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JENNY BROCKIE: Hi, I'm Jenny Brockie, welcome everybody, good to have you us. Jaspreet, I wanted to start with you, your sister Manpreet was killed by her husband three years ago. Tell us what happened?



JASPREET KAUR: He always had suspicious on my sister.



JENNY BROCKIE: He was suspicious of her?



JASPREET KAUR: Yeah. Like sometimes she was getting late by five minutes or ten minutes by her colleagues and he always think why you getting late and what happened?



JENNY BROCKIE: So tell us what happened on the night that she died?



JASPREET KAUR: On the night she'd died she called me around 10 to 15,10 to 15 pm, and she straight away start crying and then she said I was just working, and then she said when I came back and he start fighting straight away and he said: "Oh, you are not at work and I don't believe on you." And on that day he withdrew $1,500 from my sister's account, same day, and my sister knew about that and she asked him why you withdrew this much money to my account? And he didn't give any answer, he said it's my money but my sister said it's my money because she was working - he was not working at that time.

And my sister said I just kept this money for paying my college fees, and then on that matter she said we had a lot of fight. Then I straight away suggest to my sister don't bother anything, just come to my house. Then she said it's too late at the moment, I can't come to your house.



JENNY BROCKIE: So what happened then that night?



JASPREET KAUR: Then after that, at 11.55 pm they said, they had again lot of fight. Her husband locked the door inside and switched off the light and they just go to their bed for a sleep and they again start fighting on these matters. Then I got call from my father from back home in India and he said your sister died. You need to go there and see what happened.



JENNY BROCKIE: And what had her husband done to her?



JASPREET KAUR: She - he cut her throat eight times and she had more than 22 cuts on her whole body. As for doctor witness, doctor said my sister was doing self-defence, she was trying to save her. She was trying to open the door to get out from that room but she can't. She just - he hold her and he cut her throat eight times and after that she died.



JENNY BROCKIE: Now her husband alleged that he was provoked by your sister. What did he allege that she had said to him before he killed her?



JASPREET KAUR: He said in the Court, he said my sister said to her - him, she don't love him, she love someone else and after that he said I lose my self-control and I don't know what happened after that. I had a box cutter knife on the table, I just knew, I took that knife. After that I don't know what happened, I lose my self-control.



JENNY BROCKIE: Now what was he charged with. What was Chamanjot charged with?



JASPREET KAUR: Manslaughter. He charged with manslaughter and just he sentenced to only six years. So three years only has been already passed and just three years left.



JENNY BROCKIE: Was her husband initially charged with murder?



JASPREET KAUR: Yes.



JENNY BROCKIE: And how was that charge changed?



JASPREET KAUR: In the Local Court the lawyers said it's manslaughter but the Judge straight away say, he refused. He said it's not look like manslaughter, it's a murder. So but when the case came to the Supreme Court and he said in the Court: "I lose my self-control because my wife provoked me", then straight away the whole matter changed, the jury came with the verdict of manslaughter. So if he was saying I was provoked, you should prove everything in the Court.



JENNY BROCKIE: That was based on defence of provocation?



JASPREET KAUR: Yes.



JENNY BROCKIE: That he had been provoked by what she said about loving someone else?



JASPREET KAUR: According to his statement.



JENNY BROCKIE: According to his statement. And he also said she would have him deported back to India?



JASPREET KAUR: Yes.



JENNY BROCKIE: How was she supposed to be able to do that?



JASPREET KAUR: She didn't say anything that she would deport him back home to India. It's not possible to deport someone like this. If both persons are alive, then you can judge what other person is saying, what other person is saying but if one person is not alive, then you just believe only one statement and you can say it's a provocation.



JENNY BROCKIE: How do you feel about that sentence he received of six years for killing your sister?



JASPREET KAUR: I can't say, I don't have any words to say what, how can I feel? I feel very, very bad. That's why I'm here, I want to speak, it's not good. He can meet his family after three years, he will be able to go back and he can survive his life as he lived before. But we can't see her any more, never, ever. This is not a way to just punish six years, no. I can't say.



JENNY BROCKIE: Mark Ierace, you're the senior public defender in New South Wales, now this case helped to spark a review of the provocation defence in New South Wales. I know you don't want to talk about the case specifically but can you explain to us how provocation works as a defence and when it can be applied?



MARK IERACE, SC SENIOR PUBLIC DEFENDER, NSW: Sure. Provocation applies where the accused kills the deceased as a result of a loss of self-control, which in turn is caused by the deceased's behaviour. It also can only apply where the jury are of the view that an ordinary person, in the position of the accused, could have formed an intent to kill or cause serious, really serious bodily harm as a result of the provocation by the deceased, so it's for the prosecution to overcome such evidence and if….



JENNY BROCKIE: So the onus of proof is on the prosecution in a sense to disprove provocation, is that how it works?



MARK IERACE: As it is, in the case of murder, and indeed in virtually all criminal cases.



JENNY BROCKIE: Okay, now you used a couple of terms there, "a loss of control", and you also used the term "an ordinary person"



MARK IERACE: Yes.



JENNY BROCKIE: I mean these things are very open to interpretation, aren't they?



