Appendices Appendix A

Table A.1 Convictions for manslaughter by reason of provocation in Victoria (Australia), 1 January 2000 to 22 November 2005

Defendant Year Verdict/ Defendant Victim Relationship Provocation Name Plea Sex Sex between incident – victim and general defendant category

Tran 2005 Verdict Female Male Married Violent confrontation Straveski 2004 Plea Male Female Offender Violent killed confrontation daughter Ramage 2004 Verdict Male Female Estranged Non-violent marriage confrontation Nguyen 2003 Verdict Male Male Acquaintances Non-violent confrontation including threat of violence Hunter 2002 Verdict Male Female Married Violent confrontation PP 2002 Verdict Male Male None Violent confrontation Changan 2001 Verdict Male Male Offender Non-violent killed father confrontation Farfella 2001 Verdict Male Female Intimate Non-violent Partner confrontation Butay 2001 Verdict Male Female Married Non-violent confrontation Goodwin 2001 Plea Male Female Married Violent confrontation Turan 2000 Verdict Male Male Offender Non-violent killed son confrontation Teeken 2000 Verdict Male Male Victim was in Non-violent a relationship confrontation with the offender’s ex-wife Denney 2000 Verdict Female Male Married Violent confrontation Abebe 2000 Plea Male Male Victim was in Non-violent a relationship confrontation with the offender’s ex-wife

277 Appendix B

Table B.1 Summary of Recommendations for reform to the law of homicide made by the Victorian Law Reform Commission (2004)

Recommendation Broad area of Recommendations No. homicide law made

1 Provocation • Provocation should be abolished and where relevant taken into account at sentencing. 2–3 Self-defence, • Law of self-defence and other defences to Duress and homicide should be codified. Necessity 4–12 Self-defence • Reform of self-defence provisions, including that the use of force should be reasonable. • Adopt New South Wales, based on Model Criminal Code, provisions for self-defence. • Prosecution bears onus of proof. • Partial defence of excessive self-defence should be reintroduced in Victoria. • Office of Public Prosecutions should develop guidelines requiring documentation of all plea negotiations in homicide cases. 13–19 Duress and • Duress and Extraordinary Emergency should Extraordinary be available as defences to murder and Emergency manslaughter. • Prosecution bears onus of proof. • Accused has an evidential burden. 20–24 Intoxication • If an accused was intoxicated, if any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in determining whether that knowledge or belief existed. • If an accused was intoxicated at the time of the homicide and that intoxication was self-induced, a defence based on reasonable belief should be held to the standard of a reasonable person who is not intoxicated. • If an accused was intoxicated at time of homicide and that intoxication was not self-induced, a defence based on reasonable belief should be held to the standard of a reasonable person who is intoxicated. • Provides recommended definitions for intoxication and voluntary intoxication.

278 279

25 Evidence of • Introduce a provision to clarify that where Relationship self-defence or duress is raised and a history of and Family family violence has been alleged – evidence Violence on the following may be relevant: • History of the relationship, including violence. • The cumulative effects, including psychological effect, of that violence. • The social, cultural and economic factors that impact on that person. 26–33 Exceptions to • Introduce a provision to provide an exception the Hearsay to the hearsay rule to allow admission of Rule evidence of a previous representation made by a person who is not available to give evidence to be adduced by the accused. Specific provisions set out by VLRC. • Provisions for judicial warnings to the jury for hearsay evidence. 34 Expert Evidence • In murder or manslaughter cases where self-defence or duress is raised and the accused alleges a history of family violence, the court should recognise expert social context evidence may be relevant. 35–36 Professional • Bodies which offer professional development Development or judicial education should include sessions and Judicial on family violence. Education • Recommend specific issues about family violence that should be included in professional development sessions. 38–42 The Defence of • Mental impairment defence should be Mental retained – in trials where both the prosecution Impairment and defence agree that the person is not guilty by reason of mental impairment a jury trial should be avoided and a judge alone trial used. • Reform to include a provision that recognises that the term ‘mental impairment’ includes but is not limited to the common law notion of a ‘disease of the mind’. • Department of Human Services and Department of Justice should conduct ongoing evaluation of the effectiveness of the legislation. • Nominal term for mental impairment should be retained. • Professional Development sessions should include material on the operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. 43–44 ‘By Consent’ • Provisions by which a ‘by consent’ hearing Hearings can be conducted. 280

Table B.1 (Continued)

Recommendation Broad area of Recommendations No. homicide law made

45–46 Diminished • Diminished responsibility should not be Responsibility introduced in Victoria, mental disorder short of mental impairment should be taken into account at sentencing. • Defence of automatism should remain unchanged. 47–49 Infanticide • Infanticide should be retained as an offence and statutory alternative to murder and reforms be made to better take account of the complexities in these cases. • Infanticide should be reformed to extend the offence to cover an infant up to 2 years old. 50–56 Sentencing • In sentencing an offender for murder, where the accused might previously have been convicted of manslaughter by reason of provocation, a judge should consider the full range of sentencing options. • Court of Appeal should use an appropriate case to indicate principles that should be applied in sentencing an offender who has been subject to abuse. • Victorian Sentencing Advisory Council (SAC) should establish – in consultation with a members of the judiciary – a statistical database to monitor sentencing trends in homicide cases. • Judicial College of Victoria should offer judicial education on sentencing in homicide cases, in collaboration with Victorian SAC. • Victorian SAC should provide public education on sentencing in homicide cases.

