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1.0 Introduction: The Defence of Provocation; being the opportunity for someone accused of murder to get their charge reduced to merely manslaughter, is causing political and legal outrage in Queensland and greater Australia. Currently, almost all states have abolished this oldfashioned defence, with only SA, WA and QLD still utilising it. This defence is archaic and no longer reflects societal values. The defence of provocation no longer provides just and equitable outcomes for the victim and their family as it is an excuse for hot blooded murder. The legislation surrounding this defence must be completely removed and instead the sentencing for murder changed. Removing the minimum sentence of life to allow for judicial discretion and implication of common law, in relation to women who have killed their abusive partners (battered woman syndrome), will have a positive impact on the community and equally balance the needs of stakeholders. Within an incredibly diverse and complex legal system, just and equitable outcomes are becoming harder to achieve, with the defence of provocation playing a key role in this, by allowing the accused to walk free and families of victims left at a significant emotional disadvantage, lacking in closure.

2.0 Nature and Scope of the Issue: Arguably one of the most controversial defences in the Queensland criminal justice system, the defence of provocation has undergone many reforms over the past hundred years. Established in the 14th century, the defence was established to prevent defendants accused of hot-blooded killings bearing the death penalty. Yet since capital punishment has long been abolished, there is question as to its legitimacy. ABC News1 have highlighted the fact that there are various criminal lawyers who are of the opinion that the best way to tackle this problem would be to review the mandatory life sentence for murder. Skilfully manipulated by the media, the defence of provocation is constantly under scrutiny by the public eye. Often being described as being an excuse for callous killers and abusers. Thus, due to the controversy this defence is encapsulated in, criminal lawyers don’t believe change will occur; on the grounds that politicians would be required to make controversial decisions fraught with danger. This opinion is further supported by a statement politician Malcolm Kerr made in parliament, that the defence of provocation when implemented is “the way in which we have imposed and embedded our cultural understandings of responsibility and blame in the substantive law.”2 The implied defence of murder in the Australian judicial system is appalling and by eliminating this old-fashioned defence, society will be able to move on and question the integrity of other defences, such as the penalty on murder. Blackstone asserts that the fundamental difference between murder and manslaughter is ‘manslaughter arises from the sudden heat of the passions, and murder from the wickedness of the heart’3. Contradictory to this, in regard to the law of provocation, his Honour Chief Justice Gibbs stated that it’s crucial to any society which ‘values human life to insist that it’s 1 ABC

News (2011)

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HANSARD (2006)

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Sir William Blackstone (The University of Chicago Press, 4th ed, 1979) 190. Parker V the Queen (1962) 111 CLR 610, 651

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members maintain reasonable standards of self-control towards one another4. These statements are the foundation upon which the issues of this defence have. Due to the jury playing a major role in the judicial proceedings of this defence, it cannot be guaranteed that every trial will be fair and equitable. Attributable to the fact that the members of the jury are individuals, all containing a unique set of biases that could impact on their decision making. yet another reason why this defence is unwarranted and requires immediate reform.

3.0 Legislation: According to section 304 of the Criminal Code 1899 (Qld) 5, a defendant accused of murder where intent has been established, can use the defence of provocation to reduce their charge to manslaughter. Thus, evading the mandatory life sentence associated with murder. In order for the defence to be valid, three elements must be proved; provocative conduct, subjective element and objective element. 3.1 Amendment: In 2011, the law was amended to eliminate when the argument was based on “words alone, other than in circumstances of a most extreme and exceptional character” 6 . Meaning that murder is not justified if the offender is provoked by words alone, unless the jury or judge can determine that the accused is of exceptional character, this is an example of how common law is involved in the defence. QLRC reviewed the act due to the case of R v Sebo 78, in which Sebo bludgeoned a 15-year-old girl to death and then blamed his actions on the fact that her words provoked him, with the jury sentencing him to merely 8 years. Following this decision, the law was reformed, to prevent this miscarriage of justice from happening again. In which a cold-blooded murderer escaped without fair punishment.

4.0 Viewpoints of Stakeholders: 4.1 Family and friends of the victim (deceased): Queensland homicide victim’s support group are actively seeking to eradicate the defence of provocation98. A statement made by the organisation asserts that ‘It seems ludicrous that contemporary law should in fact reward people for losing their temper, as the provocation defence does.’ This quote is indicative of the overall perspective of the victim’s families, as long as this defence is standing, they will never be afforded closure. Yet another failure of justice. Furthermore, from the perspective of the victim’s support networks, the charge of murder compared to manslaughter is significant. With the case often turning to a trial of the victim’s guilt (of provoking the attack), as such, the concept of ‘victim blaming’ often gets discussed. The families of the murdered are left humiliated and at an even greater disadvantage, whilst the accused walk away with a lesser sentence, causing immense confusion within the community and anger and resentment towards the judicial process.