MARK IERACE: Yes, they're open to interpretation, although the jury does have the benefit of an explanation by the Judge, but also I think it's fair to say it's a very technical and complicated piece of legislation that the jury have to deal with.



JENNY BROCKIE: Okay, Phil?



PHIL CLEARY: What you've got in the Singh case is a Judge and a courtroom allowing a form of provocation built around the pillorying of a woman. The woman's character is destroyed. If you ignore that as if it's some clinical process and it's just a matter of complexity for the jury, you miss what is wrong with provocation as a misogynist narrative.



JENNY BROCKIE: But Phil, is there not - are there not situations where a provocation defence is appropriate?



PHIL CLEARY: I have no problem with a provocation concept but if you're going to argue that provocation is based on a woman allegedly having an affair, allegedly going to leave a relationship, if you're going to argue those things, women are dead women walking.



JENNY BROCKIE: Okay, Rob Starry, you're a defence lawyer, what do you say to that? I mean does the law discriminate in that way?



ROB STARY, CRIMINAL DEFENCE LAWYER: It's not the case in Victoria. In Victoria loss of self-control, a jealous rage, would not invoke any sort of defence.



JENNY BROCKIE: What does being provoked mean though? And responding in that way means killing someone - I mean…



MARK IERACE: As a result and only as a result of a loss of self-control and that's important.



PHIL CLEARY: Jenny, it is the Judge who makes the decision on whether the provocation goes to the jury. Imagine the twelve members of the jury who are told by the Judge they must consider provocation?



MARK IERACE: Phil, that's only there if the evidence supports it. It can't be unilaterally decided by the Judge, it must be supported by evidence.



PHIL CLEARY: Fine and you know what I want? I want the - I want the human rights lawyers like Rob Stary to tell me that Manpreet Cur's human rights were not violated. Any of the defence lawyers in the room, tell me that the human rights, her human rights weren't violated. Tell me my sister's human rights weren't violated. Tell me about all the other women.



ROB STARY: But Phil…



PHIL CLEARY: Rob, you tell me, were those human rights violated?



ROB STARY: Of course there was and there was a punishment process that followed and that was determined by the Judge. So….



PHIL CLEARY: Not guilty to murder?



ROB STARY: The commission of a crime, a serious crime, invokes criminal sanction and the person received a term of imprisonment. Now…



JENNY BROCKIE: I guess, hang on, hang on a minute, I guess what I'm interested in though is, you know, does this law imply that it's acceptable to murder in some circumstances?



ROB STARY: Well from my personal perspective, it's not satisfactory as a consequence of words being uttered to someone. I don't accept provocation personally.



JENNY BROCKIE: Okay, was that the only evidence that was given in your sister's case, that she'd said these things?



JASPREET KAUR: Yes.



JENNY BROCKIE: I mean was there any evidence she'd been violent to him or that she'd attacked him?



JASPREET KAUR: No, there, there were not proofs, nothing, no. They didn't find anything what she exactly said. But they just believe only, only his statement. So it is very easy for accused to say I lose my self-control. That's the main, I think in their hands to say. I lose my self-control so they know if I say these words in the courtroom, probably I will just get only four or five years and then that's it.



JENNY BROCKIE: Yes, Mark, I mean that's what I'm a trying to get to the bottom of here, you know, what is acceptable as a provocation defence.



MARK IERACE: Well I think there are some cases that have occurred where the Judge has gone to the extraordinary length of handing down a sentence of a good behaviour bond and where there has been no community outcry at that. In other words, there would seem to be circumstances where provocation is appropriate. But we've got to be careful in responding to what we see as injustices - that we don't effectively throw out the baby with the bath water.



PHIL CLEARY: So we should not be passionate about an injustice, is that what we're saying? We should not be passionate about an injustice? Our society is built on being passionate about injustice - our society is built on human rights



JENNY BROCKIE: But I think the point that Mark's making is that there are some circumstances where he believes, and it should be applied? And you yourself said before Phil that you thought there were some circumstances?



PHIL CLEARY: Yes, I do Jenny.



ROB STARY: And Jenny, I think it should be steadily borne in mind that with a conviction for manslaughter, there's the capacity to impose a sentence of 20 years imprisonment. There's the capacity for the Director of Public Prosecutions to appeal the inadequacy of any sentence. So there are safety nets that are in place.



PHIL CLEARY: But they don't Jenny, they don't historically, that is part of the problem, because we don't treat wife killing like it's a serious matter as other forms of killing.



JENNY BROCKIE: Okay.



JASPREET KAUR: In your law it's written the maximum sentence for manslaughter is 25 years but I never heard nobody got more than six or seven years. So what it's written 25 years?



JENNY BROCKIE: Julie Stubbs in Melbourne, you've studied the provocation defence, where can it be used as a defence for killing in Australia?



PROFESSOR JULIE STUBBS, CRIMINOLOGIST, NSW: Different states have taken different routes. It's been abolished in Victoria, Tasmania and Western Australia. Other states retain it. So it's possible to use it for instance in New South Wales and Queensland, the ACT and Northern Territory.



JENNY BROCKIE: And it's a partial, it's what's known as a partial defence. What does that mean?



