Research conducted by Deakin University Criminologist Dr Kate Fitz-Gibbon has been cited heavily this week in a Final Report published by the Select Committee of the NSW Parliamentary Inquiry into the Partial Defence of Provocation in murder trials.
The Final Report, which describes Dr Fitz-Gibbon’s research as a “key piece” of research providing information on the use of provocation in NSW, recommends retaining a restricted version of the defence that would be renamed “the partial defence of gross provocation”.
Dr Fitz-Gibbon’s research on provocation in NSW has highlighted the gender bias inherent in the defence’s operation and has been pivotal in revealing the flaws in the current operation of the law of provocation in NSW.
"My research has highlighted the problematic use of the defence in male perpetrated intimate homicides and the consequential victim blaming narrative that emerge at trial and sentencing in such cases," Dr Fitz-Gibbon said.
Qualitative analysis of provocation in NSW draws from 36 interviews conducted between 2010 and 2012 with members of the NSW Supreme Court judiciary, Office of the Director of Public Prosecutions, Public Defender’s Offence and independent defence counsel as well as a detailed case analysis of all cases where provocation was successfully raised as a partial defence to murder in NSW between January 2005 and August 2012.
In her invited submissions to the Inquiry and when giving evidence during the public hearings, Dr Fitz-Gibbon has strongly advocated for the abolition altogether of provocation in NSW - a position that contrasts with the recommendations favoured in the Committee’s Final Report.
“Having studied divergent approaches to reforming the law of provocation in other Australian and international jurisdictions, I am concerned that if available - in any shape or form - the defence will be open to manipulation and will have unintended consequences in practice,” Dr Fitz-Gibbon said.
“For this reason I am urging the NSW Government when it responds to the Committee’s recommendations to think twice before allowing the archaic provocation defence to continue to be a stain on the NSW criminal justice system.”
The findings of Dr Fitz-Gibbon's research examining the operation of provocation in NSW have been published in the Australian and New Zealand Journal of Criminology (2012, vol 45, no 2) in “Provocation in New South Wales: The New for Abolition”.