Source: The information presented in this table is adapted from the overview of recommendations given in the Victorian Law Reform Commission’s (2004) ﬁnal report; see pages xlv–lvi. Appendix C

Table C.1 Convictions for manslaughter by reason of provocation in NSW (Australia), 1 January 2005 to 30 June 2013

Defendant Year Verdict/ Defendant Victim Relationship Provocative Name Plea Sex Sex between Incident – victim and general defendant category

Butler 2012 Plea Female Male Victim was a Non-violent prostitution confrontation client of the offender Won 2012 Verdict Male Male Victim was in Non-violent a sexual confrontation relationship with the offender’s estranged wife Singh 2012 Verdict Male Female Married Non-violent confrontation Goundar 2010 Verdict Male Male Victim was in Planned a sexual confrontation∗ relationship with the offender’s estranged wife Lynch 2010 Plea Male Male Acquaintances Violent confrontation Gabriel 2010 Verdict Male Female Married Violent confrontation Lovett 2009 Verdict Male Male Victim was in Non-violent a sexual confrontation relationship with the offender’s estranged wife Chant 2009 Plea Female Male Married Violent confrontation Stevens 2008 Plea Male Female De facto Non-violent Relationship confrontation

281 282

Table C.1 (Continued)

Defendant Year Verdict/ Defendant Victim Relationship Provocative Name Plea Sex Sex between Incident – victim and general defendant category

Mitchell 2008 Plea Male Male Acquaintances Violent confrontation Forrest 2008 Plea Male Male Acquaintances Violent confrontation Frost 2008 Plea Male Female Divorced Non-violent confrontation Berrier 2006 Verdict Male Male Acquaintances Violent confrontation Russell 2006 Plea Female Male De facto Violent relationship confrontation Bullock 2005 Verdict Male Male Acquaintances Violent confrontation Dunn 2005 Verdict Male Female Close Non-violent acquain- confrontation tances (lived together) Ali 2005 Verdict Male Male Former Violent acquain- confrontation tances Hamoui 2005 Verdict Male Female Estranged Non-violent girlfriend confrontation

∗ As discussed in Chapter 1, in the case of Goundar the defendant had planned for his wife to bring the victim, his best friend, to the marital home she shared with the defendant. The defendant was aware that the victim and his wife had been involved in a sexual relationship prior to this incident. The defendant was sentenced on the basis that he had become provoked upon realising that the victim intended to have sexual intercourse with his wife and that this realisation was further heightened by cultural factors (see Regina v Munesh Goundar [2010] NSWSC 1170, at 59). Appendix D

Table D.1 Convictions for the offence of defensive homicide in Victoria (Australia), 25 November 2005 to 30 September 2013

Defendant Year Verdict/ Defendant Victim Relationship Words or Name Plea Sex Sex between violence that victim and induced fear defendant

Smith 2008 Plea Male Male None Violence Edwards 2008 Plea Male Male Victim dating Verbal offender’s exchange ex-partner including threat of violence Giammona 2008 Plea Male Male Prison Violence inmates Smith 2008 Plea Male Male Friends Unclear Taiba 2008 Plea Male Male Acquaintances Neither Baxter 2009 Plea Male Male None Violence Tresize 2009 Plea Male Male Mutual Unclear friends Spark 2009 Plea Male Male Victim was Verbal offender’s exchange uncle Wilson 2009 Plea Male Male Acquaintances Violence Parr 2009 Verdict Male Male Acquaintances Unclear Doubleday/ 2009 Verdict Male Male Acquaintances Verbal Croxford exchange including threat of violence Evans 2009 Plea Male Male Acquaintances Violence Middendorp 2010 Verdict Male Female Intimate Violence relationship Black 2011 Plea Female Male De facto Verbal relationship exchange including threat of violence Creamer 2011 Verdict Female Male Married Unclear Ghazlan 2011 Plea Male Male Strangers Minor physical altercation Martin 2011 Plea Male Male Friends Violence (sexual assault)

283 284

Table D.1 (Continued)

Defendant Year Verdict/ Defendant Victim Relationship Words or Name Plea Sex Sex between violence that victim and induced fear defendant

Svetina 2011 Verdict Male Male Victim was Unclear the offender’s father Jewell 2011 Plea Male Male Acquaintances Violence Monks 2011 Plea Male Male Victim was Violence the offender’s uncle Edwards 2012 Plea Female Male Married Violence Talatonu 2012 Plea Male Male Acquaintances Violence Vazquez 2012 Plea Male Male Friends Verbal exchange McEwan, 2012 Verdict Male Male None Violence Robb & Dambitis Unknown 2013 Plea Male Male None Violence (youth offender) Chen 2013 Verdict Male Male Unknown Threat of prior to a case violence, sale by the including deceased to weapon the defendant Kassab & Anor 2013 Verdict Male Male Acquaintances Violence Appendix E

Table E.1 Sentences imposed for the offence of defensive homicide in Victoria (Australia), 25 November 2005 to 30 September 2013

Defendant Year Verdict/ Defendant Maximum Minimum Name Plea Sex/Victim sentence non-parole Sex imposed period

