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Parker v R [1963] HCA 14

This case expanded the availability of the provocation defence in homicide cases. Kelly was alleged by Parker to play close attention to Parker’s wife, Joan. Subsequently, Kelly rode away on a bicycle with Joan perched on the back of it. Some time later Parker pursued Kelly in a motor vehicle and killed him. Parker was found guilty of murder. He eventually appealed the conviction to the High Court on the basis that Kelly’s attention to his wife was sufficient to provoke the ordinary man to kill and therefore that he should be found guilty of manslaughter. The High Court considered the meaning of ‘sudden’ provocation ‘in the heat of passion’, and allowed leave to appeal. The case underlined the role of sexual jealousy in the provocation defence, which has been claimed, on many subsequent occasions, primarily by men in response to charges of murder for killing their female partners.

Commentary author

Heather Douglas is a Professor in the T C Beirne School of Law at the University of Queensland. Previously, Heather was a part-time commissioner with the Queensland Law Reform Commission. Her research interests lie in the relationship between Indigenous people and the criminal law and the way the criminal law impacts on and constructs women.

Judgment author

Adrian Howe was, until recently, an Associate Professor at RMIT in Melbourne. She is a criminologist and has written widely on women and crime. Many of her books are now classics in the field of feminist criminology.

R v Taikato [1996] HCA 28

A woman was convicted and fined $400 under the Crimes Act 1900 (NSW), having been found by police in a Sydney suburban street to be carrying a pressurised canister of formaldehyde in her handbag. It was accepted that she carried the canister so that she could defend herself if someone attacked her. However, the High Court found that the woman's purpose was not lawful because the existence of a right to self defence cannot be determined until after the fact of a particular attack or threatened attack, and there was no attack or threat of attack when she was carrying the canister.

Commentary author

Julie Stubbs is a Professor in the Faculty of Law at the University of New South Wales. Previously she was a senior researcher with the NSW Bureau of Crime Statistics and Research. Her research interests include domestic violence and legal responses to violence against women.

Judgment authors

Penny Crofts is a Senior Lecturer in the Faculty of Law, University of Technology, Sydney. Penny researches in criminal law, focusing on the regulation of the sex industry in NSW. Her research has informed parliamentary debates and influenced council planning policies.

Isabella Alexander is an Associate Professor at the Faculty of Law, University of Technology, Sydney. Her research interests lie mainly in legal history.

PGA v R [2012] HCA 21

Mr P raped his wife in 1963. Had she complained to authorities in South Australia at that time, it is unlikely that Mr P would have been prosecuted because it was then widely believed that the common law did not recognise ‘rape in marriage’. Certainly, the criminal codes in operation in other Australian states during the 1960s defined rape as non-consensual intercourse between a man and a ‘woman not his wife’. In PGA v R (2012), the High Court was asked to determine whether rape in marriage was an offence under the common law of Australia in 1963. If it found that it was, Mr P would be liable to prosecution in 2012 for his 1963 conduct, arguably subjecting him to a different legal standard than the one likely to have been applied in the years immediately following his alleged offending. On the other hand, if the High Court found that the common law offered spousal rape immunity in 1963, it would be explicitly acknowledging that legal rules in that period authorised married women's subjection and sexual violation. The Court held by majority that spousal rape immunity was not part of the common law of Australia in 1963. Our dissenting feminist judgment acknowledges that legal rules in the relevant period authorized married women's subjection and sexual violation. To restate the law in other terms now would obviate the experiences of married women who were denied legal protection against marital rape in the 1930s-1970s, as well as the influence of feminist law reform in the 1970s and 80s.

Commentary author

Ngaire Naffine is a Professor of Law at the University of Adelaide. Ngaire’s research interests include legal theory, criminal law, medical law and feminist theory.

Judgment author

Mary Heath is an Associate Professor at the Law School, Flinders University and has worked with community organisations in relation to rape law reform. Her research interests include feminist and postcolonial theories of the state, teaching strategies for sensitive topics and the wellbeing of bisexual and lesbian women.

Wendy Larcombe is an Associate Professor  in the Melbourne Law School, University of Melbourne. Wendy conducts research in the fields of law, gender and sexuality. She has particular research interests in issues of subjectivity, autonomy and consent in the regulation of sexual/domestic violence and of women's health care.