The report has been produced by the Select Committee on the Partial Defence of Provocation, which was established in June 2012 following the high profile Singh case. The motion establishing the Committee received support from across the political spectrum, demonstrating the significance and urgency with which the issue was viewed.
In Singh, Mr Singh stood trial for murder after cutting his wife’s throat several times with a box-cutter. Mr Singh claimed that his wife, Manpreet Kaur, provoked him by telling him she had never loved him, was in love with someone else and threatened to have him deported and, that as a result, he lost his self-control and killed her. Mr Singh was convicted of manslaughter based on the partial defence of provocation and sentenced to a non-parole term of imprisonment of six years. The community outrage at the killing being described as ‘manslaughter’ not ‘murder’, and the sentence length is certainly understandable. It is difficult to comprehend how a man who kills his wife in such circumstances could be entitled to even a partial defence to murder.
A series of arguments for abolishing the partial defence were presented. In particular, the Committee heard that the defence has tended to favour men and the archetypal male response to ‘provocative’ circumstances. It was also argued that the defence’s historical roots no longer justify retaining it, as NSW no longer has the death penalty or mandatory sentencing provisions for murder. Perhaps the most persuasive argument is that in today’s modern society, we expect that citizens will maintain their self-control, even in circumstances that might be ‘provocative’. It is unacceptable that the law offers a partial defence to people who kill in response to ‘provocative’ circumstances which are, in fact, a normal part of human experience, such as being told a relationship is going to end, discovering infidelity, or feeling jealous or betrayed.
However, the Committee was unable to reach a consensus on whether the partial defence of provocation should be abolished. The Committee ha s been mindful that there are some defendants, particularly women who have been victims of long -term domestic abuse, for whom the partial defence of provocation may appropriately reflect their legal and moral responsibility in circumstances where self-defence would be difficult to establish.
The Committee has therefore developed a reform model, which draws on extensive consultation undertaken by the Committee throughout the Inquiry. The model seeks to restrict the availability of the partial defence in several ways, including by requiring that the conduct relied upon be ‘grossly provocative’, and by clearly identifying a number of circumstances in which the defence will not be available, or will only be available in extreme and unusual circumstances. An example of the latter includes where the deceased indicates an intention to end the relationship.