Smith 2008 Plea Male/Male 7 years 5 years Edwards 2008 Plea Male/Male 9 years, 6 months 7 years, 6 months Giammona 2008 Plea Male/Male 8 years 6 years Smith 2008 Plea Male/Male 7 years 4 years, 6 months Taiba 2008 Plea Male/Male 9 years 7 years Baxter 2009 Plea Male/Male 8 years, 6 months 5 years, 6 months Tresize 2009 Plea Male/Male 8 years 4 years Spark 2009 Plea Male/Male 7 years 4 years, 9 months Wilson 2009 Plea Male/Male 10 years 7 years Parr 2009 Verdict Male /Male 10 years 8 years Doubleday/ 2009 Verdict Male/Male 9 years 6 years Croxford Evans 2009 Plea Male/Male 10 years 7 years Middendorp 2010 Verdict Male/Female 12 years 8 years Black 2011 Plea Female/Male 9 years 6 years Creamer 2011 Verdict Female/Male 11 years 7 years Ghazlan 2011 Plea Male/Male 10 years, 6 7 years, 6 months months Martin 2011 Plea Male/Male 8 years 5 years Svetina 2011 Verdict Male/Male 11 years 7 years Jewell 2011 Plea Male/Male 8 years 5 years Monks 2011 Plea Male/Male 8 years 5 years Edwards 2012 Plea Female/Male 7 years 4 years, 9 months Talatonu 2012 Plea Male/Male 8 years 5 years, 3 months Vazquez 2012 Plea Male/Male 10 years 7 years McEwan, Robb 2012 Verdict Male/Male McEwan: 16 McEwan: 12 & Dambitis∗ years, 6 months. years, 6 months. Dambitis: 11 Dambitis: 5 years years, 6 months Unknown 2013 Plea Male/Male 3 years (youth (not available) (youth detention) offender) Chen 2013 Verdict Male/Male 8 years 5 years Kassab & 2013 Verdict Male/Male Both sentenced 8 Both sentenced 5 Moustafa years, 6 months years, 6 months

∗ In this case, only two of the three male defendants (Stephen McEwan and Normunds Dambitis) were convicted of the offence of defensive homicide.

285 Notes

Introduction: The Partial Defence of Provocation

1. Maher et al. (2005, p. 153) have argued that these actions in themselves, calculated and well thought through, ‘tend to belie the total loss of self- control’ required in the second limb of the partial defence of provocation. 2. There is the possibility that the jury in Ramage returned a verdict of manslaughter based on no intent; however, the case was sentenced as manslaughter by reason of provocation and has been dealt with since as an example of a provocation case. For the purpose of this research it is assumed that this was the basis of the jurors’ verdict. 3. The defence argued that Julie had provoked Ramage in two ways: first, by leading him to believe that there was a possibly that she would resume the marriage; and second, in their final argument, through her verbal taunts. 4. Ramage was sentenced to a maximum period of 11 years imprisonment with a non-parole period of eight years. Having served his non-parole period, Ramage was released in July 2011. 5. In the aftermath of Ramage, 2500 letters were written to the Victorian Attorney-General calling for a change in the law of provocation to prevent men like Ramage from being able to successfully access a partial defence to murder in the future. 6. See, for example, Law Commission (2003, 2005); Ministry of Justice (2008); SAC (2007, 2009); Victorian Law Reform Commission (2004). 7. The English interviews were primarily conducted within London; however, a smaller sample of interviews were also conducted in Liverpool, Manchester, Coventry, Leeds, Kingston upon Hull and Birmingham. 8. In Victoria, this was extended to include legal practitioners who had either participated in the role of judge, prosecutor or defence in a case involving a defendant who was convicted of the offence of defensive homicide. 9. The interview data was analysed using the qualitative data software Nvivo. To code the interview data, key themes were identified and considered for each individual respondent, for each professional role and for each jurisdic- tion. The interview data was then combined and considered comparatively across the three jurisdictions. This allowed the interview data to be analysed individually, collectively and comparatively. 10. The Victorian policy interviews included questions addressing respondents’ views on the need to abolish provocation in Victoria, the operation of homicide law prior to reform, the role of provocation in sentencing and initial perceptions of the workability of the offence of defensive homicide. In England, interviews with policy stakeholders focused on the signifi- cant differences between the Law Commission’s recommendations and the reforms implemented by the government, perceptions on the best approach to reforming provocation as well as policy stakeholders’ views on the law’s

286 Notes 287

operation prior to reform and the viability of the new partial defence of loss of control. In NSW, the interviews with policy stakeholders asked respondents to reflect on the key issues that emerged from the Parliamentary Inquiry into provocation and their view on the decision to retain rather than abolish provocation. 11. In Victoria and NSW these cases were first examined using publicly available sentencing judgments, and then in specific cases access to the trial transcript was requested from the sentencing judge, Victorian Office of Public Prose- cutions, NSW public defender’s office and/or NSW Office of the Director of Public Prosecutions. 12. According to Fairclough (2003) textual analysis is a key component of discourse analysis whereby different ideas, genres and concepts are mobilised within a text to create various viewpoints. The process of textual analysis involves judging a text to determine what the writer meant and what inten- tions were at play in producing the text’s narratives (Fairclough, 2003). In the first phase of the case analysis key themes were identified within the trial transcripts and sentencing judgments using a close reading of the text. The structure of the text was then analysed by questioning how the language was used to create different discourses and perspectives about a particular person, event and/or relationship.

