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 that much.

Although Peter 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 and chattel.

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.

Philip Cleary

 

 

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 Barry. 

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 Vicki Cleary.

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 Hampel.

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 it.

 

Dear Chris, Thank-you  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 car.

 

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 so sure.

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 Port Melbourne.

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.

Regrettably, 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 cranium.

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 coward's streak.

 

Episode Two - page 206- Cleary Independent

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.

Given 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 Peter Keogh.

 

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