Partial Defense of Provocation - Research Paper Example

Partial Defense of provocation Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Name Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Course Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Lecture Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 30th March, 2013. Introduction Until the year 1955, when one was charged with murder in New South Wales one was sentenced to death and this was clearly stipulated the Crimes Act 1900. The defense of provocation came into place so as to lessen the harsh effect that the law had in instances when the defendant had been forced by circumstances to act in a certain way or portray certain characteristics. This was stipulated with the first one in line being the partial defense and this was clearly defined, the other was the diminished responsibility and it was put in place in the year 1974 based on the ruling that have been made in several common law cases. This research article sets out to discuss whether partial defense of provocation be abolished in New South Wales and this will supported by the used of various case laws. Discussion Over the decades there has been a lot of significant debate that surrounds the full operation and functioning of the partial defense of provocation. This debate has eventually led to the abolition of the law in various international as well as Australian jurisdictions (Clough 2010, pp. 79). NSW have not reacted to the debates and it had retained is a concept. There has been a lot of outcry from the society that in certain circumstances the defendant is now being able to get away with mistakes they have committed since they are permitting themselves to provocation since they are well aware of the fact that with a lot of viable defense in instances when they are charged the case will be ruled in their favor (Coroners and Justice Act 2009). Based on my own understanding and review of various cases provocations ought to be abolished. There are two major reasons why it ought to be abolished with one of them being based on the fact that the defendant in a way creates room for victim blaming and in most instances it is not adhering to the expectations of the community in the forms of justice (Crimes (Homicide) Act 2005). In addition, in the olden times provocation was used with the aim of mitigating the harsh consequences that are the life ruling policies as well as the mandatory capital policies and neither of these applies when a person is being sentenced for a murder case in NSW. Clearly the importance of removing the cases brought before them from murder to manslaughter seems to be questionable. The first major concern relates to the applicability of provocation is based on the fact that if the culpability of cases that have failed to be categories under the category can be recognized and at the same time addressed through the use of partial defense. Based on the fact that some people tend to have the intention of killing or at times lead to very serious injuries to others, this case seems not to offer a clear way of dealing with them and most of them are given warranties that are less than murder cases (Crimes (Sentencing Procedures Act) 1999 (NSW)). Thus the corridors of justice ought to recognize instances in which killing was done intentionally and this ought not to be seen as a way of partially legitimizing the use of lethal force. Through the abolition of provocation, the various levels of culpability that are closely connected with the intention could in a way be addressed during the sentencing and this seems to be the case in states such as in New Zealand, Victoria, Western Australia and Tasmania. Another concern that relates to the abolition of provocation is based on the fact that it at times creates room for the victim can be held responsible for his own death (Fitz-Gibbon & Pickering 2012, p. 160). When viewed in relation to the other comparable jurisdiction, the nature of provocation enables the actions or at times words of the victim to be tried. This seems to be a great problem, based on the fact that that the victim at times is unable to offer opposing statements form what have been presented by the offender, in most of the cases that have been presented before the judges between 2005 and 2012, only the offender and the victim were there when the crime occurred and this in most occurrences allowed the offender description to be relatively opposed (Fitz-Gibbon 2012a, p. 195). In addition, after a clear examination of the various relevant cases, out of seventeenth cases where a certainty of manslaughter by basis of provocation was granted, there was an incident where there was accrual physical violence by the victim and this had in a way provoked the offender in using lethal violence in about nine of the cases. On the other cases there was a citation of non violent confrontation as has been the provocation that had led the offender to lose his self control and attack the victim (Fitz-Gibbon 2012b, p. 160). The acceptance of provocation in some cases and the succeeding categorization of the offenses are being less to murder, seems to be contradicting to the society’s expectations of the correct human behavior. This seemed to be the case in cases where the lethal force was used as a result of the intimate partner's response in various verbal allegations of being promiscuous or at times during separation, this is seen in Singh v R [2012] NSWSC 637 (hereinafter Singh)1, and R v