5QLRC,

2019 Criminal Code 1899 (QLD) 7 R v Sebo [2007] QCA 426 8 QHVSG (2019) 6

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4.2 The accused: Homicide is an area plagued by male offenders, with 88% of offenders identifying as such9 101 The defence of provocation playing a key role in ensuring not all of that statistic are charged with murder. The defence was established as an acknowledgment of human frailty, an out for those who killed in hot-blood, without self-control. Removing this defence would mean that for someone who truly was provoked, potentially to extreme measures over a prolonged period of time, a fair and equitable outcome would not be met. The accused would be sentenced with a minimum of life and treated the same as a cold-blooded killer. Furthermore, they would face the same stigma associated with murders. States that have reviewed this defence and removed this have accounted for this fact by also reviewing the mandatory life sentence for murder. Allowing for discretion in sentencing and being fairer overall, allowing for just outcomes for the accused. 4.3 The broader community: As Australia has evolved and the judicial system advanced, societies lenience towards violence has been flipped on its head. Killing in general has an extremely negative stigma associated and when the words ‘killed his wife’ are introduced, almost all members of the community are disgusted. Currently, the defence of provocation only has negative impacts on the community, with more often than not, violent killers being able to escape with only a manslaughter charge. By eliminating this defence, the community will benefit greatly, as the accused who react in excess to situations will be sentenced accordingly whilst women who act in self-defence will have this considered in their sentencing. Meaning the community is safer and will no longer have to endure the confusion associated with the accused’s guilt of murder due to whether or not they were provoked.

5.0 Legal alternatives to reform existing laws: 5.1 Sentencing for murder: Removing the minimum sentence of life imprisonment for murder will best suit the community as it allows for judges to determine what is best in the case, based off of common law and case law. Consequently, to pair with the removal of the defence of provocation, the penalties surrounding murder should be reformed. If the minimum of life in prison is removed and instead the judge is allowed judicial discretion, cases in-regard-to domestic violence, will be able to be punished less harshly and legitimate murder cases handled accordingly. This is the most equitable was of balancing individual needs and that of other stakeholders and the community. 5.2 Removal of the Defence of Provocation: Removing the defence of provocation and falling in line with almost all other states and territories will be extremely beneficial to the Queensland judicial system. A stakeholder this reform would have an impact on would be abused women who kill their abusers.

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Queensland Law Student Review (2008)

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Commonly referred to as battered woman syndrome, it’s a condition often attributed to women who have killed their abusive partners, relying on the defence of provocation in order to escape the charge of murder10.11Removing this defence will significantly impact on these women who truly were acting out of self-defence. Thus, balancing the needs of the community and individual is truly tested; these women acted out of self-defence and might not warrant being charged with murder, yet keeping the defence means other perpetrators are given an excuse for their lack of control. Whilst this is the case, measures have already been made to account for this; Criminal Code Act 1899 (Qld) s 304B(2) highlights this fact.

6.0 Recommendations for reform: The negatives of the Defence of Provocation are second to none, therefore the most reasonable solution is to abolish the defence altogether. Forgoing unnecessary strain on the legal system that would be caused by a more in-depth review of elements of the defence. This reform should occur simultaneously with the removal of the mandatory sentence for murder, allowing for judicial discretion. Thus, catering for abused women and other minorities who might be affected by this change. The current defence is delivering an unjust result, with there being a public outcry in the media for this defence to be removed. The QLRC must listen to the demand for change and act, following the recommendations highlighted in this report.

7.0 Conclusion: Originally intended to prevent someone who killed in hot-blood to be sentenced to death, the defence of provocation has failed to evolve and meet societies needs as they grew. In Australia, only three states have the defence still in legislation, whilst all others have moved away from this archaic defence, prompting the question of why Queensland has not done the same. It can be argued that this defence is about power and victim blaming, with the victim often being put on trial arguably instead of the accused. In the judicial system, a person should not have power over another, with this message further amplified by the media and public outcry. By removing the defence of provocation and changing the sentencing for murder, victims and their families will be provided closure, women who kill violent partners will be able to have their situation taken into their sentencing and the accused who act unacceptably will receive just punishment. The laws must change to reflect the needs of the community, continuously evolving and better serving the people.

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The Conversation (2012)

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Reference List: ABC News. Provocation Defence wound down in Queensland (2011). Retrieved from https://cabinet.qld.gov.au/documents/2009/Aug/Criminal%20Code%20Amendment%20Bill% 2009/Attachments/Final%20report.pdf Blackstone, Sir William. Commentaries on the Law of England. (The University of Chicago Press, 4th ed, 1979) HANSARD. CRIMES AMENDMENT(BAIL AND SENTENCING) BILL 2006 Consideration in Detail (2006). Retrieved from https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber% 2Fhansardr%2F2006-11-28%2F0093%22 Oxford Law Guidebook. Criminal Law Guidebook Queensland and Western Australia. (2015) Retrieved from http://lib.oup.com.au/he/Law/hemming/HEM_CLG_AssesPrep_Ch6.pdf Sebo V R [2007] QCA 426 Singh v R [2012] NSWSC 637 Sir William Blackstone. Commentaries on the Law of England. (The University of Chicago Press, 4th ed, 1979) The Conversation. Domestic violence: how the law treats women who kill a violent partner (2014). Retrieved from: https://theconversation.com/domestic-violence-how-the-law-treatswomen-who-kill-a-violent-partner-6983 The Sydney Morning Herald. time to act – provocation must be rejected as an excuse for murder (2013). Retrieved from https://www.smh.com.au/politics/federal/time-to-actprovocation-must-be-rejected-as-an-excuse-for-murder-20130219-2epdr.html

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