BILL: Modernising legal defences for homocide in family violence context

Mark today outlined the Greens support for the Government Bill to modernise the way the law deals with situations of homicide resulting from circumstances of family violence including the abolition of the partial defence of provocation . 


The Hon. M.C. PARNELL: As the lead speaker for the Greens on this bill I would like to begin by congratulating the Attorney-General for tackling the key issue that this bill tries to address, that is, to modernise the way the law deals with situations of homicide resulting from circumstances of family violence.

Members who were here prior to the last state election might recall my 2017 private member's bill, Criminal Law Consolidation (Defences—Domestic Abuse Context) Amendment Bill 2017, which addressed many of the same issues that this government bill is dealing with.  At the time of introduction in October 2017, the South Australian Law Reform Institute (SALRI) had released their stage 1 report, The Provoking Operation of Provocation, but they had not yet finalised the stage 2 report, which was released the following year in April 2018. The stage 1 report, while strongly recommending the abolition of the partial defence of provocation, also said that:

…it would be premature to make or consider any changes to the present law of provocation until its further review in the second stage has been concluded.

Due to that, my 2017 bill addressed other recommendations from the stage 1 report but refrained from tackling the issue of abolishing provocation.

After the stage 2 SALRI report was released, I announced my intention to introduce a new bill, similar to my 2017 bill but with the additional provisions to abolish provocation. I was then advised that the Attorney-General was planning to do the same, so we decided to wait and see. The Greens are pleased that this issue is now being addressed in this government bill.

While considering how to modernise the way our legal system deals with homicides in a family violence context, my office spent a year researching case law and how the laws in other jurisdictions operate. We looked at the law reform in other states that attempted to address these same issues and what the results were. We also conducted extensive consultation with all the key stakeholders and experts in this area of law, including a round table, which proved to be extremely useful.

The bill went through a few incarnations before we settled on a final version, and this was a reflection of the complexity of the issues it was dealing with. I will not repeat all the information contained in my long second reading speech in October 2017, as members can read it for themselves if they are interested. My 2017 bill may not have been the perfect solution to this difficult area of law reform but there was general agreement from the experts that we were heading down the right path and that it was important to kickstart the debate.

So the Greens are pleased the government has now taken the baton and is continuing to run with this important law reform.

Whether the government's proposed legislation is the perfect solution or not is yet to be seen and may not be known until the law is tested in the courts. Concerns had been raised that it might not result in fair outcomes for the victims of family violence who kill their abusers, given that we still have mandatory minimum sentencing for murder.

Ian Leader-Elliott, Emeritus Fellow at the University of Adelaide and Adjunct Professor at the University of South Australia School of Law, raised a number of concerns regarding the original draft bill which was significantly different to the bill we have before us. He also raised concerns with this bill which we passed on to the Attorney-General. As a result, the government has filed a new set of amendments (set 2) to address some of these concerns. The Greens will be supporting these amendments.

However, we still have some concerns in relation to sentencing. Importantly, there have been two South Australian cases in which women faced with appalling family violence from husbands were spared gaol time by compassionate sentencing for 'provocation manslaughter'. Mr Leader-Elliott explains that:

…[the] real problem here is the retention of the mandatory life penalty. A more sensible approach to these problems would be possible if life imprisonment was a maximum rather than mandatory penalty for murder.

In the written reply that I received from the Attorney-General's office, the response to this concern read:

Mr Leader-Elliott suggests that the Government should make it clear that the amendments do not preclude a very short sentence for murder, including a suspended sentence, where appalling family violence by the victim has led to a fatal response from the defendant.

As matters stand, a court is not able to impose any of the community based sentences contained in Part 4 of the Sentencing Act in respect of the offence of murder. To depart from this in respect of murder in circumstances of family violence would require legislative amendment and would represent a very significant change in long-standing policy. It could not be achieved by a statement in the Second Reading Speech as suggested. Accordingly, the Government will not be supporting change in this regard.

This is disappointing but it is not unexpected, given the government's support for minimum mandatory sentencing for murder, and I would add minimum mandatory sentencing for a whole range of criminal offences. But given the fact that, under this bill, no procedure will be available to enable the exercise of compassion in sentencing once the partial defence of provocation can no longer be used, the Greens would like to put on the record our concern that this legislation could end up having serious unintended consequences for these survivors of family violence.

In relation to the two South Australian cases I referred to earlier, Rajini Narayan received a head sentence of six years for 'provocation manslaughter' and Marion Taylor received five years. Both had their sentences suspended. If these women had been convicted of murder, a comparable non-parole period would be unprecedented in its lenience.

Even if this bill contemplated equally lenient non-parole period sentencing in severe cases of family violence, no provision has been made for the remission of imprisonment. Effectively, under this bill it appears that women who kill in these circumstances in future will be gaoled—which would be a substantial increase in their punishment.

On a more positive note, as I mentioned earlier the government has drafted amendments in response to another issue raised by Mr Leader-Elliott. He recommended:

Express provision should be made for the consideration of evidence of family violence in duress. Proposed s15B(2) on 'reasonable proportionality' has no explicit application here. Unlike self defence or defence of property, which require a 'reasonably proportionate' response, duress simply requires 'a reasonable response' to the threat. That's a different issue from reasonable proportionality and specific provision should be made for family evidence here. If self defence and the defence of property require a specific provision to activate these proposed evidentiary provisions when 'reasonable proportionality' is an issue, similar provision should be made when duress is raised and 'reasonable response' is an issue. (A court might take that approach to interpretation, but legislatures should not depend on courts to repair their oversights.)

I am pleased that in response the Attorney-General's office replied:

Mr Leader-Elliott suggests that express provision should be made for the consideration of evidence of family violence in the defence of duress. The government supports this and will be filing an amendment.

I am very glad to have helped achieve some reforms behind the scenes, as it were, so that we will not need to be doing anything on the floor.

In relation to the amendments to be moved by the Hon. Connie Bonaros to insert a review clause, the Greens will be supporting this sensible amendment. So, with the reservations that I have previously outlined about the consequences of how these provisions will intersect with minimum mandatory sentencing, overall the Greens will be supporting this bill.