PROFESSOR JULIE STUBBS: It means that if it's successful it reduces the matter from murder to manslaughter so there's still a conviction and still a penalty. It's not a full defence which self-defence is. If somebody who is found to have a self-defence will actually be acquitted.



JENNY BROCKIE: What are the things that people most commonly cite successfully as provocation when they use it as a defence?



PROFESSOR JULIE STUBBS: That's a difficult one to argue. The data is not very clear on that. The ones that are most controversial are the ones like the battered woman scenario or where men have argued provocation in a non violence sexual advance context, sometimes misknown as homosexual panic advance. What's most successful? Hard to know but the number of cases in which provocation is successful are more likely to be cases involving men as defendants because men kill more often than women.



JENNY BROCKIE: Tim Ellis, as the Director of Public Prosecutions in Tasmania, you pushed to get the provocation defence abolished there nine years ago, it was the first place in Australia to actually get rid of the provocation defence. Why? Why did you do that?



TIM ELLIS, DIRECTOR OF PUBLIC PROSECUTIONS, TAS: It struck me that it had no place in a civilised society to excuse, even as it's called partially excuse, murderous actions because someone's lost self-control. It just isn't civilised so I put that out for discussion. Now I'd done a case a long time ago, in 1984, which I suppose it stayed with me. A man who I acted for had shot his partner who he found cuddled up, fully clothed, with a friend on the floor - had shot them both twice at close range. In the trial, having discovered them suddenly -this is almost your classic case of provocation.

In the original trial, the trial Judge wouldn't allow that to be considered by the jury as provocation. He was duly convicted. On appeal the Court of Criminal Appeal held that that was adequate for the Court, for the jury, to consider it as provocation. That he'd discovered them, the added factor was that his partner laughed scornfully at him. That was the insult apparently that was sufficient to trigger a murderous rage in an ordinary person such that he killed two people.



JENNY BROCKIE: And how often does something like that get accepted?



TIM ELLIS: Oh, often - as an example, this year I personally prosecuted a case of murder up the north-west coast of Tasmania where two men who were friends had been drinking on Boxing Day. The man who was killed was said by the man who killed him to have made an unwelcome sexual advance to him and touched him on the testicles, at which the first man picked up a hammer which was apparently close by and struck the other man to the head as hard as he could 16 times and killed him. Now if provocation was still available as a defence in Tasmania, that would have been left to the jury to have considered that that wasn't a murder, it was just manslaughter.



JENNY BROCKIE: But I mean a sexual advance - why would that have even been considered in that context? Because it was a homosexual advance as opposed to a heterosexual advance? Would that be the reason?



TIM ELLIS: Because of the touching to the testicles would have constituted an assault and time and time again, in this homosexual advance, it has been held by Judges to have been capable of depriving an ordinary man of self-control.



JENNY BROCKIE: What do other people think about that?



ROB STARY: Well I don't think that would happen now. I mean I think the law has to be gender neutral in its application and I just don't think, I can't conceive of a situation.



JENNY BROCKIE: Okay sorry, what did you say Tim?



TIM ELLIS: It's been left in Queensland quite recently. So to say it wouldn't happen is fatuous.



JENNY BROCKIE: Mark, you want to keep the provocation law in New South Wales, can you explain why?



MARK IERACE: Yeah, look I will, and can I just give this by way of background the information that there's a parliamentary inquiry at the moment looking into provocation. The Bar Association, have made submissions to that parliamentary committee, to the effect that it may well be appropriate to eliminate provocation which is based on sexual infidelity and jealousy and sexual, non violent sexual advances. Let's legislate to eliminate those two scenarios where that's the only provocation. But let's not abolish provocation all together if the effect of that is going to be to cause what we would all regard as gross injustices. How do we come up with the wording that achieves that? That's not easy; we have to try and do it but we have to recognise it's not going to be easy to achieve.



JENNY BROCKIE: Tonight we're talking about whether killers should be able to plead provocation in order to get a reduced sentence. I wanted to ask you Julie a little bit more about this defence and why it was established in the first place.



PROFESSOR JULIE STUBBS: Oh dear, it has a very, very long history, probably 400 years or more. It probably reflected the common scenarios in which men kill and recognition that some men were more culpable for the killings than others.



JENNY BROCKIE: How relevant is it in the 21st century if it was initially set up around male to male violence, you know, duals?



ROB STAR Y: I think it was when the death penalty applied to murder cases. That's why provocation developed as a defence.



JENNY BROCKIE: So it was a way of….



ROB STARY: Ameliorating the consequences.



JENNY BROCKIE: And creating more shades of murder?



ROB STARY: Yes.



JENNY BROCKIE: That there were different kinds of murder. Betty, I wonder what you think about that because you've dealt with domestic violence cases for more than 25years.



BETTY GREEN, LIVERPOOL WOMEN’S HEALTH CENTRE: Yep.



JENNY BROCKIE: What do you think about the way provocation is used now in the law?