1 Male Honour and the Provocation Defence

1. Mouzos and Thompson (2000, p. 1) deﬁne a gay-related homicide as ‘one where a victim may have been gay or perceived to be gay and the offender’s actions motivated to some signiﬁcant degree by prejudice or homophobia’. 2. See Mack (2013, pp. 169–70) for an analysis of the differences between the Australian ‘Homosexual Advance Defence’ and the American ‘Homosexual Panic Defence’. 3. See, for example, Anti-Discrimination Board of NSW, Ms Elizabeth Wong, Sub- mission No 6 to NSW Legislative Council, Select Committee on the partial defence of provocation, 31 July 2012; Mr Alastair Lawrie, Submission No 21 to NSW Leg- islative Council, Select Committee on the partial defence of provocation, 10 August 2012; NSW Gay and Lesbian Rights Lobby, Dr Justin Koonin, Submission No 22 to NSW Legislative Council, Select Committee on the partial defence of provocation, 10 August 2012. 4. See Blore (2012) for a detailed analysis of these two cases. 5. The law’s response to the lethal actions of James Ramage is analysed in detail in the Introduction to this book.

2 Jealous Men and Provocative Women

1. The 2004 Victorian trial and sentencing of James Ramage is analysed in the Introduction Chapter. 2. The 2012 New South Wales trial and sentencing of Chamanjot Singh is analysed in Chapter 7. 3. The English trial, sentencing and appeal of Leslie Humes are analysed in Chapter 6. 288 Notes

4. The Crown unsuccessfully appealed against the manifest inadequacy of the sentence imposed on Damien Sebo for manslaughter by reason of provocation, arguing that it ‘insufficiently reflected the gravity of the offence and the need for deterrence, while giving too much weight to mitigating factors’ (see Sebo, Holmes JA at [5]). 5. The Singh case is analysed in detail in Chapter 7. 6. This framework was first conceptualised by Cohen as a means through which denial mobilised by nation-states following the perpetration of war crimes could be better understood and explained. However, by applying Cohen’s theory to the realm of the criminal justice system, this analysis utilises the concept of denial and its varying states to illustrate the problematic effects of the use of the provocation defence in male-perpetrated intimate homicides.

3 The Plight of the Provoked Battered Woman

1. For further details on cases where provocation was successfully and unsuccessfully raised in England and Wales prior to the 2010 law reforms, see Appendix A of the Law Commission report, Partial Defences to Murder (2004). 2. The court did uphold Ahluwalia’s appeal on the grounds of diminished responsibility and a retrial was ordered. On retrial in September 1992, the Crown accepted a plea of manslaughter on the basis of diminished responsibility. For more details on the case, see Ahluwalia and Gupta (2007). 3. It is important to note that in sentencing Chant, the sentencing judge did note that he did not agree with the agreed facts given following the accepted plea to manslaughter by provocation, and that he felt that ‘the offender ha[d] consistently tried to minimise her responsibility for the killing’ (Chant, per Howie J, at 20). 4. In her article, Tolmie (2005) refers speciﬁcally to the use of the provocation defence in RvWang[1990] 2 NZLR 529 (CA).

4 Addressing the Provocation Problem

1. This table is accurate as of 1 March 2014. 2. Other reforms implemented through the 2008 Act in WA included the abolition of the offence of infanticide, the introduction of reforms to simplify and clarify the complete defence of self-defence as well as reforms to the defence of duress and the defence of extraordinary emergency (Williams, 2008). 3. For a discussion of this recommendation, and the broader recommendations of the QLRC’s (2008) review, see Douglas (2010); Hemming (2010); Yule (2009). 4. In the wake of the 2013 Bill and debate surrounding the ‘gay panic’ defence in SA several Australian academics provided Tammy Franks MLC with submis- sions advocating for the complete abolition of the defence (see, for example, Toole et al., 2013); however, as yet more far reaching reform to the law of provocation has not gained traction at a parliamentary level. 5. This table is accurate as of 1 March 2014. Notes 289

6. The 2001 NZLC report, Some Criminal Defences with Particular Reference to Battered Defendants, also recommended abolition of the mandatory life sentence for murder in favour of a discretionary approach to sentencing in murder cases.

5 Abolishing Provocation – The Victorian Experience

1. See Morgan (2012) for a critical analysis of how gender has been considered in Victorian reviews of the law of provocation from 1979 to 2004. 2. See Appendix B for a table summarising the recommendations made by the Victorian Law Reform Commission in the 2004 Final Report. 3. The introduction of the social framework and family violence evidence reforms occurred prior to Victoria’s adoption of the Uniform Evidence Act,and hence there have been evidentiary changes since that are beyond the remit of this discussion.

