Law reform plays a pivotal role in strengthening overall justice and efficiency within the framework of the legal system, but it also ensures that Australia’s fluctuating values are upheld and reflected within the law. Law reform refers to the process of examining, advocating and implementing adjustments to the current legal system. A society’s values express expectation of how power should be organised, exercised and controlled, and as these values change with time the law must change in accordance with them. Law reform regarding the defence of provocation, which carries gender bias and a victim-blaming culture, reflects changing values to a large extent. Additionally, the implementation of majority verdicts reflects changing values to a notable extent, prioritising the efficiency and delivery of justice within the legal system.
Over recent decades the operation of the partial defence of provocation has induced much debate. Such debates have led to its abolition in NSW Legislation, where Government and Law Commission bodies have argued that provocation has operated in a homophobic and gender biased way that is no longer reflective of community values and expectations of justice. Prior to law reform in June 2014 under Section 23 of the Crimes Act 1900 provocation was available to people who killed their partners out of jealous rage or took umbrage at a non-violent sexual advance. This reflected conservative values of the time, where patriarchal and homophobic ideals prevailed the rights of women and the LGBT community.
The reform was prompted by the case of R v Singh (2002), which saw the death of Manpreet Kaur who was fatally attacked by her husband after she told him that she had never loved him and loved another man. Singh was found guilty of manslaughter and charged with 8 years imprisonment after the jury accepted that he had been provoked by his wife. Following the pronounced verdict, the case reverberated throughout the public and the media and concerns surfaced about the legitimisation of domestic violence within NSW legislation, as demonstrated by the article “Finding reason for taking a life” (September 1 2012) (Sydney Morning Herald). Consequently, the laws on provocation were revisited and changes to the legislation were made through the Crimes Amendment (Provocation) Act 2014. The amendment significantly restricted defence of provocation laws so that it could not be used in situations where the provocation claimed was infidelity. Violence against women is heavily rejected regardless of its incentive, and in alignment with this the law has changed to uphold those social values.
Other important restrictions under the new defence include that a non-violent sexual advance can never constitute extreme provocation. This is regarded as an important inclusion in light of the historical abuse of the provocation defence in “gay panic” cases. Gay panic refers to the legal defence where the defendant claims that they acted in a violent state because of unwanted same-sex sexual advances. It requires the jury to agree that a person felt provoked by an unwanted homosexual pass and relies upon negative courtroom depictions of homosexual victims. Gay panic is predominately based around the notions of masculine social respect, as discussed in the paper “Provocation law, homosexual advances and male honour: Will NSW finally act?” (August 16 2012) (Western Sydney University). The original legislation was linked to a time when the notion of male social honour and its protection was very important and when a breach of that honour demanded a physical response. Since then, society no longer condones this characterisation of male violence and is widely supportive of gay rights, making the law reform appropriate to the shift in values.
Law reform regarding the defence of provocation in NSW addresses key issues surrounding the legitimisation of male violence against women and the inclusion of LGBT rights within the law. As Australians become more inclusively-minded, discriminative values have begun to filter out of society. In accordance with this societal shift, the law changes to better-encompass equality, abandoning conservative values and protecting the social groups within the population it governs. Inequalities that were formerly accepted have become unlawful, and the integrity of the individual drives the legal system in its operation. In contrast, some people believe these laws could lock out battered wives who kill their abusive husbands, as evidenced by the article “NSW legislation will limit ‘defence of provocation’ for murder charges” (March 5 2014) (ABC). However the amendment strikes a careful and appropriate balance between restricting the defence and leaving it available for victims of extreme provocation, including victims of long term abuse. Overall, in alignment with Australia’s changing values, specifically regarding equality of women and the LGBT community, the law has been reformed to embody the protection of female victims of domestic violence and the recognition of gay rights, reflecting changing values to a large extent.
Another law reform that has been applied to reflect Australia’s values is the introduction of majority verdicts under the Jury Amendment (Verdicts) Act 2006. Majority verdicts refers to a verdict achieved by all but one or two members of the jury. Prior to reform, unanimous jury verdicts were considered a cornerstone of the common law system, having been in place since the 14th century. However, intensifying societal values of efficiency and protection have overridden tradition in the decision to implement majority verdicts.
The primary argument in favour of majority verdicts is that of hung juries. The term “hung jury” refers to a jury that fails to agree on a verdict. In the instance of a hung jury, the case must be re-trialled, consuming court time and money. A retrial for the court is inconvenient in that it is expensive and time costly, impeding on societal expectations of efficiency. If the prevalence of hung juries and aborted trials in NSW were halved, the NSW District Court would be able to dispose of an additional 44 trial cases a year, and achieve justice at a quicker rate, as found in a paper published by the NSW Bureau of Crime Statistics and Research. A delayed trial also means that criminal defendants could be held indefinitely under a cloud of unproven criminal accusations, or offenders are not charged or incarcerated. Majority verdicts greatly reduces these possibilities by minimising the chances of a hung jury. This law reform adopts societal values in that it achieves justice quicker, increases the amount of trials conducted, and protects society against dangerous offenders. This is demonstrated by the case of R v Xie (2017), where Robert Xie was charged with the murder of five members of his family-in-law, eight years after he bludgeoned them to death. After four trials, two aborted and one hung, Xie was finally found guilty by a majority verdict. Without the 11-1 verdict, Xie would have remained uncharged and out of remand. Additionally, society values the protection of its victims. A retrial as caused by a hung jury can be distressing to a witness in that it requires them to relive the offence, and this can be particularly damaging in cases such as murder or sexual assault which are two of the most common indictable offences.
However, the law reform has also been criticised for comprising the criminal standard of proof “beyond reasonable doubt” and misrepresenting the community, as discussed in “Majority verdicts: a poor judgement” (November 10 2005) (Sydney Morning Herald). Traditionally, unanimity required each juror to be convinced of the guilt of the accused, therefore granting the conviction with more credibility. Moreover, if a jury is used to represent a cross-section of the community, then the requirement of unanimity can provide the public with confidence in the legal system. By having the jurors assess the evidence, deliberate the issues and achieve a consensus, this conveys to the public that the verdict reached is a considered one.
With all of this considered, the legislation does stipulate that a majority verdict will not be permitted unless juries have first employed considerable effort to come to a unanimous verdict, and the court is satisfied that it is unlikely the jurors will reach an agreement. Majority verdicts reflect enhancing societal expectations of efficiency and protection, as hung juries drain resources in long trials and pose a failure to reach a quicker conviction, as well as causing further anguish to victims. While it can be argued that majority verdicts hinders the achievement of justice beyond reasonable doubt, by efficiently remanding guilty offenders, it reflects societal values and expectations of justice to a significant extent.
In conclusion, a conjunctional relationship between law and society is necessary for the law to keep pace with societal evolvement, particularly regarding the embracement of progressive ideologies, the representation of all social groups within its jurisdiction, the protection of society from offenders and the efficient delivery of justice. The abolishment of defence of provocation, which carries gender bias and a victim-blaming culture, and the implementation of majority verdicts, which ensures an efficient trial that is considerate to both the victims and the witnesses, both exhibit law reforms encouraged by changing social values.