THE LEGAL LIE OF PROVOCATION
Article published in the Age 19/8/98
It's four years since I chose Parliamentary
Question Time to ask the then Labor Attorney-General, Michael Lavarch,
to condemn the anti-female bias of the law of provocation. Now a
Federal government report endorsed by Coalition Justice Minister,
Amanda Vanstone, who courageously describes provocation "as an excuse
for the murder of women", has finally emerged.
Fatal Offences Against
the Person is unequivocal in declaring that provocation "was designed
for male patterns of aggression...discriminates against women...(and)....operates
unjustly in a modern society". What remains to be answered is why a
defence which had its origins in the male violence of drunken brawls
and duels has, in modernity, been so readily offered to men who
kill their ex-partners, and whether the patriarchal assumptions
which drive judges in these cases will disappear with the proposed
abolition of the law.
My own struggle against the law began
on August 26, 1987 when the crackling voice of my brother announced
over the phone that our 25 year old sister, Vicki, had been stabbed
by her ex-boyfriend and that I should go straight to the Melbourne
Hospital. In my recently released book, Cleary Independent, I describe
the aftermath as follows:
When the surgeon arrived, sister by his side, at the waiting
room door, there was no escaping what had happened. The words, "I'm
sorry we couldn't stop the bleeding" were virtually redundant, lost
somewhere in the mayhem. There was nowhere to turn. God was irrelevant.
Vicki hadn't died in an accident brought about by hers or someone
else's carelessness. Her life had been violently taken from her. "She'll be with us, Mum, she'll
be with us," I said, cuddling and stroking a mother recoiling
at the thought that the life of the child she'd brought into the
world could be stolen by some other mother's son.
Outside there were buds on the
trees and everywhere spring was preparing to emerge from the dark
of winter. People were walking and talking, and the traffic gently
continued to crawl towards the suburbs, oblivious to this mysterious
act of savagery. No Angelus bell rang out to announce the passing
of one of God's children. In the newsrooms they were preparing
to show the aftermath, bloodstains on the car and pavement, and
the blurred image of Peter Raymond Keogh whisked out of Russell
Street. "Footballer's sister stabbed to death," they said. But
they didn't understand. Ron and Lorna had lost their soul..
A little while before that phone call
I'd rung Vicki to ask if everything was all right.
"Don't worry, he won't do anything," she'd said. I live to regret
that someone hadn't told me about the murderer's documented 27 year
history of violence against women.
The girl Peter Keogh stabbed to death.
As with every other woman who dies in such circumstances
Vicki Cleary had every right to expect her killer to be
convicted of murder.
Maybe some day there'll be an apology on behalf of the
judiciary, the jury and the state. Vicki deserves
Keogh was armed with a carving knife when he emerged from his hiding
spot and confronted Vicki outside the kindergarten where she worked
at 8.00 am, four months after they'd separated, Justice George Hampel
granted a defence of provocation because, he told the jury:....it
is said that such a state existed where there were acts and circumstances
existing for some time beforehand which, in culmination,.. produced
a loss of self-control because of the trigger comment that occurred
that day by the deceased lady. The 'trigger comment' was an exclamation
allegedly uttered by my sister upon being confronted at the driver's
side door of her car.
The circumstances were her refusal to return
to a violent relationship. An earlier appearance at the kindergarten
by the aggressive Keogh was described by the judge as:...part
of a realistic situation...(where)....one person is intense about
seeing the other. After my family expressed its outrage
at the "not guilty of murder, guilty of manslaughter" verdict, a
head-line "Family Fury at Sentence" appeared above a tabloid story.
The truth was that although Peter Keogh was sentenced to a mere
three and a half years gaol, it was the granting of a defence of
provocation by George Hampel, and the jury's acquiescence which
outraged us. To accept a defence of provocation and the absurd line
that a hypothetical ordinary man, even one with the alleged depression
of the killer, might have done what this man did, was to cast my
sister and, by definition, any woman leaving a man, as provocateur
Despite our enshrining in law the right
to separate and divorce, many courts continue to act barbarically
when they sit in judgement on violent men who murder the women who
flee them. And as long as the media run headlines such as, "Love
pulls the trigger", or "He did it out of love", and judges recite
homilies such as "jealousy is the rage of man, and adultery is
the highest invasion of property" (R v Mawgridge) to account
for these acts of revenge, they will remain implicated in the culture
of violence against women. Witness, Giuseppe Piccolo, unwittingly
captured the ideology which pervades so many courts when he said:
The lady at that stage was screaming and the male... he had
his hand over her mouth,. it looked like he was punching her .