6 Replacing Provocation – The English Experience

1. See Law Commission (2004, pp. 1–2) for a discussion of the Terms of Reference for this review. 2. This figure is based on the three-tier structure for homicide as outlined by the Law Commission (2006, pp. 9–10) and by Horder (2007, p. 19). 3. See, for example, Fitz-Gibbon (2012); Hogg & Brown (1998); Pratt & Clark (2005); Mitchell & Roberts (2012). 4. As analysed in Chapter 3, for over two decades scholars have questioned the applicability of the provocation defence to this unique context of homicide and in doing so have highlighted both the current and historical inadequacy of the provocation defence to cater for female defendants who kill in response to prolonged family violence. See, for example, Tolmie (1990, 2005) and Horder (1992). 5. These cases are explored in Chapter 3. 6. The extent to which these reforms have been successful in improving the law’s response to battered women who kill is explored in detail in Chapter 9. Examples are the 2005 Victorian implementation of the offence of defensive homicide and the Queensland implementation of a partial defence of killing in an abusive domestic relationship. 7. The appeal against the inadequacy of the sentence imposed in Humes and Wilkinson was combined with an appeal against the sentence imposed in another case; Suratan. Suratan was convicted of involuntary manslaughter after the trial judge directed that there was insufficient evidence to prove the mens rea element of murder. See Burton (2003, p. 281) for a discussion of the case. 8. These concerns provide a platform from which Chapters 8 and 9 build on by examining the extent to which the 2009 Act, and specifically the implementation of the new partial defence of loss of control, has been able to minimise gender bias in the operation of the law of homicide in England and Wales. 290 Notes

7 Restricting Provocation – The New South Wales Experience

1. See Alexander (2012) for a discussion of this case. 2. It is perhaps unsurprising that male defendants during this period were more likely than their female counterparts to raise a partial defence of provocation given that the majority of homicides in NSW are committed by men upon men. However, while not surprising, this does highlight a clear dominance in the successful use of the defence by men in recent years. 3. During the same period there were 40 offenders who unsuccessfully raised a defence of provocation at trial and were subsequently convicted by the jury of murder; see Indyk et al. (2006, p. 36). 4. At trial, the forensic pathologist Dr Istvan Szentmariary gave evidence that on post mortem examination it was evident that the victim had ‘multiple sharp and blunt force injuries to different areas of the body’. This included a ‘large gaping incised neck wound which likely consisted of at least eight adjacent but separate sharp force injuries injuring the airways and major ves- sels causing bleeding’. The pathologist also noted several defensive injuries on the victim. See NSWSC Transcript of R v Chamanjot Singh, per Istvan Szentmariay, at 225–227. 5. Interestingly, at trial the defence successfully objected to the jury being told that the defendant had ﬂed to another state after the killing. 6. This evidence was described by the Crown Prosecutor, Mr Paul Leask, in his opening address to the jury; see Transcript of R v Chamanjot Singh, per Mr Leask, at 41. Jaspreet Kaur, the victim’s sister, also detailed past incidents of violence in her evidence at trial, see Transcript of R v Chamanjot Singh,per Jaspreet Kaur, at 91-92. 7. Details of the Ramage case are analysed in detailed in the Introduction. 8. This is a common criticism of the provocation defence. Scholars have argued that the words and actions of the victim are ‘put on trial’ with no real avenues for the prosecution to counter the version of events given by the accused. This issue is explored in more detail in Chapter 2. 9. For further examples of the media coverage surrounding the Singh case, see Bibby & Tovey (2012); Tovey (2012a, 2012b); Welch (2009). 10. In addition, to these options for reform, the Select Committee also raised the possibility of reversing the current onus of proof, so that the defendant as opposed to the Crown would be required to establish, on the balance of probabilities, ‘that they are not liable to conviction for murder based on the partial defence of provocation’ (Select Committee, 2012, p. 3). However, this was an additional component of reform that was ultimately not favoured by the Committee or by the majority of stakeholders who gave evidence to the Inquiry. 11. For example, see Australian Lawyers Alliance, Ms Emily Price, Submission No 48 to NSW Legislative Council, Select Committee on the Partial Defence of Provocation, 28 August 2012, 1; Homicide Victims Support Group (Australia) Inc, Ms Martha Jabour, Submission No 25 to NSW Legislative Council, Select Committee on the Partial Defence of Provocation, 13 August 2012, 1; Inner City Legal Centre, Mr Daniel Stubbs, Submission No 38 to NSW Legislative Council, Select Committee on the Partial Defence of Provocation, 24 August 2012, 1; Mr Graeme Coss, Submission No 12 to NSW Legislative Council, Notes 291

Select Committee on the Partial Defence of Provocation, 9 August 2012, 1; ODPP (NSW), Mr Lloyd Babb DPP, Submission No 34 to NSW Legislative Council, Select Committee on the Partial Defence of Provocation, 18 August 2012, 1; Phil Cleary Enterprises Pty Ltd, Mr Phil Cleary, Submission No 26 to NSW Legisla- tive Council, Select Committee on the Partial Defence of Provocation 13 August 2012, 1; Redfern Legal Centre, Ms Jacqui Swinburne, Submission No 42 to NSW Legislative Council, Select Committee on the Partial Defence of Provocation, 24 August 2012, 1. 12. For a detailed discussion of these three recommendations, see Select Com- mittee, Parliamentary Inquiry, pp. 191–209. 13. The non-exhaustive list of scenarios included the following contexts of violence:

The deceased indicates to the defendant they wish to end a relationship; The deceased discloses infidelity to the defendant; The deceased taunts the defendant about sexual inadequacy; The defendant discovers their partner or ex-partner in flagrante delicto and kills the person, or the third person; The defendant kills a third party who they know or believe has been having a relationship with their partner or ex-partner; The defendant kills a person with whom they are in conflict about parenting arrangements for children. (Select Committee, 2013, p. 203)

14. This is undoubtedly an important inclusion in light of the historical abuse of the provocation defence in ‘gay panic’ cases (as analysed in Chapter 1). 15. The intended and, perhaps more importantly, the unintended consequences of reform are analysed in detail in Part III of this book.