BETTY GREEN: Well I think at the very root it of it is that we fail to understand that killings on a background of domestic violence have distinctly different dynamics than any other killing and researchers are quite confident when they say that the killing of women, the domestic violence homicides are actually the most predictable and preventable because they don't happen out of the blue. They don't happen because of mind snap or it's uncharacteristic. In the context of domestic violence we're talking about escalation and an increase in severity and frequency over a period of time. So I think this is what we're grappling with and I think that's part of the problem when we're trying to put the framework of provocation over domestic violence killings. In the context of domestic violence we fail to acknowledge the distinct differences in the dynamics.



JENNY BROCKIE: Now you're talking there about men killing women?



BETTY GREEN: Because that predominantly is what the statistics tell us.



WOMAN: As a woman you're more likely to be killed by your partner or your ex-partner than any other person.



JENNY BROCKIE: So we'll get onto women killing men in domestic violent situations in a moment but before we do, Mark, I mean how successfully do these cases get prosecuted? How easy is it to prove provocation in the kind of situation Betty's talking about?



MARK IERACE: Well overall provocation is not a very successful defence in the sense that in one study done over a 14 year period only 44 % were successful.



JENNY BROCKIE: Is that your experience Betty?



BETTY GREEN: From what I can understand, the women who are, are on trial for killing their partner, self-defence is rarely ever offered to them. That's the kind of defence that should be run and that's what we argued in our submission to the inquiry because that's what we found, was that that is a better fit.



JENNY BROCKIE: So isn't it run? Why isn't self-defence run?



BETTY GREEN: Well that's a question that our learned friends need to answer as to why it isn't applied.



ROB STARY: Well having successfully defended two women in those circumstances where we looked at what domestic violence constituted, not just but physical domestic violence but psychological, financial oppression of the woman, where there had been a long term history, they successfully argued that they believed that their lives were threatened. They had a belief and the jury accepted that they had a belief that their lives were threatened.



PHIL CLEARY: Did they go to gaol Rob?



ROB STARY: Yes they do because….



PHIL CLEARY: So women go to gaol for killing a violent man; men get less of a gaol sentence for just killing the woman in their life, they are the facts.



JENNY BROCKIE: Now underpinning your passion Phil, and we should clarify this, is the situation with your sister.



PHIL CLEARY: Yes.



JENNY BROCKIE: Which is many years ago now. Can you just fill everyone in on what happened with your sister?



PHIL CLEARY: Yes, my sister was parking her car outside of a kindergarten in 1987. Her ex-boyfriend accosted her, came with a knife. He stabbed her 14 times or thereabouts, cut her hands as she defended herself, four cuts to her liver. She died in hospital. Then we went to trial and we saw a provocation unfold. But then as I saw that unfold I looked at the other provocation cases - it's a nonsense to think they aren't everywhere, there's one, the Singh case in Sydney, they are everywhere.

My sister's name and character was pilloried, Rob Stary knows, every defence lawyer knows that when you go into Court in a provocation case, you belittle the woman, you challenge her right to leave a relationship, you challenge her fidelity, you challenge the core of a woman's life.



JENNY BROCKIE: Okay Rob, response?



ROB STARY: Well, firstly, you can never belie the terrible consequences of a homicide so I'm not going to try and do anything to minimise that. It's horrendous. And I'm not going to try and justify provocation defence because I don't believe in it and that's why the law was reformed. And the law's reformed in Victoria where you are not permitted to pillory the victim. You are not permitted to denigrate the person. The Court will intervene.



JENNY BROCKIE: Do you think that is happening though in other jurisdictions when it's being used?



ROB STARY: Well it's a change that's occurring incrementally. It's occurred in the UK, it's occurred in Tasmania, Victoria, Western Australia, and it will inevitably change, I expect, in New South Wales



JENNY BROCKIE: Tim, what's your experience of this? I mean do you think it's used that way?



TIM ELLIS: It is. It is a gender based defence.



JENNY BROCKIE: I mean are you saying there's an acceptance that men are more prone to violence?



TIM ELLIS: No.



JENNY BROCKIE: And therefore, it's a more, it's somehow a more acceptable behaviour in men than in women?



TIM ELLIS: The model of behaviour upon which provocation is posited is a male reaction. It's a sudden frenzied reaction, a reaction to injured pride or dispossession or something like that. The female reaction tends not to be as sudden and explosive.



JENNY BROCKIE: And what happens if the man stews, if he doesn't respond, if he takes the longer?



TIM ELLIS: It's murder, well that is murder usually, I mean it is murder. If you stew over something and you determine that you will kill someone, and you wait your time and you kill them, that's murder.



JENNY BROCKIE: Heather, I want to talk to you now because you spent almost ten years in gaol for murdering your husband in Victoria 20 years ago. Why did you kill him?



HEATHER OSLAND: Well I actually didn't kill him. My son killed him to save my life and his own life and David was found not guilty on the grounds of self-defence for saving my life and his life. But we were both charged with murder and I was sentenced.



JENNY BROCKIE: So your son got off all together?



HEATHER OSLAND: Yes.



JENNY BROCKIE: Now tell us what happened when you killed him, well first of all what led up to this? What had happened leading up to this?



HEATHER OSLAND: Well it was thirteen years of violent abuse from my husband which sort of led to that day that was either me be killed or -he would kill me or he was to, he died.



