SA Bill to Abolish Defence of Provocation and Improve Family Violence Protections

Thursday 22 October 2020 @ 2.07 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

On 15 October 2020 the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Bill 2020 (the Bill) was introduced into the SA Legislative Council by the Minister for Human Services, the Honourable J M Lensink, MLC. The Bill proposes to amend the Bail Act 1985, the Criminal Law Consolidation Act 1935, the Evidence Act 1929 and the Sentencing Act 2017. This Bill proposes the implementation of the "preferred recommendations" in stage 1 and 2 reports of the South Australian Law Reform Institute (SALRI), entitled "The Provoking Operation of Provocation". The reports of the SALRI recommended the abolition of the common law defence of provocation, which if successfully raised, operates as a partial defence, reducing murder to manslaughter. The defence, according to the ministers second reading speech, has been criticised for being "complex, gender-biased and encouraging victim blaming".


The argument for abolition, presented in the second reading speech by the Minister, is that the defence of provocation, is "at odds with community expectations that, regardless of the degree of provocation, ordinary people should not resort to lethal violence." The defence of provocation has been particularly controversial when it has been used by someone who has committed violence on a member of the gay community, known as the "gay panic defence". Although, according to the Minister, the defence was rarely successful in this context of violence against gay people, this aspect of the defence's operation is "offensive and unacceptable". 

Another context in which the defence has apparently had some limited use is in cases of domestic violence, where women who are the victims of prolonged family violence have eventually retaliated against their abuser. In such cases, but for the defence, these women may be convicted of murder and face a mandatory sentence of life imprisonment, and a mandatory minimum non-parole period of 20 years.

As a result of the above and following the recommendations made by the SALRI in its reports, the Bill, according to the Minister, addresses the family violence issue by ensuring that evidence of family violence and the circumstances surrounding it can be taken into account both at trial, particularly in the context of defences of self-defence and duress where the dynamics of a domestic relationship may be especially relevant and in sentencing, including in relation to murder.

According to the second reading speech, the Bill "seeks to strike a balance between ensuring the changes to the law operate fairly and practically, and that they do so without unintended consequences". 

Specifics of the Bill and Proposed Changes

Clause 6 of the Bill abolishes the common law defences of "provocation, duress, necessity and marital coercion" by inserting a new section 14B into the Criminal Law Consolidation Act 1935. The concepts of "duress" and "necessity" are replaced by statutory provisions - necessity in clause 8 is now called "sudden or extraordinary emergency". These sit with the provisions regarding self-defence and defence of property in Part 3, Division 2, now renamed "Defences".

The new statutory defences proposed by the Bill, of duress and sudden or extraordinary emergency, reflect the common law but do not operate as defences in relation to murder or related offences such as attempted murder, conspiring or soliciting to commit murder, aiding or abetting murder, and such other offences as may be prescribed by regulation the future.

In clause 7 of the Bill section 15B of the Criminal Law Consolidation Act 1935 is amended. Currently that section provides that, while defensive action needs to be proportionate to the threat, this requirement does not necessarily mean that the force used by the defendant cannot exceed the force used against them. Clause 7 of the Bill adds to this by making the provision that, where the defensive action is taken in circumstances of family violence, the "question of proportionality is to be determined having regard to any evidence of family violence before the court".

The amendments ensure that the history and dynamics of the relationship between the accused and the alleged victim are placed before the jury and further, it makes clear that the Criminal Law Consolidation Act 1935 provisions are to be construed by reference to definitions of the terms "circumstances of family violence" and "evidence of family violence" inserted by the Bill into the Evidence Act 1929.

The Bill in clause 9 abolishes Part 9, Division 13 of the Criminal Law Consolidation Act 1935 including section 328A which contained a defence of "marital coercion" for certain offences committed by a wife in the presence of and under the coercion of her husband.

In clause 10, the Bill inserts a new Part 3 Division 4 into the Evidence Act 1929. The current Part 3 comprises three divisions dealing with rules of evidence in general cases, sexual cases and the admissibility of evidence showing discreditable conduct or disposition. The new Division 4 provides a guide to the courts in dealing with offences committed in circumstances of family violence. New concepts defined to assist courts trying and sentencing offences include, "circumstances of family violence", "abuse" and "member of a person's family". An inclusive definition of what amounts to evidence of family violence is also included.

Expert evidence relating to the nature and effect of family violence, called social framework evidence, can be admitted in prescribed proceedings to provide context to the experience of victims of family violence. For these purposes prescribed proceedings are those where a defendant asserts the offence occurred in circumstances of family violence and self-defence, duress or sudden or extraordinary emergency are raised by the defendant. A new section 34Y requires a judge to identify and explain the purposes for which evidence of family violence may or may not be used.

Further amendments to the Evidence Act 1929 are in clause 11 of the Bill, which in section 69A, allows a court to make a suppression order in relation to evidence given by or relating to a defendant where that evidence relates to family violence suffered by a defendant and is of a humiliating or degrading nature.

Section 48 of the Sentencing Act 2017 is amended in Clause 12 of the Bill with respect to mandatory minimum non-parole periods that can only be departed from where special reasons exist. Section 48(3) contains an exhaustive list of special reasons, the proposed amendments will allow a sentencing court to depart from the 20-year mandatory minimum non-parole period for murder or four-fifths of the head sentence for serious offences against the person in exceptional circumstances. Exceptional circumstances may include each of the three factors that currently constitute special reasons as well as an additional factor, namely, that the offence was committed in circumstances of family violence. 

The Bail Act 1985 is amended by clause 4 of the Bill to provide that there is a presumption against bail being granted to persons accused of murder and such persons will have to establish exceptional circumstances in order to justify a grant of bail.

Minister's Comments on Bill

The Minister indicated, in the second reading speech that the impact of the Bill would be positive, saying:

"Taken as a whole, the Bill will impact positively on the community by removing defences that are out of step with community expectations, in particular by abolishing the defences of provocation and marital coercion and by giving the courts greater flexibility to consider defensive actions taken in the context of family violence as mitigating circumstances in sentencing. It ensures that the issues of domestic violence can be properly ventilated in courts by creating special evidentiary provisions relating to evidence of family violence."

Further, the Bill, according to the Minister, "put the impact upon victims of domestic violence front and centre of criminal trials" and ensured that both the trier of fact and the sentencing court must have regard to such evidence".

The Bill has reached second reading stage in the SA Legislative Assembly which is next scheduled to sit on 10 November 2020.

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