Time to bring back the provocation defence?

by Hannah Norton01 Jul 2015
The ‘gay panic’ defence is once again on the radar in Australia after South Australian Michael John Lindsey’s successful High Court appeal earlier this month.

The defence, which has long been abolished in New South Wales but remains in South Australia and in Queensland, allowed Lindsey to argue that the victim he bashed to death in 2011 had caused him to lose control by making unwanted sexual advances.

In New Zealand, the defence of provocation was abolished in November 2009, following the case where Otago University tutor Clayton Weatherston stabbed his ex-girlfriend Sophie Elliott 216 times; claiming he was provoked.

The abolishment was at the time described by the late Sir Peter Williams QC as a knee-jerk reaction and "very dangerous".

And leading Auckland barrister and former Law Society president Gary Gotleib – and Sir Peter’s friend – agreed when he spoke with NZLawyer.

“I just think it was used so rarely, it was one of those things that you wondered what in fact was gained by getting rid of it, other than a political kneejerk.

“It was a case of everyone jumping up and down to Weatherston – and there was an element of cringe to that defence that was run.”

Utimately, Gotleib said, the jury had to uphold provocation as a defence.

“They didn’t in Weatherston, and they don’t normally.”

With regards to the ‘gay panic’ defence specifically, Gotleib thought it wouldn’t have got necessarily got through to the jury, particularly if elements such as premeditation were present.

“You’re still going to have to have a jury think about the test of whether that was a reasonable response to what occurred.”

He felt the most reasonable situation to use provocation as a defence was in the case of battered women and children.

“Suddenly they snap and say, grab a knife, and they kill them. It’s kind of a fine line between self-defence, which innovatively now people are having to use as a defence in situations like that.

“In the past you could have said there was provocation because of the previous history of, say, a woman having been beaten continually, and she would react more quickly because she knows that she’s going to get beaten again. She’s holding the knife, and she is defending herself – but in a self-defence situation you may need a little more.”