my views on the partial defence of extreme provocation here.

Read my article on The Conversation advocating for the abolition of the partial defence of provocation in the wake of the trial and sentencing of Chamanjot Singh here


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