8 New Laws, Same Problems – Alternative Categories to Murder

1. For example, see Armstrong (2004); Graycar and Morgan (2005); Hunter (2006); Nourse (2000); Wells (2004). 2. The FVO was put in place on 20 December 2007 and required that Middendorp did not ‘assault, harass, threaten or intimidate Bownds’ (see Middendorp, per Byrne J, at 4). 3. At the time of her death Bownds was living in a house that had been arranged for Middendorp by the Salvation Army on the condition that Bownds did not also live there. 4. This article was based on the findings of research conducted by Flynn and Fitz-Gibbon (2011). See also Petrie (2012a) for a discussion of that research. 5. This article was based on the findings of research published in the Griffith Law Review; see Fitz-Gibbon (2013). 6. Complications resulting from the legislative reforms emerged as a key con- cern of English legal practitioners interviewed; these views are analysed in Chapter 10. 7. For a further discussion of the effect of the Court of Appeal’s decision in this case, see Quick and Wells (2012). 292 Notes

9 The Difﬁculty of Law Reform for Battered Women who Kill

1. In support of this, a recent analysis of male-perpetrated defensive homicide cases conducted by South Australian legal scholar Kellie Toole (2013b) found that the 2011 Monks case is the ‘sole illustration of the defensive homicide provisions applying as they were intended’ (see R v Monks [2011] VSC 626).

10 Complicating the Law of Homicide

1. Also of note is the signiﬁcant body of research that has critiqued complexities inherent in judicial directions given in sexual assault trials. See, for example, Flynn & Henry (2012); Neave (2012); Weinberg (2011). 2. In this case, Doubleday and his co-accused, Ronald Croxford, were involved in a ﬁght with another male, William Winter, outside a tavern following the bar’s closing time. Following the argument, both offenders ‘pursued’ their victim, who had a knife and a belt that he had used earlier as a weapon, and hit him with garden stakes (Croxford/Doubleday, per Coghlan J at 7). At sentencing, Justice Coghlan noted that it was ‘not clear at that time [of pursuit] what intent you had actually formed’ (Croxford/Doubleday, per Coghlan J at 7). 3. The trials of Chamanjot Singh (R v Singh [2012] NSWSC 637) and Joachim Won (RvWon[2012] NSWSC 855) are analysed in Chapter 7 and Chapter 1 respectively. 4. See, for example, Dawson (2004, 2005-2006); Rappaport (1996). 5. See Weinberg (2011, p. 1191) for a discussion of jury directions given in comparable international jurisdictions such as Scotland and the United States.

11 Questions of Sentencing in the Provocation Debate

1. The move to transfer consideration of provocation to sentencing in these Australian and international jurisdictions is analysed in Chapter 4. 2. The mandatory life sentence for murder was introduced in the English criminal justice system following the abolition of capital punishment in 1965. Under section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965, all offenders over the age of 21 years old at the time of conviction must be sentenced to life imprisonment. Where an offender is under 21 years old at the time of their conviction for murder, they must be sentenced to custody for life (under section 93 of the Powers of Criminal Courts (Sentencing) Act 2000). For further discussion of the mandatory life sentence for murder in England and Wales see Fitz-Gibbon (2013b); Mitchell & Roberts (2012). 3. This includes where the victim is a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker or other public official, exercising public or community functions, and the offence arose because of the victim’s occupation or voluntary work. 4. The one exception to this is that the standard non-parole periods do not apply to offenders who were under the age of 18 at the time that the offence was committed. Notes 293

5. For a further discussion of the operation of standard non-parole periods in NSW, see Indyk et al. (2010), NSWLRC (2012). 6. Given the importance of the judge or jury question to considerations of whether to relocate consideration of provocation to sentencing, it would appear critical that future research is conducted to improve current under- standings of the latter issue. 7. See R v Maddox [2009] VSC 447; R v Johnstone [2008] VSC 584, DPP v Tran [2006] VSC 394; DPP v Lam [2007] VSC 307. 8. Section 86E(2) of the Sentencing Act 2002 (NZ) provides provisions for stage-2 and stage-3 murder offences, which require that an offender is sentenced to life for the murder and that the offender serve that sentence without parole, unless the court is satisﬁed that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so. Bibliography

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Abebe 111 Mawgridge 25, 26 Ahluwalia 79–80, 139 Maglovski 38, 40–2 Azizi 258–9 Mankotia 218–19 Meerdink and Pearce 34 Babic 225–6 Middendorp 181–8, 191–2, 266 Black 201 Mills 49–50 Butay 110–12 Moffa 65 Butler 84, 151 Neacsu 259 Chant 84–7, 151–2 Chhay 78 Osland, Heather 122 Clinton 195–7, 266 Cranston 28–9 Peterson and Smith 34 Creamer 201 Croxford/Doubleday 229 Ramage 1–6, 49, 56, 108, 119, 121, 154 Dincer 37–8 Rognoui 218–19 Russell 84, 86–87, 151–2 Edwards 201–3 Sebo 49–52, 96 Green 31–3 Singh 9, 60, 152, 155–60, 162–3, 231, 245–6 Hamoui 68, 72, 152 Stevens 66–68, 152 Hill 80 Svetina 206–7 Holmes 46 Humes 142–3 Thornton 79, 139 Humphreys 79, 139 Tran 257