Hamoui [no 4] [2005] NSWSC 279 2and previously in Regina v Stevens 120081 NSWSC 1370 (hereinafter Stevens)3. In its current state, provocation seems to be a key concern since it is viewed as a way that is used to complicate the law of homicide more in NSW beyond the clear knowledge of the members of the jury and also members of the justice system (Ministry of Justice 2009). Various people are of the view that the present condition of provocation seems to be too complicated and most of them even doubt whether the people who are supposed to offer justice can be able to adequately apply and comprehend the various aspects that are intertwined in it (Tyson 2011). The existing complication that exists in the law of provocation plays a great emphasis on the urgent need to reform and simplify the law. This is mainly based on whether there is a need to retain the defense, without the simplification of the current law. It is a tedious work for the juries to be able to comprehend and understand all the nuances of the offense, and eventually the verdict of the jury was mainly based upon the core elements of partial defense as they have been set out in the law or at times to the desire to cooperate to a lesser form of offense when offered with that option (Yeo 2010). It has also been found out that juries are at times forced to comprise if the cases are dealing with certain influential people and in these cases provocation is usually raised as being a partial defense. Another issue that argues for the abolition of provocation is the legitimizing of lethal male domestic violence. Some cases which have been ruled in NSW since 2005, have raised a number of issues about the viability of the partial defense that is commonly seen as being the only applicable excuse for the use of lethal violence by men (Stewart & Freiberg 2009, p. 99). As it has been highlighted by the Victorian law reform commission in the reviews that they have carried out on the partial defense in relation to murder in Victoria, the justice system has a noteworthy and important role and they are expected to serve and set limits of both unacceptable and acceptable behaviors (Victorian Law Reform Commission 2004). Based on this when some laws are seen to be legitimizing the application of male violence in some intimate context, there seems to be an enforcement of violence against women. Based on this, provocation ought not to be viewed as being constituted to partial defense to murder when states such as the New South Wales (Morgan 2002). Conclusion This essay have proved that provocation ought to be abolished as being a partial defense in NSW and any considerations that need to be made in relation to provocation ought to be categorized under the sphere of sentencing. Also in the aim of ensuring that the law is clear on the various categories of offenses, the following recommendations need to be made to the current law. Partial Defense by provocation need to be abolished Culpability that relates more to the use of lethal violence that has been provoked to be considered as been a mitigating factor when sentencing the defendant rather than a substitute verdict. Guideline judgment for deeming provocation when sentencing for murder be in place and it ought to outline clearly what provoking behavior ought to be considered and which ought to be ignored when mitigating sentence for murder. In instances when they feel that the law needs to be retained the following adjustments ought to be made: The applicability of the law relating to provocation is restricted so as to minimize its use cases where the offender may have been responding to non violent confrontation. Problematic issues that are related to partial defence of provocation be acknowledged and be monitored for a number of years so as to deal with the issues. Cases cited R v Hamoui [no 4] [2005] NSWSC 279 Regina v Stevens 120081 NSWSC 1370 Singh v R [2012] NSWSC 637 References Clough, A., 2010. 'Loss of Self-control as a Defence: The Key to Replacing Provocation', The Journal of Criminal Law, 74, pp. 118-26. Coroners and Justice Act 2009 (UK) Crimes (Homicide) Act 2005 (Vic) Crimes (Sentencing Procedures Act) 1999 (NSW) Fitz-Gibbon K. & Pickering S., 2012. Homicide Law Reform in Victoria, Australia: From provocation to defensive homicide and beyond. British Journal of Criminology, 52(1), pp. 159-180. Fitz-Gibbon K., 2012a. Provocation in New South Wales: The need for abolition, Australian and New Zealand Journal of Criminology, 45(2), pp. 194-213. Fitz-Gibbon K., 2012b. The Aftermath of Provocation: Homicide Law Reform in Victoria, New South Wales and England, PhD Thesis. Victoria. Monash University. Ministry of Justice 2009. Murder, Manslaughter and Infanticide: Proposals for Reform of the Law -Summary of Responses and Government Position. London. Ministry of Justice. Morgan, J., 2002. Who kills who and why: looking beyond legal categories, Occasional Paper. Melbourne. Victorian Law Reform Commission. Stewart F. & Freiberg A., 2009. Provocation in Sentencing, 2 edn. Victoria. Sentencing Advisory Council. Tyson, D., 2011. Victoria's new homicide law: Provocative reforms or more women "asking for it"? Current Issues in Criminal Justice, 23(2), pp. 203-233. Victorian Law Reform Commission 2004. Defences to Homicide: Final Report. Melbourne: Victorian Law Reform Commission. Yeo, S., 2010. 'English Reform of Partial Defences to Murder: Lessons for New South Wales', Current Issues in Criminal Justice, 22(1), pp. 1-18. Read More