I didn't hear any words . It sort of looked like they were just
having an argument .So I just assumed he was beating her up.
The manslaughter verdicts following the stabbing murder of the
school girl Zerrin Dincer by her Turkish father in 1981 and the
1987 shot-gun murder of Christine Boyce and stabbing of Vicki Cleary
were but the tip of the iceberg. Prior to Christmas 1996 the murder
of two women and the two children of another woman by the men in
their lives passed almost without notice.
Had the men chosen a court
appearance rather than suicide it's a fair bet a defence of provocation
would have found its way into proceedings. While this report argues that the culpability
of a killer convicted under provocation is often no less than one
convicted of murder, and that therefore provocation has no real
place in the criminal code, it is silent on why Judges allow a partial
defence in cases such as my sister's.
In suggesting that once freed
from 'provocation' Judges will be able to address the issue of culpability
in sentencing, the report may well leave the deep-seated assumption
of woman as provocateur and chattel, an assumption which underpins
many of the pronouncements of our learned judiciary, well entrenched. Until the legal profession, the media
and the bloke down the pub confront this assumption, the renovated
law will simply camouflage the injustice and continue to demean
those ordinary men who would never dream that estrangement might
be an excuse for killing a woman, or that men kill out of love.
Justice George Hampel, smiling
umpire in wig and gown, reached the Supreme Court Bench via a path
different from the one trodden by Ned Kelly's enemy, Judge Redmond
Born in Warsaw, Hampel arrived
in Australia shortly after the War where he was educated at Haileybury
College and Melbourne High. As with the Irish Cleary brothers
90 years earlier, it was an act of genocide which drove Hampel`s
Jewish parents from their native land. In 1878 the Loyalist Barry
wore the black cap of the hanging judge as comfortably as Hampel
a century later wore the halo of compassion.
'He's no hanging judge, always
looks after the accused. I was hoping we'd get someone else', Sergeant
John Hill had confided as we sat waiting in the foyer of the Supreme
Court for the commencement of the trial, R. v. Keogh. Hill was from
City West. I knew nothing about him personally but was aware
of the reputation of police who worked at City West.'If you get into trouble in
town the last place you want to end up was the City West Station',
I'd heard the local Coburg toughs say when I was kid.
Following the charging of
Hill and a number of other police officers by the Director of Public
Prosecutions, Bernard Bongiorno, over the 1987 shooting of
'police suspect' Graeme Jensen, Hill committed suicide. It was commonly
accepted that the killing of Jensen, who had some questionable invitees
on his dinner party list, had precipitated the callous revenge murders
of Police constables Tynan and Eyre in Walsh Street, South Yarra
a few weeks later. Seated there outside Justice George Hampel's
court I could never have imagined the sequence of events that would
eventually engulf this straight talking copper and those close to
Unlike the father of the Gladys
Hosking about whom Ron Cleary told tales all those years ago, we'd
come to the court to honour a sister, not hang a killer, so I had
mixed feelings about Hill's thoughts as to the disposition of Justice
In 1942 Hosking's grieving father had told the press the
only thing right for the American GI Eddie Leonski, the killer of
his 'beautiful daughter', was hanging. It was different in my world.The toughs said the courts
and the police were on the other side and dead against them. 'Anti-working
class agents of the State', was what they meant. Hanging wasn't
on the agenda.When Hill whispered, 'You
know, the camera was running before the police interview with Keogh
began. He's talkin` about having no memory of what happened', I
sensed the impending crisis. What followed was just as I'd scripted
for a great couple of weeks. I'll miss you something terrible
but I'll be with you in spirit.I
hope you work everything out in New Zealand.........
