Review of the accident and provocation defences of homicide
October 2007
Introduction
Recently there has been strong community interest about the extent to which people charged with murder or manslaughter in Queensland should be able to argue their actions were accidental or they were provoked. Much of this debate occurred after three high-profile cases where juries decided to acquit defendants accused of murder or manslaughter. The cases involved the tragic deaths of three young people in separate incidents. Two young men died after being assaulted in inner Brisbane late at night and a young woman was killed by her former boyfriend. Attorney-General and Minister for Justice, Kerry Shine announced earlier in 2007 a review of the accident and provocation defences and how they have been operating in Queensland murder and manslaughter trials.
How does the system operate currently?
While we all generally agree that it is unacceptable to take another person’s life, there are some circumstances when causing someone’s death may be excused. For example a person is killed by another who is acting in self defence or defending their children. There are other circumstances where a person may be held accountable for their actions but to a lesser degree, for example when a person is killed but the defendant didn’t intend to kill the other person. In these circumstances a person can be convicted of manslaughter rather than murder. But before a person can be convicted of a criminal offence, their guilt must be established “beyond reasonable doubt”. For a jury to convict or acquit a defendant it must consider all the evidence and unanimously agree on a verdict. The jury’s job is to determine the facts of the case, based on the evidence given during the trial, and it is the judge’s job to direct the jury on the law that applies to those facts. A jury is made up of people from all walks of life. By bringing in the ordinary experiences of ordinary people, the jury system allows the community to participate in a most significant way in the operation of our criminal justice system. However, for the protection of jury members, jury deliberations are confidential and we don’t know how a jury interprets the facts or evidence or what issues they regarded as the most important in reaching their verdict. Sometimes a defendant raises possible defences or ‘excuses’ for what happened, for example that they were acting in self defence. In many cases, more than one defence or excuse is raised by the defence. We also do not know which excuses the jury accepted or rejected. Juries are asked to consider and analyse complex issues and judges have to give them careful instructions about the job they have been asked to do.
Accident and provocation - the current law
Accident
The law on the defence of accident is based on the words in section 23 of the Criminal Code and on how those words have been interpreted by our courts. Section 23 of the Criminal Code says that a person is not criminally responsible for an event which occurs by accident. Over the years, courts have decided that an event occurs by accident if it is an outcome which was not intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person. In other words, death may result from a deliberate act, such as a punch, but could be such an unlikely consequence of that act, that an ordinary person could not reasonably have foreseen that death would result. The prosecution must prove, beyond reasonable doubt that the event was not an accident.
What is the review looking at?
The review of the defences of accident and provocation includes a discussion paper and this short overview to explain some of the key issues being examined. We are keen to hear your views of the operation of the defences and whether you think they are still in line with community attitudes. Some of the key questions include: 1. Should a person be held criminally responsible for an unintended and unforeseeable outcome of their actions? 2. Is the defence of provocation appropriate for a case where death results from a person’s actions? 3. In what circumstances, if any, should provocation provide a partial excuse for murder?
What does the discussion paper look at?
The discussion paper provides a review of Queensland’s laws in relation to the defences of accident and provocation. It includes comparison with other states in Australia and other countries and looks at recent law reform in other Australian states and in New Zealand and the United Kingdom. The discussion paper also looks at the role of the jury and the nature of Queensland’s sentencing system. The discussion paper outlines the results of an audit of manslaughter and murder trials over the past five years. In each of the cases considered, a jury determined whether or not the person charged was guilty or not guilty.
Provocation
The law on the defence of provocation is based on the words in section 304 of the Criminal Code and on how those words have been interpreted over the years by our courts. If the jury decides that a murder occurred while a person was provoked, then the jury can convict the person of manslaughter instead of murder. If provocation is raised as an issue in the trial, the prosecution must prove beyond reasonable doubt that the accused was not provoked. The defence of provocation developed at a time when the death penalty applied to murder. It recognises that in some circumstances a person can not be expected to properly control their behaviour, and that an ordinary person might react in the same way. In these circumstances, the law says that a person should not be convicted or punished for murder, but should instead be punished for the offence of manslaughter.
What has the audit looked at?
The audit involved analysing a selection of murder and manslaughter trials between July 2002 and March 2007. The audit examined these trials to determine how often people accused of murder or manslaughter rely on the accident and provocation defences.
What did the audit find?
The audit found that in most cases in which a particular defence or excuse was raised, it was raised in conjunction with another excuse or defence. The audit also found that a defence or excuse could be raised in circumstances where it appears that it was not the major issue at the trial, for example where the major issue at the trial was the identity of the killer.
Does the discussion paper come to any conclusions?
The discussion paper does not reflect or represent the views of the government or the Attorney-General, nor does it propose a particular direction for future action. The purpose of the discussion paper is to provide information about the nature and frequency of the use of these defences and provide a way for people to express their views about whether any changes should be considered.
How can I get a copy of the discussion paper?
The discussion paper is available on the Department of Justice and Attorney-General website at www.justice.qld.gov.au. Copies can also be arranged by emailing strategicpolicy@justice.qld.gov.au or phoning 07 3239 3460.
How do I make a submission?
Submissions can be mailed to: The Hon Kerry Shine The Attorney-General and Minister for Justice and Minister Assisting the Premier in Western Queensland GPO Box 149 BRISBANE QLD 4000 or emailed to: attorney@ministerial.qld.gov.au
The closing date for submissions is Monday 3 December 2007.