Partial defence of provocation

Queensland has been the last Australian jurisdiction to reform its law of criminal defences to try and take account of the difficulties faced by victims of domestic abuse in satisfying the traditional elements of self-defence. Section 304B of the Queensland Criminal Code was designed to create a partial defence for victims of domestic violence who, fearing for their lives, kill their abusers in circumstances that would otherwise constitute murder. Usually, these cases involve killing in the absence of a triggering assault or where the feared harm is not imminent. The partial defence provides that the accused will be found guilty of manslaughter only, thereby allowing for judicial discretion in sentencing. This paper argues that the new provision is ineffective and, in fact, puts victims of abuse who kill in a more difficult tactical position than if it had not been enacted. The theory of criminal responsibility (juxtaposing justification and excuse) and various moral theories are us...

In October 2010, provocation was abolished as a partial defence to murder in England and Wales. Through the introduction of the Coroners and Justice Act 2009 (UK), alongside a host of other reforms to the law of homicide, the British Government implemented a new partial defence of loss of control. The formulation of a loss of control partial defence sought to overcome the problems previously associated with the provocaton defnece and the gendered operation of the law of homicide, particularly in relation to male-perpetrated intimate homicides, and the perceived inability of the law to adequately respond to the contexts within which battered women kill. In the wake of the 2010 law reforms, this study has two purposes, first to provide an account of the legal developments to the English law of homicide, and second, to examine legal stakeholder’s perceptions of these developments. Drawing from in-depth interviews conducted with English criminal justice professionals, this article considers respondent perceptions of the operation of the law of homicide during a period of transition, specifically considering the formulation of the new partial defence, the initial effects of its implementation and the significant variances between the recommendations of the Law Commission.

In formulating a test for determining the defendant’s state of mind at the time of an offence, criminal courts have struggled to maintain a coherent and consistent approach. Located in the context of Law and Literature, which uses literary tools in analysing, understanding and shaping legal thought and action, my research explores problems of proof in criminal law, and the law’s relationship with the internal mind, through the literary figure of the double. Specifically, I will be looking at doubles in Gothic fiction from the nineteenth century, a time which struggled to understand the guilty psyche and personified the internal mind as an external being.

By utilising Gothic doubles as a new way of reading doctrinal and theoretical debates regarding mens rea, my thesis aims to prove that doubles in Gothic fiction, specifically in Strange Case of Dr Jekyll and Mr Hyde, Frankenstein; or, the Modern Prometheus and The Picture of Dorian Gray, can be read as external manifestations of the internal mind; as representations of the criminal law of the nineteenth century which was in the process of developing mens rea. Ultimately, my research aims to provide new and unique ways of engaging with concepts of gender, character and the divide between subjective and objective approaches in cases of recklessness.

The controversial partial defence of provocation has now been abolished in three Australian jurisdictions, including Victoria. Recent developments in Victorian case law would appear to suggest a continuation of 'excuses' for male anger and violence towards women that position the woman victim as to blame for her own death. This article considers that the 2005 abolition of provocation was only in part designed to redress the problem of victim-blame. The decision was accompanied by other key changes introduced into the Crimes Act 1958 (Vic) to make it easier for women who kill in the context of family violence to successfully claim self-defence and 'excessive self-defence' (defensive homicide). Drawing on recent developments in Victorian case law since the 2005 amendments, this article argues that the claim that provocation's victim-blaming narratives are being mobilised in the guise of other defences merits closer analysis. It also argues that provocation's critics must continue to expose the gendered (and raced) assumptions underlying the other defences to homicide, such as self-defence including manslaughter and the new offence of defensive homicide. Otherwise there is a risk that provocation's victim-blaming narratives could end up rewritten in such a way that support an argument for a reduction in culpability in cases where there is a history of violence against the woman victim, which is likely to result in claims that little has changed.

Following a high profile and controversial case in which the defendant successfully invoked the provocation defence, the NSW Government established a select parliamentary committee to review the defence and its operation. The Committee recommended that the current defence be “relabelled” a defence of “gross provocation”, which was structured substantially along the lines of the reform recommended by the Law Commission for England and Wales in 2004. The NSW Government has recently responded with a different proposal for a partial defence
of “extreme provocation”. This article critically evaluates the proposed reform of the provocation defence in NSW.