Don't be too cruel to poor Ross! I hope the night is
a real success anyway.Have
a good flight ........ make the most of the break....I can't
tell you enough how happy I've been. It's a great feeling. I'll miss you but I'll keep in touch. All
my love Vicki xx"The
final letter. Left under the windscreen of her friend's
Yeah, he'll say he lost control
and can't remember anything and that it was all just a haze. It’s
a lie’, Hill continued.'Really', I replied forlornly,
convinced that the spectre of a defence of provocation was now a
reality.'It doesn't matter. A judge
would never allow the defence to offer provocation to a jury in
a case such as this' a female solicitor friend had said. I wasn't
After all, the judicial bench had never been described
as a "bolshie" retreat or a haven for radical feminists. Justices Vincent and Nicholson
were known to be well disposed towards the the rights of women,
but as we were to discover when one of their worships began to pontificate
on why it was that men thought 'no' to sex actually meant 'yes',
and another on why a 'bit of rougher than usual handling' as a prelude
to sex was understandable, it could be an arcane world.
Without the devastating circumstances
of Wednesday August 26th 1987 I would never have come across Justice
Hampel, Sergeant John Hill or the inside of the Supreme Court.
When I was called from my
class at Avondale High school to answer an urgent telephone call,
I couldn't have begun to imagine what I was about to hear.'It's Paul here, your brother
Paul. There's been an accident with Vicki', were the first words
to come my way.'A car accident? What do you
mean? Where?' I asked.'No, that bastard's stabbed
her. She's in the Royal Melbourne'.I could barely comprehend
the words.'He's stabbed my sister',
I announced to a vacant room.
When I arrived at the hospital,
the whole family, with the exception of my father who was frantically
trying to vacate his butcher shop in Broadford, was assembled in
a tiny, barren, lino-floored room.'She was so brave', my mother
said in an heroic attempt to immortalise a daughter who'd bravely
told the ambulance men, 'it hurts' as they delicately placed her
on the stretcher that would carry her to her last resting place,
the Royal Melbourne Hospital.For my part I struggled to
believe it had all happened.
My mind turned to this violent, cruel
man. I wanted to kill him. Yet for some reason he and revenge seemed
irrelevant. It was only my sister who mattered. For two hours we
waited, occupying the time by celebrating her life in the hope she'd
triumph over the violence inflicted upon it. Only 25 years of age,
a tiny girl, so kind, our poor darling Vicki. Now she was fighting
for her life, another victim of one man's cowardly act of violence.'She's tough, she'll survive',
I said to my sister Donna. I believed it. I prayed that someone
would arrive at the door, smile and tell us everything was fine.Only two and a half weeks
earlier I'd seen Vicki at Jack Spencer's 60th birthday party in
Free of a relationship that was never right, she
was so happy. I was glad she'd left the bloke. I didn't trust him,
didn't like the tattoos and the way he ground his teeth and looked
sideways when the eyes met. He was lumpen proletariat,
and although I was no snob I sensed his had been the ugly world
of petty criminality and cowardly acts of violence with billiard
cues and broken glasses in dingy smoke filled bars.
I presumed that only the tattoos had survived his miserable youth,
and as events moved to their tragic finale had no idea of the evil
underbelly that lay hidden from my family's gaze.The memory of the day a strutting
tough had tried to king hit me on the beach at Rosebud in the summer
of 1967 had never quite gone away. He came from the Housing Commission
flats in East Coburg and fancied himself. After he missed I grabbed
him in a head lock causing him to squeal and squawk like a stuck
pig. I was fit and strong from playing football whereas beneath
the haughty exterior he was soft and languid.'Not so tough, really, are
you?', I thought as I waited for a peace-maker to take control.
'Look, I don't want to punch this bloke, can someone just tell him
to settle down', I implored, tightening my bicep against his pulsating
Eventually the 'elders' brought it to a halt but the sniper
was smarting inside. The blokes who could box were to be avoided
at all cost but the king-hit merchants invariably carried a coward's
streak. Only when he killed Vicki did we discover the depth of Keogh's
Episode Two - page 206-
On June 6, Vicki had basked
in the glory of her brother's 200th VFA game and our 105-point defeat
of top side Frankston at the City Oval, Coburg. As I rode
the shoulders of a couple of team-mates, I caught sight of her cheeky
smile, a beacon within the Cleary clan, on the terraces to the right
of the players' race. In the Social Club afterwards she helped
blow out the candles on the celebratory cake, skylarked for the
camera and regaled the audience with stories about her big brother,
the 'VFA Champion'. There and then it seemed her happiness
knew no bounds.
