Provocation in New South Wales: The need for abolition

Abstract

Over the past two decades significant debate has emerged surrounding the operation of the partial defence of provocation. Such debates have led to its abolition in several Australian and international jurisdictions where Government and Law Commission bodies have argued that provocation has operated in a gender biased way that is no longer reflective of community values and expectations of justice. In contrast to the Australian states of Tasmania, Victoria and Western Australia, who have transferred consideration of provocation to sentencing, New South Wales (NSW) has retained provocation as a partial defence to murder. Drawing upon in-depth interviews conducted with legal stakeholders and an analysis of recent case law, this article considers whether the operation of provocation in NSW is still in the best interests of justice, and, specifically, whether in practice it privileges one gender above the other. This research concludes that the continued operation of provocation in NSW raises key issues surrounding the legitimisation of male violence against women, the denial and minimisation of the harm caused by lethal domestic violence, and the continued inability of the law to appropriately respond to women who kill in the context of prolonged family violence.

The Gay Panic Defense: Legal Defense Strategy or Reinforcement of Homophobia in Court?

“…§ 4, 2009; Roth & Blayden, 2012). In addition, several Australian jurisdictions (Victoria, Western Australia, and Tasmania) have followed suit or transferred the ability to make such arguments to the sentencing phase (Fitz-Gibbon, 2012). Nevertheless, there is currently no such legislation enacted within the United Kingdom or the vast majority of the United States.…”

Overcoming Barriers in the Criminal Justice System: Examining the Value and Challenges of Interviewing Legal Practitioners

“…As Richards (2011, p.68) describes criminological research has consequently tended to focus on 'the views of those controlled by the criminal justice system rather than those who control it'. This is not to say that criminology and legal scholarship has been entirely unable to engage legal practitioners in research interviews, this has been done to varying degrees over the past three decades (see, for example, Bartels, 2009;Erez & Rogers, 1999;Fionda, 1995;Fitz-Gibbon, 2012, 2013a, 2013b, 2014Flynn, 2012;Mackenzie, 2005;Mulcahy, 1994;Washington, 1998). The importance of this body of research as well as the difficulty of gaining access to participants is aptly captured by English Law Professor, Andrew Ashworth (1995, 263):…”

“…Allowing a respondent confidentiality and anonymity has benefits in terms of the individual's willingness to participate in the research and the freedom of discussion (Fitz-Gibbon, 2012, 2013bFitz-Gibbon & Pickering, 2012). As Fitz-Gibbon and Pickering (2012, 161) observe in their analysis of homicide law reform in Victoria by ensuring confidentiality to legal participants, the research 'accessed a broader and more senior sample of legal stakeholders who have traditionally not contributed publicly to discussions about law reform or the operation of the law in practice'.…”

Divergent directions in reforming legal responses to lethal violence

“…The Green case arose at a time when there was already concern about the killing of gay men or of men assumed to be gay allegedly in response to non-violent sexual advances (Tomsen, 2002). However, provocation has been retained in NSW, despite continuing calls for its reform and/or abolition (see further Fitz-Gibbon, 2012a).…”