In October 2010, the UK Parliament brought into effect law that replaced the partial defence to murder of provocation with a new partial defence of ‘loss of control,’ applicable to England, Wales and Northern Ireland. Although it retained some key features of its controversial predecessor, the new partial defence was in part designed better to address the gendered contexts within which a large number of homicides are committed. In examining the impact of the reforms, we will focus on long-held concerns about the treatment of sexual infidelity as a trigger for loss of control in murder cases. The article undertakes an analysis of English case law to evaluate the way in which sexual infidelity-related evidence has influenced perceptions of a homicide defendant’s culpability, for the purposes of sentencing, both before and after the implementation of reform. The analysis reveals that, in sentencing offenders post reform, the higher courts have failed to follow the spirit of the reforms respecting the substantive law by effecting a corresponding change in sentencing practice.

Over the past two decades significant debate has emerged surrounding the operation of the partial defence of provocation. Such debates have led to its abolition in several Australian and international jurisdictions where Government and Law Commission bodies have argued that provocation has operated in a gender biased way that is no longer reflective of community values and expectations of justice. In contrast to the Australian states of Tasmania, Victoria and Western Australia, who have transferred consideration of provocation to sentencing, New South Wales (NSW) has retained provocation as a partial defence to murder. Drawing upon in-depth interviews conducted with legal stakeholders and an analysis of recent case law, this article considers whether the operation of provocation in NSW is still in the best interests of justice, and, specifically, whether in practice it privileges one gender above the other. This research concludes that the continued operation of provocation in NSW raises key issues surrounding the legitimisation of male violence against women, the denial and minimisation of the harm caused by lethal domestic violence, and the continued inability of the law to appropriately respond to women who kill in the context of prolonged family violence.

The partial defence of provocation has long attracted controversy and animated law reform in Australia and elsewhere. In June 2012, debate surrounding the provocation defence reignited in New South Wales following the trial and sentencing of Chamanjot Singh for manslaughter (by reason of provocation). In the wake of Singh, the NSW Legislative Council established a Select Committee to undertake a review of the partial defence of provocation. This article builds on the work done by the NSW Select Committee on the Partial Defence of Provocation in 2013. In doing so, it examines the merits of the newly formulated partial defence of 'extreme' provocation and argues that NSW would be better placed to repeal provocation as a partial defence and transfer its consideration to sentencing. It is argued that by reforming sentencing guidelines for murder in NSW, the law may be able to move beyond the problems traditionally associated with the provocation defence and more adequately respond to the gendered nature of homicide. CONTENTS

Queensland has been the last Australian jurisdiction to reform its law of criminal defences to try and take account of the difficulties faced by victims of domestic abuse in satisfying the traditional elements of self-defence. Section 304B of the Queensland Criminal Code was designed to create a partial defence for victims of domestic violence who, fearing for their lives, kill their abusers in circumstances that would otherwise constitute murder. Usually, these cases involve killing in the absence of a triggering assault or where the feared harm is not imminent. The partial defence provides that the accused will be found guilty of manslaughter only, thereby allowing for judicial discretion in sentencing. This paper argues that the new provision is ineffective and, in fact, puts victims of abuse who kill in a more difficult tactical position than if it had not been enacted. The theory of criminal responsibility (juxtaposing justification and excuse) and various moral theories are used to argue that victims of serious abuse who kill their abuser should be entitled to an acquittal, even without a triggering assault and even if the threat posed by the abuser is not immediate.

In 2005 in the Australian state of Victoria, significant changes were made to the defences to homicide. These reforms were in response to long standing concerns about the gendered operation of provocation and self‐defence by feminist researchers and advocates, Law Reform Commissions, the media and political pressures. This paper critically examines the reforms and the extent to which they have addressed these varied concerns and interests. The paper argues that these important law reforms have challenged some of the powerful narratives being used in the courts that minimise the existence and significance of family violence in intimate relationships. We see this particularly in judicial sentencing remarks. However, law reform must be accompanied by a shift in legal culture to be effective in practice. To this end, we argue that legal professionals need to have information about how to utilise the new family violence provisions as well as ongoing training and professional development to promote consistent understandings of family violence across the criminal justice system.

This dissertation examines the way that medical ‘experts’ and non-experts—judges, jurors, the press and the broader public—employed narratives and understandings of insanity during a period in which notions of mental health were in flux. Through a focus on the criminal trial in the colony, and later, state of Victoria between 1880-1939, this dissertation explores the operation of capital punishment as a system that allowed for popular readings of madness in relation to serious interpersonal crimes.