JENNY BROCKIE: What sort of violence was it? What sort of things would he do?



HEATHER OSLAND: You name it. He owned the air that I breathed so he stopped me from talking to people. I couldn't go out. He had rules that we had to obey, he killed our pets, he abused my son, he abused my daughters.



JENNY BROCKIE: What, sexually abused them or physically abused them?



HEATHER OSLAND: Physically abused, them yes.



JENNY BROCKIE: And you?



HEATHER OSLAND: And me, yes.



JENNY BROCKIE: Now the Judge in your case accepted much of the evidence that you gave about what had happened in the run up to your killing your husband. You pleaded not guilty to murder?



HEATHER OSLAND: Yes.



JENNY BROCKIE: And what happened then?



HEATHER OSLAND: The jury brought me back guilty to murder and my son they couldn't get a verdict so he was tried again and that's when he was found not guilty to murder.



JENNY BROCKIE: So can you just explain what happened when you killed your husband.



HEATHER OSLAND: He'd belted me before when he came home from work - he got stuck into my son. He'd ordered David to leave the house when he came home from work. David hadn't left and he was just, I can't explain his violence.



JENNY BROCKIE: But you and David had got together in relation to this?



HEATHER OSLAND: That day, yes.



JENNY BROCKIE: And you decided to kill him?



HEATHER OSLAND: No, there was no thought of killing him until about 9 - 9.30 that night and David, we sort of said what are we going to do? It was just I wouldn't have survived tomorrow.



JENNY BROCKIE: So what did you do? What happened?



HEATHER OSLAND: Well, David just went down the shed and got a piece of pipe and just went into the room and just hit Frank and that was it.



JENNY BROCKIE: Now there was evidence produced in the Court that you had dug a hole to dispose of the body and that you had then told people that he'd disappeared?



HEATHER OSLAND: That's right.



JENNY BROCKIE: So when you listen to this discussion about provocation, what do you think? Can you understand why you were found guilty of murder?



HEATHER OSLAND: Well I really can't talk the law but in my case there should have been more evidence. There should have been an understanding, there should have been witnesses be able to tell their abuse, what Frank did them to them. But that wasn't, he was violent to his workmates and there what's no evidence of that.



JENNY BROCKIE: Phil, you're aware of this case, aren't you?



PHIL CLEARY: Yes.



JENNY BROCKIE: What do you make of it?



PHIL CLEARY: The contradictions are so clear Jenny, a woman lives with a violent man, ends up doing something that looks like premeditation, therefore can't get a provocation defence. But go to the trial, woman found guilty when she doesn't even hold the pipe that kills Frank Osland. the son does, separate trial but found not guilty. My argument about the Lady McBeth syndrome - women are always blamed in courtrooms. When they're killed they're blamed, when they're raped they're blamed. We have a blaming culture against women. That's the moral of the Heather Osland story.



ROB STARY: I think in terms of the developments that have taken place since Heather's case, that she would have had the opportunity of a defensive homicide. I'm almost certain she would have been successful.



JENNY BROCKIE: Defensive homicide?



ROB STARY: Defensive homicide.



JENNY BROCKIE: Which is in Victoria, which is what's replaced….



ROB STARY: Yes, where it would have been accepted that she had a belief that she needed to act in self-defence. Whether ultimately it was reasonable or not would have been a matter for a jury but she would have certainly had that opportunity and I'd be very confident that that's what would have occurred.



JENNY BROCKIE: And what would that have meant for Heather in practical terms?



ROB STARY: Well it would have meant still the imposition of a term of imprisonment, but it would have been a lesser period of imprisonment.



JENNY BROCKIE: So less than what, nine and a half years?



ROB STARY: Much less. Yes.



JENNY BROCKIE: But can it be self-defence, for example, if it's premeditated?



MARK IERACE: That's part of the problem, that's relying on self-defence as the legal remedy for these sorts of situations.



JENNY BROCKIE: Because the hole was dug before the murder happened in this case..



MARK IERACE: Yes.



JENNY BROCKIE: So that was a part of the evidence presented in Court, that it was premeditated?



MARK IERACE: And the essential difference between provocation and self-defence is that in self-defence the jury has regard to proportionality. Was the response by the accused proportionate to the threat? Was it a reasonable response? And that's an objective test, whether the jury thinks objectively it was reasonable, whereas with provocation, the essence of it is the loss of self-control.



JENNY BROCKIE: Heather, had you tried to get help in this situation?



HEATHER OSLAND: I had, yes.



JENNY BROCKIE: But what had happened?



HEATHER OSLAND: But the police said he was too violent for them to handle and just stay away from the Osland family and that was their response.



JENNY BROCKIE: And you said you tried to leave him eight times.



HEATHER OSLAND: Eight times, yes.



JENNY BROCKIE: And what happened each time?



HEATHER OSLAND: He would follow me and stalk me. He threatened my mother - he's going to shoot my mother. You know, I've had a gun at my head but he should have been charged with attempted murder of the five of us.



JENNY BROCKIE: And did you take those stories to the police? Did you tell them what was happening?



