Domestic violence campaigners have called for the state's "outdated" and "medieval" provocation laws to be urgently overhauled, warning the partial defence to murder is being used as a "get out of jail free" card.

The change is one of five key measures recommended by the brave families of some of Queensland's tragic DV victims, who have united with survivors and campaigners on the anniversary of the murders of Hannah Clarke and her children this week to demand an end to the cycle of tragedy.

The partial defence of provocation considers whether an act or insult could deprive an ordinary person of self-control and in such cases, they would be convicted of manslaughter rather than murder.

It was most recently back in the headlines in December when Arona Peniamina was granted a retrial after a High Court majority found the judge in his 2018 trial had wrongly instructed the jury about how it should consider if the defence of provocation applied to his case.

Arona Peniamina.
Arona Peniamina.

Peniamina was sentenced to life in prison in November 2018 after a jury convicted him of the murder of his wife and mother-of-four Sandra, 38, who he violently stabbed with a knife and bludgeoned with a fence bollard until she died.

He tried to argue that he was provoked because he was stabbed while trying to wrestle a knife from Sandra after he hit her, and he also believed his wife was having an affair.

The High Court found the judge had wrongly instructed the jury about the elements required to allow the defence in Peniamina's case but Sandra's sister Carnetra Nathan says the outdated provocation laws should not be an option at all.

Ms Nathan, who lives in New Zealand and now cares for Sandra's four young sons aged 15, 13, 10 and nine, said the family was heartbroken by the High Court's decision.

"The justice system is not helping those that have died or their families to heal and move on from this," she said.

"This (legislation) needs to be looked at and (changed).

Ms Nathan said she wanted to see the defence abolished in a domestic violence context, saying it was "ridiculous".

"We don't want anyone else to go through what we went through," she said.

Queensland Homicide Victims Support Group general manager Brett Thompson described the partial defence as "medieval".

"Fundamentally, the death penalty doesn't exist in this country," he said.

"Anyone who thinks they're the judge and jury of someone else's life is wrong. The fundamental concept of provocation - that someone is even partially justified in killing someone for a reason like having an affair - seems medieval to me.

"Apart from genuine self defence, it's never OK to intentionally hurt anyone - let alone take someone's life.

"You don't have the right to attack someone else."

Sandra Peniamina’s sister Carnetra Potter (left) with family outside court
Sandra Peniamina’s sister Carnetra Potter (left) with family outside court

Women's Legal Service Queensland CEO Angela Lynch said she hoped the provocation defence would be reviewed as part of the government's commitment this week to criminalise coercive control.

"The terms of reference haven't been released yet but we would be hopeful that as part of that review that consideration is given to partial defences and their impacts to perpetrators of violence who may utilise the defence perhaps inappropriately," she said.

However Ms Lynch said it was also important that the defence wasn't removed for victims of violence who killed their abuser.

"There are a number of barriers to those domestic violence victims from accessing those defences," she said.

"We're absolutely thrilled (about the review), the Women's Legal Service has called for a review such as this for nine years so we're really pleased the government has stepped up and recognised the concerns that the community has been bringing forward with experience with the criminal justice system."

When asked about provocation defence, Attorney-General Shannon Fentiman said the State Government was willing to examine anything that would keep women safe.

"I think that's something we can try and look at in the work that we're doing with this task force and again, look at the barriers women face," she said.

Domestic and Family Violence Prevention Council co-chair Kay McGrath OAM said it was important victims felt supported.

"Victims and survivors need to know they have a voice and will be heard and supported," she said.

"Violence of any sort is unacceptable, and perpetrators will be held to account."

Sandra Peniamina
Sandra Peniamina

 

 

Originally published as 'Medieval' law that's setting DV offenders free

Sandra Peniamina
Sandra Peniamina


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