Johnstone 257 Vazquez 206

Kassab and Anor 206 Weatherston 102–3 Keogh 53–6 Wilkinson 143–5 Williams 68, 72 Lam 257 Won 27, 231, 245 Lees 152 Yasso 39–40 Maddox 257–8 Masciantonio 9 Zecevic 115

311 General Index

adultery see infidelity, crimes defensive homicide 122–5, 181–93, of passion 200–8, 222–6, 229 Australian Capital Territory 34, 95–6 Department of Justice (Victoria) Ashworth, Andrew 12 192–3, 206, 208, 224–5, 267–8 diminished responsibility, see Babb, Lloyd 162 substantial impairment Baird, Vera 197 domestic violence 84–8, 143–4, 149, battered women 74–88, 98, 105–6, 153, 155–6, 181–4, 186–8, 202–3 112, 122, 139–42, 165, 172, Douglas, Heather 75, 189, 201, 205 199–204, 208–12, 261–2 guilty plea 116–17, 202–3 Edwards, Susan 29, 79, 141–2, halfway defence(s)/offence(s)s 147, 149 82–3, 88, 123–124, 165, 203–4, 208–12 Ellis, Timothy 94 self-defence laws 83–88, 122–3, English case law 9, 25, 26, 28–9, 46, 141, 193, 203–4, 208–10, 221–6 79–80, 139, 195–7 Bernie, David 245 English reforms 11, 127–49, 226–8, Bradfield, Rebecca 44–5, 85, 87, 237–9 203, 254 evidence reforms 117, 124, 193, Burman, Monica 65, 186–7 208–9, 267–8, 271 excessive self-defence 115–16, Canada 105–6, 222 122–123, 132 Carline, Anna 25, 26–7, 29, 42, 133–4, 145 Fair labelling, see labelling Christie, Nil 68 Fairclough, Norman 18 Clark, Robert 192–3, 268–9, 271 family violence (killing in the context Cleary, Phil 51–2, 55, 191 of) 74–88, 112, 116, 139–42, Cohen, Stanley 63, 66, 87, 266 154, 192, 200–4, 261–2 complicated law 167, 213–34 Findlay, Mervyn 248 compromised justice 214, 228–32 first-degree murder, see three-tier Coss, Graeme 4, 117, 162 homicide law structure Cowdrey, Nicholas 172–3 Franks, Tammy 99 Crofts, Thomas 31, 137–8, 247, 250 Freiberg & Stewart, see Stewart & Crooks, Mary 188, 192 Freiberg provocation in crimes of passion 26–9, 43–52, 111, sentencing 142–5, 148, 152, 162, 197, 259–60 French reforms 103, 235 declining acceptance 69–72, 112, 146, See also infidelity, jealous man’s gay panic defence, see homosexual defence advance defence cumulative provocation 80–1 gender-based violence in sentencing Currie, Susan 74 246, 253–4