HEATHER OSLAND: They knew and they also knew at Court, but Frank wasn't there to answer for himself because hearsay in those days, but was, you know, it wasn't something that you could have a trial.



JENNY BROCKIE: Rob, this case was influential in Victoria?



ROB STARY: Yes it was.



JENNY BROCKIE: In getting rid of provocation, the provocation defence?



ROB STARY: Well not so much provocation but to recognise that domestic violence can accrue and accumulate over a period of time and so it was an important development to say that women who are the subject of that sort of domestic violence in every form, should have the opportunity of a defence.



JENNY BROCKIE: So was defensive homicide introduced in Victoria to benefit women?



ROB STARY: Yes it was.



JENNY BROCKIE: That was the aim of the law?



ROB STARY: That was, that was the parliamentary intention.



JENNY BROCKIE: Shaye, you've been listening to all of this and I know that you have a terrible story to share with us about your daughter and what happened to her. She was stabbed by her ex-partner in 2008. Now he used domestic homicide as his defence which is this law in Victoria. Tell to us what happened to Jade?



SHAYE BECK: He was an aggressive and violent person. She left him, she got a restraining order on him. She went back to the house to feed her dog because he threatened to just let it starve and let it die in the backyard. She went to the house and he stabbed her in the back four times.



JENNY BROCKIE: Now the jury heard that they'd both been violent to one another, yeah? And also that they'd both shared a history of drug abuse, were you aware of her violence as well as his violence?



SHAYE BECK: My daughter wasn't a violent person, she wouldn't have hurt a fly. She was 50 kilos, she weighed less than me. She had….



JENNY BROCKIE: And how big was he?



SHAYE BECK: Oh, about 90 something kilos, nearly 6 foot tall and she was about my height, about 5 foot 3.



JENNY BROCKIE: But they had a volatile relationship?



SHAYE BECK: They did, they did, but you know the saying the bark's worse than the bite? My daughter was loud and she was very opinionated, she was not the sort of girl that would bow down to being told, you know, what to do or how to do it. Even if she knew that she was going to get hurt, which we found out at the trial she did many times, they brought up the fact that he - she tried to get out the front door on one occasion and he grabbed her by the hair and dragged her all the way back down the corridor which was quite a long corridor. He kicked her in the head with steel capped boots, split her head open in several places. She needed to go and have stitches. He tried to strangle her while she was asleep.



JENNY BROCKIE: How many years in gaol did her killer get?



SHAYE BECK: Twelve, but then that was brought back to eight with good behaviour and he's been in for four and, you know, he's already appealed once which I went to make sure that they were not going to take that seriously, which they didn't. So probably another three or four years he'll be out.



JENNY BROCKIE: Now Rob, this is a case of defensive homicide being used. Do you think it's, I mean have you followed this case closely? Do you think it's a reasonable result?



ROB STARY: Well, I don't want to comment on this case but it's often described as the worse case example and people should read the Judge's sentencing remarks himself and the Judge said a lot of aggravation.



JENNY BROCKIE: What did he say?



ROB STARY: The jury must have accepted, that he had a belief that he needed to act in self-defence. Whether ultimately it was said to be reasonable the jury rejected that and he was found guilty of defensive homicide



JENNY BROCKIE: Do you think the law of defensive homicide is working better than the law of provocation?



ROB STARY: Absolutely, there is no question about that.



JENNY BROCKIE: Why?



ROB STARY: Because firstly it provides people like Heather Osland, who are the subject of long term domestic violence, who need to or who are involved in the killing of an abusive spouse or partner, the opportunity of at least a partial defence.



JENNY BROCKIE: Phil?



PHIL CLEARY: Well I've got to defend Jade Bownds. It is totally improper for it to be said of her that she had some kind of volatile relationship in the context of a murder. What does that mean? A little girl is stabbed in the back four times by a big man and the Judge said in his remarks a troubled young woman. What is a troubled young woman Jenny? Every woman troubled? What does that mean? Is that a pejorative?



JENNY BROCKIE: Betty, do you agree with that?



BETTY GREEN: I do. I do, I think when we start to get into the area of victim blaming, attention is completely shifted then on to what the victim did or didn't do and the brutal act itself becomes invisible. So where there's been domestic violence there or not that becomes invisible as well. And I think that that's also a reflection of our society which, you know, we do blame victims. We do ask particular questions for domestic violence - well why didn't she leave?



JENNY BROCKIE: I just want to talk a little bit about whether there is gender bias in the law. I mean Phil clearly thinks there is. I wonder what everyone else thinks, is there gender bias around this issue of killing?



TIM ELLIS: Provocation certainly is, which is what we're here to speak about.



JENNY BROCKIE: Yeah.



MARK IERACE: Except again you're ignoring those cases which clearly have nothing to do with bias towards men, where women take advantage of the provocation defence and I think you need to consider those cases. And whether they, and whether….



PHIL CLEARY: Give us a couple of big ones that we can all get our teeth into?



MARK IERACE: Some examples of provocation defences used where the community had no difficulty with the outcome included a street kid who the Judge found had an appalling life, was staying with an older man who sexually abused him, and then a few weeks later, in the flat approached him naked and he lost self-control and killed that person. That's one example.