'Chris, wasn't it wonderful
to see Vicki so happy? It's as if her life has just begun',
I'd said to my wife the next day.'Yes, but I think you should
ring her, Phil. During the game she told me that Keogh was
refusing to return some of her things', she replied, stopping me
in my tracks.'Vicki, what's going on with
Keogh? Chris tells me there's a problem', I said when I rang
her on Wednesday evening. 'He's playing up over a few
crystal glasses which belong to me and I have to get Nanna's rings
off him but otherwise there's not a problem', she'd told me.
there was no property dispute or children to aggravate the circumstances
there appeared little to worry about.'If there's any trouble, just
tell me and I'll go and see him', I said.'Phil don't worry, Peter's
not going to do anything to me', she replied in the bouncy easygoing
manner which for the last months of her life hid the terror. When the surgeon arrived,
Sister by his side, at the door, there was no avoiding what had
happened. The words, 'I'm sorry, we couldn't stop the bleeding',
were virtually redundant, lost somewhere in the mayhem. There was
nowhere to turn. God was irrelevant. Vicki hadn't died in an accident
brought about by hers or somebody else's carelessness. Her life
had been violently taken from her.'She'll be with us, Mum, she's
still with us', I said, cuddling and stroking a mother recoiling
at the thought that the life of the child she'd brought to the world
could be stolen by another mother's son. Outside, there were buds
on the trees and everywhere spring was preparing to emerge from
the dark of winter.
People were walking and talking, and the traffic
gently continued to crawl towards the suburbs, oblivious to this
mysterious act of savagery. No Angelus bell rang out to announce
the passing of one of God's children. In the newsrooms they were
preparing to show the aftermath, blood stains on the car and pavement,
and the blurred image of Peter Raymond Keogh whisked out of Russell
Street. 'Footballer's sister stabbed to death', they said. But they
didn't understand. Ron and Lorna had lost their soul. I tried to imagine how it
was that anyone could do what this man had done. For a moment I
felt sorry for him, sorry he'd damaged his and so many other people's
lives. Sorry too was I that life, and love in all its vicissitudes,
should produce such pathetic figures as Peter Keogh, and that others
should suffer as a result. Vicki's suffering ended, her young body
soaked in blood on an impersonal operating table, left on her own
for the second time in her short life, in a plain grey hospital.
The suffering of those close
to her would go on but once the State had its say and the real history
of the killer emerged outrage would fill the void left by the dissipation
of compassion. For although they say verdicts ring out in a court
of law, the words 'Not guilty to murder' had no such ring in the
trial, R v. Keogh. A reprieve for the accused and a death
sentence for the family, the words merely fell from the foreman's
mouth. Neat, proper and methodical,
he reminded me of Prime Minister John Howard. The jury under his
guidance, seemed, like the men who watched Vicki's final moments,
not to have understand the reality of the Killer's actions. In their
mind's eye the Jurors imagined a woman whose actions had somehow
provoked a man to such an extent he'd lost self control and taken
to her with a carving knife, as any ordinary man with his alleged
characteristics - depression, not predilection for violence - might
have done 'in the circumstances'...
'But the provocation issue does arise and, because it arises,
it is for you also to say whether the prosecution has disproved
provocation, in other words, proved that there was no provocation
beyond reasonable doubtYou can have that sort of situation arise from just a single,
provocative act which causes a person to lose self control.It can arise because of a series of acts and events which
build up a situation of pressure where a person, at the time of
committing the killing, is acting out of control. Usually, and this is the case here, it is said that such a
state existed where there were acts and circumstances existing
for some time beforehand which, in culmination, their cumulative
effect produced a loss of self control because of the trigger
comment that occurred that day by the deceased lady. That sort of situation, the law says, is capable of
raising a situation of provocation….
.Did all that is relied on
here, namely the build up during the previous couple of months
right up to the evening and the morning before and the words uttered,
the whole situation, did all that cause him to lose self control
and did he commit the act which killed her in such a state? So the question you ask yourselves is, has the Crown proved
beyond reasonable doubt if he did lose self control that the conduct
was such that it would not cause an ordinary man with his characteristics
to lose his self control, or that having lost self control, an
ordinary man with his characteristics would not react like this?' Justice Hampel advised the jury when the time arose to explore
the legal intricacies associated with the charge of murder against
It was classic a priori reasoning.
