Outrage as sick system fails another victim
Outraged domestic violence campaigners have called for an overhaul of the state's "outdated" provocation laws after the High Court quashed the murder conviction of a man who violently stabbed and bludgeoned his wife to death in front of their terrified children.
Killer dad Arona Peniamina was yesterday 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.
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 believed his wife was having an affair.
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.
The High Court found the judge had wrongly instructed the jury about the elements required to allow the defence in Peniamina's case but family violence stakeholders say the outdated provocation laws should not be an option open to offenders at all.
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 stabbed with a knife and bludgeoned with a fence bollard until she died.
The High Court's majority verdict reached by three of the five judges sparked a wave of fresh calls for Queensland's provocation laws to be revised, with experts saying the laws are out of touch and out of line with community expectations.
Women's Legal Service Queensland CEO Angela Lynch AM said it was time the legislation was reviewed.
"It is clearly inadequate that a man who stabs his wife more than 20 times and then kills her with a bollard that he's still able to rely on this part defence and it's open to him to rely on this," she said.
"It really does point to some problem with the drafting of this legislation which requires it to be relooked at."
"I think that one of the reasons we're in favour of a coercive control offence is it would have the educative value in the legal profession and judiciary so people ultimately making these decision would have a better understanding of dynamics of violence."
Leading criminal lawyer and immediate past president of the Queensland Law Society Bill Potts said while Peniamina's specific case was one for a jury to decide, the laws needed to be subject to a robust debate by stakeholders.
"Provocation as a partial defence exists because the courts and the public recognise that sometimes people lose the power of self-control because they are offered some form of insult or injury, however the defence should not be available to enable jealous and enraged spouses from killing their spouse simply to assuage their pride," he said.
"I think there is a clear need for there to be a community debate and for the law reform commission and for domestic violence experts to weigh in to ensure that our laws keep pace with our knowledge and the increasing public revulsion at behaviour like this."
Domestic and Family Violence Prevention Council co-chair Kay McGrath OAM said Australia's domestic violence statistics were "outrageous and unacceptable" and the community needed to work together to prevent further lives from being lost.
"At least one woman a week is murdered in Australia as a result of domestic and family violence and as many as 10 women a day are hospitalised for injuries inflicted by a current or former partner or spouse," she said.
"There is growing community awareness and understanding of the complexities that accompany domestic and family violence in Queensland.
"The DFV Prevention Council is helping drive awareness and education, and is acutely aware of the fact that with increased community understanding comes an expectation that systems, procedures and laws keep pace."
Under new laws passed in 2011, Queensland's provocation laws were changed to stop offenders who are provoked by verbal insults from using the defence, except under exceptional circumstances.
Only three years ago, the archaic "gay panic" defence was removed from the Queensland legislation which had allowed defendants to reduce criminal responsibility by claiming provocation due to unwanted sexual advances.
Service leader of the Brisbane Domestic Violence Services Kelly-Ann Tansley said the legislation needed to be continually reviewed to keep up with the times.
"The Brisbane Domestic Violence Service obviously has concerns that there are parts of the legislation in the Queensland justice system that is enabling abusive partners to justify violent acts under defence of provocation," she said.
"We have been in communication with the government around all parts of the criminal code and legislation that relate or impact on the accountability of perpetrators in acts of violence and abuse and it appears that this is another part of the legislation that needs review certainly to keep up with community and sector expectations of perpetrator accountability."
Attorney-General Shannon Fentiman said she would take the advice of legal experts to "ensure Queensland legislation is robust".
"The loss of life due to domestic and family violence is tragic and is never acceptable," she said.
Shadow Attorney-General Tim Nichols said the legislation was a controversial issue that divided opinion and it was important to note the law recognised when a battered spouse killed their abuser.
"Provocation as a partial defence to murder is complicated and that's shown by the wide range of views by the community and amongst lawyers themselves," he said.
"So any consideration of removing provocation defence would need to take into account a multitude of issues.
"It's important to remember that it doesn't forgive a serious violent crime but it does recognise traumatic events that may lead up to it, particularly in the case of domestic violence."
Peniamina will face a retrial at a date to be set.
HELP IS AT HAND
The Prevention Council is working to embed a zero-tolerance approach to domestic and family violence within our communities and across Queensland.
• DVConnect Womensline 1800 811 811 - for free, confidential crisis counselling 24/7, for all people identifying as female, regardless of ethnicity, religion, age or disability.
• DVConnect Mensline 1800 600 636 - for free, confidential crisis counselling 9am to midnight, for all people identifying as male, regardless of ethnicity, religion, age or disability.
• 1800RESPECT 1800 737 732 - National sexual assault and domestic and family violence 24/7 helpline for information, counselling and support.
• qld.gov.au/domesticviolence - for information, services and support.
Originally published as Outrage as sick system fails another victim