The Partial Defence of Provocation

30 August 2012

Dr Arlie Loughnan, Associate Professor Thomas Crofts and Graeme Coss have been invited to appear before the State Parliament's Select Committee on the Partial Defence of Provocation, chaired by the Reverend Fred Nile of the NSW upper house.

"Provocation is a controversial part of the criminal law in NSW and parliamentary debate on this important topic is significant for our community as a whole," said Dr Arlie Loughnan.

"Much ink has been spilt on the provocation defence- its analysis, critique and defence.

"We add to that pool because of our belief that a view that recognises the problems with the defence, but nonetheless sees a role for its retention (albeit in an amended form), is an important one to express."

Associate Professor Crofts said it is important to acknowledge the value of the provocation defence.

"This can be measured in terms of the importance of labelling in criminal law, the role of the jury in assessing questions of culpability, as well as consideration of the diversity of cases in which provocation may be raised, and the dynamism of the defence.

"We acknowledge the serious problems with the defence and thus advocate serious consideration of amendments to the current law.

"Such amendments could expressly exclude (a) words alone; (b) things done or said that constitute infidelity and (c) non-violent sexual advance as potential triggers for the 'loss of control' required by the defence.

"This would go a significant way towards retaining what is valuable about the defence, without its abolition."

Senior Lecturer, Graeme Coss said he waspleased to be invited to make a submission to the Provocation Inquiry, givenhis interest in the partial defence for the last 27 years.

"I have long advocated for abolition," he said.

"Most jurisdictions relevant to us have abolished the defence.

"We abolitionists note that it is an anachronism, born in age that accepted violence and punished with mandatory death.

"The defence privileges and partially condones intentional lethal angry violence, and thus is seen by most law reform bodies as not warranting the label manslaughter.

"Provocation is a defence only for murder, whereas it is merely a factor to be considered at sentencing for all other offences.

"We note that there is a significant difference already in moral culpability amongst murderers, and that is rightly recognised at sentencing.

"We argue that the foundation of the defence, loss of control, as well as the ordinary person test are based on fallacies and are conceptually flawed.

"We also note a plethora of case law revealing the defence's history of being notoriously gender biased, as well as being misused by men claiming to have retaliated to a non-violent homosexual advance.

"Lastly, we abolitionists caution against attempts to retain and limit its operation, given failed attempts to do just that in other jurisdictions."

"I have also submitted that special evidentiary provisions need to be introduced to strengthen the defence of self-defence for victims of domestic abuse.

"Those provisions will focus on the nature and dynamics of abuse, both in general and for the accused.

The Select Committee on the Partial Defence of Provocation is a current select committee of the Legislative Council and is due to report on 21 November 2012.

Associate Professor Crofts co-authored a relevantopinion piece in The Conversation with Professor Stephen Tomsen of UWS - Homicides, homosexual advances and male honour: will NSW act on provocation law?

Contact: Greg Sherington

Phone: +61 2 9351 0202

Email: 0227112b5b32270d5d010033253f2179443c2b1b0f525a532b3e4c1120