JENNY BROCKIE: And what happened in that case? What was the result?



MARK IERACE: He was given a good behaviour bond for three years, he was aged 16 at the time of the killing and there was no community outcry at that result. There have been a number of cases where women have been in appalling relationships and have been subjected to on-going violence and a combination of other pressures, separate from the violence from the men, where they've had the advantage of the provocation defence and been given good behaviour bonds, again with not a whisper of concern from the community. And these are the cases that we have to be careful we don't eliminate in terms of a reasonable outcome if we get rid of provocation. Now many of these cases could not use self-defence because self-defence again is about proportionality of the response to the threat and there have been such cases where the accused has tried self-defence and failed but succeeded on provocation as an alternative defence.



JENNY BROCKIE: Tim, your response to that? I mean they're pretty powerful arguments?



TIM ELLIS: The test for the jury is whether the prosecution haves satisfied that an ordinary person couldn't have lost self-control, that's the ultimate test and to put it the other way simply isn't accurate. It's not a question of whether they should or shouldn't have. Now what I've been saying is people shouldn't lose self-control and kill other people. If you like there should be a law against it, there is a law against it, it's called murder. And there should be a full range of sentencing options available to a Judge faced with murder in these circumstances. It's in the jurisdictions where there isn't full flexibility in sentencing for murder that you have this problem, you have to have the blunt choice between murder and manslaughter, provocation or not?



MARK IERACE: I could well imagine that if we got rid of provocation, in some cases where a Judge handed down a good behaviour bond or two years imprisonment non parole period for murder, there would be public outcry. I think there's an argument for the jury to be involved in determining whether a case falls into a category where a significantly lesser sentence is warranted for an unlawful killing, and if we're going to involve the jury that means we need a different label. Whether it's defensive homicide or whether it's manslaughter.



JENNY BROCKIE: How often does the defence of provocation benefit women? I mean we've heard a lot about it benefiting men in terms of their sentencing. Julie, do you know how often the defence of provocation actually benefits women?



PROFESSOR JULIE STUBBS: If women are successful in using it, either as the basis for a guilty plea or after trial, the sentences are lesser sentences. Sometimes they're non-custodial sentences even. Women very commonly don't go to trial. Battered women who have killed very often plead guilty. There are all sorts of incentive and reasons why they might avoid a trial. Even if they do have arguably a self-defence, we sometimes see cases pleaded guilty. But having pleaded guilty, commonly on the basis of provocation or another partial defence, where they exist, they don't exist everywhere, over time they've been -it's very useful for battered women and we're getting better outcomes in those jurisdictions where partial defences still exist.



JENNY BROCKIE: Tonight we're talking about provocation. Jaspreet, I wanted to go back to something you raised at the very beginning about your sister's husband claiming that your sister, things that your sister had said to him just before he killed her. Was there any evidence found to back up the things that he claimed?



JASPREET KAUR: No, no, nothing.



JENNY BROCKIE: And this is about another man?



JASPREET KAUR: Yes.



JENNY BROCKIE: Her planning to leave him to be with another man?



JASPREET KAUR: Yes.



JENNY BROCKIE: Taran, Manpreet was your friend, a very close friend, had she ever talked to you about another man?



TARAN MALHI: No, she spent all the time with me, we went to college together. All the time we was together.



JENNY BROCKIE: People have secret affairs though, I mean did you ever contemplate that she might have been?



TARAN MALHI: No. When she was with us, like sometimes we have to spend much time in uni, like for assignment work or some other things, she was with me and he start sending her messages, like: "You are with some boy", like bad messages, and she always showed me ‘look I'm with you and he is sending me these kind of messages’. And when he abuse her when they was in Strathfield, she told me about that and she said never show in front of him that I told you about that - like he beat me - because she really loved him.



JENNY BROCKIE: Shaye, what did your daughter's killer claim that your daughter said to him before he killed her?



SHAYE BECK: I'm not sure about that there was actually anything said but apparently, according to Luke, that my daughter picked up a knife and threatened to stab him. Now the strange part about that was that she was the only one found with any wounds, of course you know, after she'd died. No other knife other than the one he used. So again, you know, it's the same thing.



JASPREET KAUR: Same thing, yeah.



SHAYE BECK: That they took his word. My daughter was dead, Jade couldn't speak for herself, she couldn't stand up and go, no, you're a liar, I did not try to attack you or anything else, but they took his word for it that he had to defend himself, he was actually stabbing her like this across the shoulder and the last one went in so deep that it actually punctured her lung, which is what killed her, and it was a very slow painful death because she was actually, the blood was coming back up in her throat. And so while she escaped and tried to get help, no one would have even been able to hear her call for help because she was choking on her own blood.



JENNY BROCKIE: So there was no one who actually said she'd threatened him with a knife?



SHAYE BECK: No. It was just him.



JENNY BROCKIE: It was just his word? And there was no one who witnessed your sister saying these things that were alleged to the husband?



JASPREET KAUR: Yes.



