In December 2020, the South Australian Parliament passed legislation to abolish the common law defence of provocation and amend the law on self-defence.
Prior to amendments, the defence of provocation could be used to reduce a charge of murder to the lesser serious offence of manslaughter. As such, provocation is only a partial defence to murder. This defence requires proof that the accused was provoked by the conduct of the victim such that their mental state was affected in a way that they could not have had the required mental element for murder (that is either intention or recklessness as to killing or causing grievous bodily harm).
Historically, the defence of provocation has been considered in cases of family violence. The defence is also commonly referred to as the ‘gay panic defence’ when used as a defence where a man who has made a non-violent sexual advance is killed by another man. The defence has even been misused by men who kill their female partners claiming to have been provoked by their infidelity.
This archaic defence has been criticised for encouraging victim-blaming, being gender-biased and being at odds with community expectations of self-control. Having regard to these contentious circumstances, the defence of provocation has been abolished in South Australia and is no longer available against offences committed from the 1st of February 2021. However, it still remains operational against any offences allegedly committed prior to this date.
In addition to abolishing provocation, the legislation passed in December also amended the laws on self-defence to provide better protection to victims of family violence. As the name suggests, self-defence is applicable where the accused acted in order to defend themselves or another person. The defence is available to an accused person who can establish that they reasonably believed their conduct, which would otherwise be an offence, was in fact necessary to defend themselves or another person. The law requires the defensive conduct of the accused to be proportionate to the threat they believed they were faced with.
The amendments made in 2020 now allows the Court to consider circumstances of family violence when assessing the questions of reasonability, necessity and proportionality of the offending conduct. This essentially means that self-defence is applicable to acts committed in response to family violence or even threats of family violence. The amendments allow evidence of family violence to be admitted during the trial including expert evidence on family violence and its potential effects.
There has been considerable concern over the implications of the abolition of provocation, particularly with regard to situations where family violence exists. For instance, where a woman may be provoked by years of domestic violence and resort to killing her husband. However, it must be noted that in such circumstances the amendments made to self-defence provides sufficient protection for victims of family violence.