Men kill because women, no matter what the circumstances, provoke
them - it's self evident!
The truth was that Vicki could
never prove otherwise. I should therefore not have been surprised
that, when countenancing a defence of provocation, Justice Hampel
would use expressions such as "acts and circumstances existing
for some time". It just didn't matter that they were not
of the dead girl's making. She should not have flown the nest!
The circumstances were, that
four months after the ending of a relationship, an armed man had
gone after his ex-girlfriend and fatally invaded her private space.
To conclude that one woman's quiet, gentle and unostentatious pursuit
of personal freedom should qualify as an 'act' which might cause
an ordinary man to do what Peter Keogh did, was to plunge the society
into moral barbarism.
When Nicole Kidman stepped
out as Isabelle in Jane Campion's film adaptation of the Henry James
novel 'The Portrait of a Lady', her character was eulogised
as 'a romantic with a strong sense of independence'. When Vicki
Cleary sought romance and independence free of the clutches of a
pathological bully, a century after James' Isabelle, she was cast
as a working class femme fatale.
The words, 'That sort of
situation, the law says, is capable of raising a situation of provocation', as spoken on February 13th 1989 by Justice Hampel spun in and around
my head unresolved for the whole morning.
'That sort of situation?'
'Girl leaves man, is that
what you mean, Your Honour? If not, could you be more specific,
Your Honour, as to the particularities of the situation. You know,
what kind of situation?'
'...the law says, is capable
of raising a situation of provocation?.........'
'No, surely the law in all
its wisdom has a view as to the comparative capacity of 'a situation'
to produce aberrant outcomes. Surely the law has a view of this.
No, Justice Hampel, your conclusion is derived from a false premise.
There were no circumstances, only a deeply held and prejudicial
view as to the responsibility of a woman. No, Justice Hampel, you
have an obligation to affirm humanity', I growled, laden with anger
at the lack of precision in the judge's argument.
The killer had left the `girl
he loved` dying in the gutter, then proceeded to calm his nerves
with a cup of coffee a block away at the Moreland Auction rooms,
entering through a back door which adjoined a laneway.
'It's an impressive sale',
he'd remarked to Graham Jones, his eyes darting back and forth through
the long rectangular room. A cardboard box tucked under the arm,
Keogh hailed a cab and by 9.00am was safely ensconced in the Reservoir
home of his drinking mate, Kevin Chamberlain, where he was immediately
on the phone in search of solicitor, Robert Digala.
While the killer considered
the next move, in a well planned operation, Pat Cole, wife of Chamberlain,
prepared to leave work for a 10.00am rendezvous with Keogh on the
corner of Hughes Parade, Reservoir. From here she would chaperone
the killer to the Franklin Street offices of Mr Digala, where, after
a careful two and a half hour examination of the predicament, he'd
make the short trip to Russell Street. At the Royal Melbourne Institute
of Technology Keogh's confidante wished him well and gently waved
him goodbye. Cole's generous, sympathetic account of a distraught,
traumatized killer pining for the girl he loved, was manna from
heaven for defence Barrister John Champion.
'Mrs Cole or is it Miss? Oh
Miss! Miss Cole you've said he was depressed about the split......he
kept expressing to you the sort of things like, 'what have I done?
What have I done? I don't know what's happening',.......it was like
talking to a three year old zombie....he became quite emotional
as you drove past the hospital....he loved Vicki.....' so went Champion's
bizarre monologue, on and on, interspersed with a reassuring nod
of the head and an affirming 'yes' from Miss Cole.
It was a far cry from the
terse, 'Give him the arse, he's a shithead' she'd delivered when
Vicki arrived on Mrs Cole's doorstep seeking refuge from Keogh two
year's earlier. Nor did the description of Keogh as a man incapable
of running away tally with his actions during the previous hour
he'd spent with her husband.
Hadn't the killer gone straight
for the phone the moment he arrived at the Chamberlains? And hadn't
he coolly shoved his camouflage into a box, no doubt carefully stationed
in advance, outside the back door of the Moreland Auction rooms,
only minutes after killing Vicki? And what of Chamberlain's court
room revelation as to Keogh's threat, made at Cramer's Hotel weeks
earlier, to "neck Vicki if ... '?
to be continued