JENNY BROCKIE: Mark, is this one of the problems with the provocation defence, that in domestic homicides there are often only two people involved and one of them dies, one of them is the victim and dies, so you rely on one person's version of what actually happened to be provoked. There's no other witness there?



MARK IERACE: And that is a situation that is faced not just in provocation cases. Courts have to deal with it all the time. Now the Judge does not have to accept the evidence of the accused. So when the accused gets into the witness box and swears to tell the truth, and gives their account and they're cross-examined by the Crown Prosecutor, the Judge isn't obliged to accept that evidence, even where there's no opposing evidence. The Judge can simply not accept it. This is something Courts have to deal with all the time in terms of what the accused believed.



JENNY BROCKIE: What are the alternatives? We've talked a little bit about defensive homicide. What else?



ROB STARY: Well manslaughter is an alternative verdict where the person might not intend to kill or cause serious injury to the victim so that's an alternative.



JENNY BROCKIE: What do you think Betty, because you've changed your view on this a bit, haven't you, about whether you think provocation should be done away with or not?



BETTY GREEN: Oh, yes I did. I guess at the beginning and in response to the Everitt's story I'm on the record of saying that I would support any move to abolish the defence of provocation in New South Wales and I guess our work party from the New South Wales Domestic Violence Committee got together and we started to look at it, read the articles, draw on expertise from Julie and from other experts and it's actually quite a very complex area of law and the problem, I guess, you know, why we approached it, you know, very circumspectly is that you don't want to be tinkering at the edges or changing something that will then produce unintended consequences particularly for….



JENNY BROCKIE: Such as, what are the unintended consequences you're worried about if you got rid of it?



BETTY GREEN: Well we wouldn't want to make any changes that would disadvantage women, victims of domestic violence, who….



JENNY BROCKIE: Killed?



BETTY GREEN: Killed, who fought back, and we know that, you know I guess what's got lost here in this discussion is that you know, the reasons why men kill are usually based on revenge, jealousy, anger, perceived infidelity, control, loss of control, that kind of thing.



JENNY BROCKIE: So this is not just about New South Wales though, is it? I mean this is now being considered or looked at or certainly it's a live debate around the country at the moment.



ROB STARY: Well, I do think there's going to be inevitable change. I think, as I said, there's an irresistible tide that's sweeping really the western world.



JENNY BROCKIE: How much of a reduction in sentence do people get now if they plead guilty and go with provocation? Like what sort of difference are we talking between that and murder?



ROB STARY: Well there's a much greater discretion if there's a verdict of manslaughter for instance. Everything, as Mark said, from a non-custodial sentence to a 10, 12 or 13 year sentence. So there's a much wider range. It's a lesser range in defensive homicide circumstances, there's a very narrow band of circumstances.



PHIL CLEARY: Six to eight for manslaughter under provocation, four in my sister's case, 18 to 20 for murder.



JENNY BROCKIE: Is that….



PHIL CLEARY: That's around about it. You get 20 years for murdering a stranger. You can murder your wife under provocation and get 6 to 8, Rob knows that, he could recite those facts as easily as I can.



JASPREET KAUR: But there is also discount if you plead guilty for manslaughter or murder. Like in my case he got 25 %t discount, so why you are just giving discount, if he did he did.



JENNY BROCKIE: Julie, what do you think should happen to the defence of provocation?



PROFESSOR JULIE STUBBS: I'm troubled that in trying to redress one injustice, and I note that there have been injustices around the use of provocation, that we don't create another. So to give you an example, in New Zealand they abolished provocation and there's no other partial defence. Battered women there who in the past might have been able to plead guilty to manslaughter are now going to trial and being convicted for murder and they're getting life sentences. That's unfortunate and we don't want to go down that path. If we can redraft provocation to exclude some of those categories that are the greatest concern for injustice, that would be a good outcome but it's not an easy thing to achieve. That redrafting needs to be incredibly careful to ensure that we don't exclude worthy cases that we haven't perhaps thought of.



JENNY BROCKIE: Tim, what's happened in Tasmania since it was abolished? It's been what, nine, ten years?



TIM ELLIS: As I said before, I think we're better off for it. We're a better society for not having this blame the victim type of defence.



JENNY BROCKIE: But Judges have more discretion in sentencing?



TIM ELLIS: Judges have complete discretion in sentencing, in Tasmania they have complete discretion in sentencing.



JENNY BROCKIE: What do you gentlemen want to see happen now, around the country, around this issue?



ROB STARY: I think one thing that is absolutely fundamental is that we do not lose judicial discretion, so the woman that's been subjected to long term domestic violence can be appropriately dealt with if they're found guilty of a homicide that's said to be unlawful.



JENNY BROCKIE: Mark?



MARK IERACE: Well I think Julie Stubbs has hit the nail on the head. We need to move and move very carefully and consider what the consequences will be to any change that we propose to make. Whatever attempt we make, I think there needs to be a review a few years down the track to see how it's working.



JENNY BROCKIE: Thank you all very much for sharing your stories tonight. I know it hasn't been easy for any of you so we really do appreciate you joining us and thank you everybody else too, it's been a very interesting discussion. We do have to wrap it up here but can you keep talking on-line. Go to our website, Twitter or Insight's Facebook page.