The system of capital punishment in the Australian colonies allowed for public activism during a two-week period between conviction and execution/commutation in which organisations, groups, families and individuals could submit letters, petitions or deputations to the Premier in support or condemnation of particular prisoners on a case-by-case basis. This dissertation maps the uneven activism deployed in these cases. Insanity was increasingly used by ordinary people as a discursive tool by which to contest the death penalty, and in some cases, a means by which to protest the material circumstances that governed their lives, conditions they viewed as having led offenders to commit crimes of desperation.

This research draws upon a dataset of 215 convicted trials to examine trials of murder and sexual assault at the Melbourne Supreme Court and assizes between 1880 and 1939. The dataset reveals general trends in crime prevalence, leniency and mental impairment defences that provides the ‘bigger picture’ of the subject matter that is used to contextualise specific case studies. This study is primarily a qualitative analysis of selected criminal trials within the sample that aims to uncover doctors’, lawyers’ and laypersons’ interactions with the new and evolving ‘science’ of psychiatry in the context of crime and criminal responsibility. The late-nineteenth century the criminal courtroom became a site of contested knowledge regarding mental states, witnessing insanity claims voiced by doctors, lawyers, judges and everyday people that were inextricably linked to ideas regarding criminality, gender, race and class. The broad-ranging representations of offenders are examined within a post-structural theoretical framework, in particular the ways in which gender informed judgments regarding mental states and culpability.

Chapter One outlines the operation of the criminal justice system, the origins of the field of psychiatry and the popular culture around crime that existed in the colony during the late-nineteenth century in order to contextualise the case studies that follow. Chapter Two examines how constructions of femininity heavily impacted upon trials of women who killed infants. Chapter Three investigates how insanity claims presented in trials for male-perpetrated intimate partner homicides were informed by middle-class visions for respectable masculinity between 1880 and 1914. Chapter Four considers the sizable historiography of women who committed murder (excluding infanticide) in Australia, and examines factors of femininity and class in putting forward a more nuanced and historically-grounded approach to the history of women who killed partners between 1880 and 1939. Chapter Five explores male-perpetrated intimate partner homicides between 1914 and 1939, demonstrating how factors such as service in the First World War, the economic depression and the circulation of psychoanalytic language affected constructions of masculinity and insanity at trial. Chapter Six demonstrates how contemporary understandings of sexuality, race and gender informed insanity claims in trials for sexual offences throughout the period, examining the three capital sexual offences of rape, buggery and carnal knowledge of a girl under ten alongside one another.

In November 2005, the Victorian Government implemented a new offence of defensive homicide, alongside the abolition of the partial defence of provocation. This new category of homicide was introduced, not as a replacement for the abolished provocation defence, but rather as a ‘safety net’ between murder and an acquittal for women who kill in response to prolonged family violence. Since its implementation, the operation of this new offence has already begun to raise concern, particularly in relation to its successful use in the 2010 trial of Luke Middendorp. Using defensive homicide as a case study, this article examines the continued delegitimisation of victims in the Victorian criminal justice process. Specifically, it draws from a transcript analysis of cases resolved in the first seven years of the offence’s operation, to consider the use of the offence in three contexts: when raised by men who have killed a female intimate partner; where successfully used in cases of lethal male on male violence; and where applied to female defendants who have killed in response to prolonged family violence. The resulting theoretical discussion suggests that in the wake of abolishing provocation the Victorian law of homicide has continued to minimise the status of victims and in so doing, has been unable to distance itself from the narratives of victim blame, denigration and delegitimisation that were previously linked to the operation of the controversial provocation defence.

Equality and the Defence of Provocation: Irreconcilable Differences Recent amendments to the defence of provocation have limited access to the defence to those who are provoked by conduct that, if prosecuted, would have been an indictable offence punishable by at least five years imprisonment. The paper argues that these amendments are both over-and under-inclusive and fail to confront the central problem surrounding provocation which is that it privileges loss-of-control rage often in the context of male violence against women or in response to same-sex advances. The paper supports the abolition of the defence of provocation but only if mandatory minimum sentences for murder are abolished providing trial judges sufficient discretion in sentencing to consider the relevance of provocation. Les r~centes modifications apportdes 6 /a defense de provocation ont limit6 son acces a ceux qui sont provoquds par une conduite qui, si elle avait fait lobjet d'une poursuite, aurait constitu6 un acte criminel punissable d'au moins cinq ans d'emprisonnement. L'article soutient que ces modifications sont6 /a fois trop etpas assez inclusives et ne sattaquent pas au problme central entourant la defense de provocation, 6 savoir que sont privilgibes les acc~s de colre et la perte de la maitrise de soi, souvent dans le contexte de la violence des hommes contre les femmes ou en rdponse 6 des avances faites par une personne du m~me sexe. Dans /"article, nous pr~conisons /'abolition de la defense de provocation, mais seulement si les peines minimales obligatoires pour meurtre sont abolies, ce qui conf~rerait aux juges de premiere instance un pouvoir discr~tionnaire suffisant dans /a determination de la peine pour examiner la pertinence de la provocation.

