Partial Defence of Provocation: Non-violent Sexual Advances

Uncertainty over whether provocation caused by an unwanted homosexual advance will form the basis of a partial defence to murder may soon be resolved with the Sunshine Coast Daily reporting on 7 June 2012 that the Queensland Attorney-General, the Hon Jarrod Bleijie MP, had asked the Department of Justice and Attorney-General to brief him on the issue.  The Attorney-General was quoted as saying ‘the LNP supports, in principle, the concept that persons should not be able to rely on [provocation] simply because of a minor touching incident or unwanted sexual advance’.

Just prior to the 2011 State election campaign, the then Queensland Attorney-General in the Bligh Labor Government, the Hon Paul Lucas MP, announced a proposal to amend the partial defence of provocation contained in s 304 of the Queensland Criminal Code to ensure that it could not be used where the defendant has received an unwanted sexual advance from the deceased, unless there were exceptional circumstances.

Sentencing double jeopardy

In very broad terms, the principle of double jeopardy is said to protect a person from being twice placed in jeopardy of conviction or punishment for the same matter.  When applied in the context of sentencing, it refers to the anxiety and stress presumed to be involved in being re-sentenced.

The origin of the use of the phrase “double jeopardy” to describe the situation faced by a defendant when the Crown appeals against sentence is usually ascribed to the 1979 Federal Court decision in R v Tait (1979) 46 FLR 386 while the development of the common law principle in the Australian context is said to owe much to sentencing jurisprudence developed by the High Court: for an historical overview, see Director of Public Prosecutions v Karazisis [2010] VSCA 350.