312 General Index 313 gender bias 5, 47–8, 60, 65, 77–8, 82, Kaspiew, Rae 199, 211, 92, 94, 101–2, 109, 120–1, 134, Khan, Trevor 174 179, 182–3, 246, 264–5 King, Justice Betty 258–9 Germany 103–4 Kirby, Justice Michael 32–3 Golder, Ben 30, 31 Kissane, Karen 2, 5, 56 Guardsman’s defence, see homosexual knee–jerk reform 121 advance defence see also law reform – political Graycar, Reg 74, 212 motivations Green, Betty 124 labelling 60–1, 83, 92, 130, 159, 163, Harman, Harriet 57, 145, 194 191, 194, 249–52 Hemming, Andrew 95, 236, 239 Law Commission (UK) 9, 127–33, High Court of Australia 32, 46, 65 137–9 homosexual advance defence 29–36, law reform 99–100, 153–4, 169, 265, political motivations 138–9 exclusionary law reform 33–4, 36, transformative potential of law 10, 99–100, 169, 179, 199, 270 Horder, Jeremy 7–8, 12, 77, 81, unintended consequences 125, 130–1 173–4, 179, 190–2, 206, 263–4 Howe, Adrian 4, 58, 191, 196–7, 205 violence against women 10, Hudson, Barbara 75–6, 81, 86, 199–200, 269, 270–1 200–1 Law Reform Commission of Canada 105–6 Hulls, Rob 49, 117–18, 122–3, 188, Law Reform Commission of Western 192, 255 Australia 94–5, 235, 256 Hunter, Rosemary 197, 267 Leader–Elliott, Ian 95 legal culture 269–70, 271 ideal victim 68 legal legitimisation of immediacy requirement, see sudden homophobia 30, 33, 35–6, 265 requirement male violence 205–8, 264–8 implementation problem 197–8 violence against women 43–4, 45, infidelity 25–9, 44–52, 104–5, 136, 48–9, 51, 52–3, 56, 61, 65–9, 142–8, 154, 156, 194, 195–7, 110–12, 145, 182–91 232, see also loss of control partial 265, 269 defence – sexual infidelity Loughnan, Arlie 247 exclusion loss of control partial defence intent to kill 250–2, 255 133–49, 193–7, 226–8 fear of serious violence 132, 135, Jackson, Judy 94, 251 139–142 jealous man’s defence 43–52, 136, sexual infidelity exclusion 136, 194, see also infidelity 142–8, 196–7 judicial education 118, 268–70, 271 qualifying trigger 135–6, 139–40 jury loss of control 8, 80–1, 132, 133–4, jury compromise, see compromised 140–1, 156, 167–8, 195, justice jury decision–making 27, 60, 70–2, Mack, David 35–6 122–3, 146, 166, 185, 213–34, Mackenzie, Geraldine 85–6, 98, 140 242–9 Mahoney, Martha 53–5, 58 jury directions 213–28 male honour 6, 25, 26–7, 29 314 General Index male-centric law 77–8, 134 Portsmouth defence, see homosexual Maher, JaneMaree 4, 6, 39–40 advance defence manslaughter 131, 232 professional development 268–70 McCarthy, Therese 253–4 provocation defence Ministry of Justice 18, 136, 228, 239 culture 8, 36–42 Mitchell, Barry 134, 141 foundations 7, 25 Model Criminal Code Officers requirements 7–8, 150–1 Committee 91–2 proportionality 7 Morgan, Jenny 45, 46, 65, 113–14, sudden requirement 79–81, 252–3 105, 135 words alone 64–5, 97, 112, Neave, Marcia 114–16, 213–4 152–3, 189 New South Wales Judicial provocation law reform Commission 153–4 abolition 6, 49, 108–22, 162–5 New South Wales Law Reform Australia 91–100 Commission 81, 247 exclusionary law reform 33–4, 36, New South Wales reforms 11, 33–4, 97, 145–6, 169–70, 197, 220 80–1, 150–75 international jurisdictions 100–6 New South Wales Select Committee, restriction reforms 95–100, 103–5, see Parliamentary Inquiry into 121–2, 265 Provocation (NSW) New South Wales Working Party 33, 154 Queensland law reform commission Northern Territory reforms 34, 95–6 34, 96–8 New Zealand 101–3, 215, 218–19, Queensland reforms 34–5, 49–52, 235, 260–2 95–8, 208 New Zealand Law Commission 9, Quick, Oliver 129, 140 101–2, 247, 249 Nile, Fred 158, 160–1 research design Nourse, Victoria 180, 263 case analysis 17–19 comparative legal analysis 11–13, O’Farrell, Barry 161–2, 171, 172 272 Odgers, Stephen 220 court observations 19 Onus of Proof 97, 219 interviews 13–17, 19 ordinary person 8–9, 37, 51, 132, 135–6, 158 Ormerod, David 133, 136, 147, Safety-net, see battered women – provocation as a halfway defence Paciocco, David 222, 229–30 Scotland 103–5, 233 Parliamentary Inquiry into second-degree murder, see three-tier Provocation (NSW) 33, 160–73, homicide law structure 219–20, 232, 240–1, 245–6 Searle, Adam 169 partial defence of extreme Select Committee, see Parliamentary provocation 171–2 Inquiry into Provocation (NSW) partial defence of gross provocation sentencing 167–9 presumptive life sentence 101, partial defence of killing for 103, 238, 260–2 preservation in an abusive provocation in sentencing 92, domestic relationship 97–8, 208 118–19, 235–62 General Index 315

mandatory life sentence 94–5, Tolmie, Julia 75, 80, 116, 203, 215, 96–7, 100–2, 106, 129, 130–2, 261, 263 236–9 Tomsen, Stephen 31, 36 minimum sentencing 106, 239–41 Toole, Kellie 99–100 123–4, 205, 206 sentencing guidelines 241 Tyson, Danielle 44, 56, 191, 252, standard non-parole periods 240–1 258–9, 266 see also gender-based violence in sentencing, Stewart & Freiberg United States of America reform 106 provocation in sentencing separation assault 52–6, 110–11, 154 victim blaming 35–6, 50–1, 56–65, sexual infidelity, see infidelity, loss of 73, 115, 158–9, 164, 179–80, control partial defence – sexual 182–8, 190–2, 264–8 infidelity exclusion victim denial 56–7, 63, 87, 164, Sheehy, Elizabeth 106, 203, 261, 263 182–8, 198, 265–6 silenced victims 2, 4, 58, 64–5, 160 victims on trial 4–5, 56–65, 230–2, social context 113–14 265 social framework evidence 124–5 Victorian Law Reform Commission South Australian reforms 34, 95, 57, 108, 113–22, 208–9, 222, 232, 99–100 235, 237 states of denial, see victim denial; Victorian reforms 11, 108–26, Cohen, Stanley 200–10, 221–6, 253, 254–5, 267–8 Stewart & Freiberg provocation in sentencing 117, 119, 235, 236, Western Australian reforms 254–7, 257–8, 270 94–5, 235 Stratham, Bronwyn 30 Westwood, Helen 159–60, 246 Stubbs, Julie 165, 203, 261, 263 Weinberg, Mark 123, 222, 223, 224, substantial impairment 153–4, 233 217–18, Wells, Celia 32, 129, 140, 265 women’s experiences in law 10, 58, Tadros, Victor 104–5, 232 74, 77, 87–8, 199–200, 204, Tasmanian reforms 93–4, 235, 237, 211–12, 270–1 251–2 Wood, James 241 techniques of neutralization 266 three-tier homicide law structure Yehia, Dina 219–20, 245 130–2, 137–8 Yeo, Stanley 37, 77, 80 Tierney, Jennifer 51–2 Yule, Jennifer 168, 215, 250