In 2005 in the Australian state of Victoria, significant changes were made to the defences to homicide. These reforms were in response to long standing concerns about the gendered operation of provocation and self-defence by feminist researchers and advocates, Law Reform Commissions, the media and political pressures. This paper critically examines the reforms and the extent to which they have addressed these varied concerns and interests. The paper argues that these important law reforms have challenged some of the powerful narratives being used in the courts that minimise the existence and significance of family violence in intimate relationships. We see this particularly in judicial sentencing remarks. However, law reform must be accompanied by a shift in legal culture to be effective in practice. To this end, we argue that legal professionals need to have information about how to utilise the new family violence provisions as well as ongoing training and professional development ...

In October 2010, the UK Parliament brought into effect law that replaced the partial defence to murder of provocation with a new partial defence of “loss of control”, applicable to England, Wales, and Northern Ireland. Although it retained some key features of its controversial predecessor, the new partial defence was in part designed better to address the gendered contexts within which a large number of homicides are committed. In examining the impact of the reforms, we will focus on long-held concerns about the treatment of sexual infidelity as a trigger for loss of control in murder cases. The article undertakes an analysis of English case law to evaluate the way in which sexual infidelity-related evidence has influenced perceptions of a homicide defendant's culpability, for the purposes of sentencing, both before and after the implementation of reform. The analysis reveals that, in sentencing offenders post reform, the higher courts have failed to follow the spirit of the re...

In November 2005, the Victorian government implemented a new offence of defensive homicide, alongside the abolition of the partial defence of provocation. This new category of homicide was introduced not as a replacement for the abolished provocation defence, but rather as a ʻsafety netʼ between murder and an acquittal for women who kill in response to prolonged family violence. Since its implementation, the operation of this new offence has already begun to raise concern, particularly in relation to its successful use in the 2010 trial of Luke Middendorp. Using defensive homicide as a case study, this article examines the continued delegitimisation of victims in the Victorian criminal justice process. Specifically, it draws from a transcript analysis of cases resolved in the first seven years of the offenceʼs operation, to consider the use of the offence in three contexts: when raised by men who have killed a female intimate partner; where successfully used in cases of lethal male-...

Over the past two decades significant debate has emerged surrounding the operation of the partial defence of provocation. Such debates have led to its abolition in several Australian and international jurisdictions where Government and Law Commission bodies have argued that provocation has operated in a gender biased way that is no longer reflective of community values and expectations of justice. In contrast to the Australian states of Tasmania, Victoria and Western Australia, who have transferred consideration of provocation to sentencing, New South Wales (NSW) has retained provocation as a partial defence to murder. Drawing upon in-depth interviews conducted with legal stakeholders and an analysis of recent case law, this article considers whether the operation of provocation in NSW is still in the best interests of justice and specifically, whether in practice it privileges one gender above the other. This research concludes that the continued operation of provocation in NSW raises key issues surrounding the legitimisation of male violence against women, the denial and minimisation of the harm caused by lethal domestic violence, and the continued inability of the law to appropriately respond to women who kill in the context of prolonged family violence.

The operation of the partial defence of provocation has animated significant debate for more than two decades among scholars, legal practitioners, politicians and the community. In recognition of the injustices that result from its operation, criminal justice systems worldwide have conducted reviews of the law of provocation and have implemented divergent reforms targeted at minimizing the influence of gender bias in the law's operations. Drawing on the voices of over one hundred members of the Victorian, New South Wales and English criminal justice systems, this book provides a much-needed comparative analysis of the operation of this controversial partial defence to murder, the varied approaches taken to reforming the law of provocation and the effects of these reforms in practice.

Centrally concerned with conceptual questions of gender, justice and the role of denial in the criminal justice system, Fitz-Gibbon's analysis provides a unique view of the injustice of the provocation defence alongside the unintended consequences of homicide law reform that either retains, replaces or abolishes the doctrine. This insightful book offers valuable lessons for future jurisdictions that seek to improve the adequacy of the law's response to lethal violence and to solve the problem of provocation, and will appeal to scholars of Criminology, Socio-Legal Studies and Law, as well as domestic violence advocates and legal stakeholders.