Provocation defence flawed: report

By John Silvester, Ian Munro

November 1, 2004

The Victorian Law Reform Commission wants the laws of provocation in homicide cases tightened, after finding major flaws in the existing system.

It is believed the commission wants the Government to drastically cut circumstances in which a provocation-style defence can be put to a jury.

In a report to be released publicly in three weeks, it is believed to have found that women are severely disadvantaged under the present laws.

The report was completed before a Supreme Court jury on Thursday found James Stuart Ramage not guilty of murder but guilty of the manslaughter of his estranged wife, Julia.

His defence argued that he had been provoked by the victim, who was alleged to have taunted him moments before he "lost it". Ramage punched and strangled her, then buried the body in Kinglake.

It is believed the Law Reform Commission has recommended that the defence of provocation should not be available when words alone are alleged to have sparked a homicide. If the reforms are accepted, the Ramage defence will no longer be accepted.

The commission has also urged that the battered wives' defence in homicide cases be strengthened in cases where an accused has been in an abusive relationship. Under the battered wives' defence, a murder charge can be reduced to manslaughter if the killer has been subjected to a pattern of cruelty by the victim.

Some commission members favour introducing the doctrine of excessive self-defence, which would lower a homicide to manslaughter when a person overreacts to a real threat.

NSW and Victorian studies show that the defence of provocation is used more often by men who have killed women than women who have killed men. But women used the defence more successfully.