Provocation
| Criminal Law in a Justice Environment. | Research Assignment Provocation | | | 9/12/2012 |
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The following is an analytical essay that will look at how the defence of provocation operated here in Victoria prior to its abolishment in 2005, this essay will also review recommended changes to Homicide Laws made by the Victorian Law Reform Commission in its Defences to Homicide: Final Report 2004, which of these changes where acted upon and when by the Victorian Government in response to the report. The latter section of this essay will take a deeper look into the offence of homicide reviewing recent conflicting reviews and arguments in regard to either its reform or abolition using internet sources, local media discussions/interviews and relevant case files as supportive evidence for each view.
IN early 18th century Lord Holt CJ in R v Mawgridge (1707) 84 ER 1107, 1114-1115 four categories of provocation were identified: 1. A grossly insulting assault. 2. Witnessing a person attacking a friend. 3. Seeing a person being unlawfully deprived of liberty. 4. Catching a man in the act of adultery with ones wife.
Historically killing a sexual rival who one caught committing an act of adultery with one’s wife was basis for the defence; however killing one’s wife for the same act was not. The focus was on the response invoked in the offender being justified due to the actions of the victim, being viewed as a violation of the offenders rights (Council, 2009).
The focus shifted by the 19th century to an offender’s total loss of self control in the face of such provocation and not the wrongfulness of the victim. The view was becoming more about the probability that if a reasonable person was place in the same or similar situation would they too loose all self control? The rationale of provocation was now no longer being used as a partial justification but as a partial excuse, this change in rational was highlighted in R v Kirkham (1837) 8
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The following is an analytical essay that will look at how the defence of provocation operated here in Victoria prior to its abolishment in 2005, this essay will also review recommended changes to Homicide Laws made by the Victorian Law Reform Commission in its Defences to Homicide: Final Report 2004, which of these changes where acted upon and when by the Victorian Government in response to the report. The latter section of this essay will take a deeper look into the offence of homicide reviewing recent conflicting reviews and arguments in regard to either its reform or abolition using internet sources, local media discussions/interviews and relevant case files as supportive evidence for each view.
IN early 18th century Lord Holt CJ in R v Mawgridge (1707) 84 ER 1107, 1114-1115 four categories of provocation were identified: 1. A grossly insulting assault. 2. Witnessing a person attacking a friend. 3. Seeing a person being unlawfully deprived of liberty. 4. Catching a man in the act of adultery with ones wife.
Historically killing a sexual rival who one caught committing an act of adultery with one’s wife was basis for the defence; however killing one’s wife for the same act was not. The focus was on the response invoked in the offender being justified due to the actions of the victim, being viewed as a violation of the offenders rights (Council, 2009).
The focus shifted by the 19th century to an offender’s total loss of self control in the face of such provocation and not the wrongfulness of the victim. The view was becoming more about the probability that if a reasonable person was place in the same or similar situation would they too loose all self control? The rationale of provocation was now no longer being used as a partial justification but as a partial excuse, this change in rational was highlighted in R v Kirkham (1837) 8
Bibliography: Colvan, M. a. D. S., 2011. ABC News. [Online] Available at: http://www.abc.net.au/pm/content/2011/s3155692.html Commission, V. L. R., 2004. Defenses to Homicide Final Report. [Online] Available at: www.lawreform.vic.gov.au/sites/default/files/FinalReport.pdf Commission, V. L. R., 2012. Defences to Homocide. [Online] Available at: http://www.lawreform.vic.gov.au/inquiries/defences-homicide Commission, V. L. R., 2012. Defensive Homicide - Fact Sheet. [Online] Available at: http://www.lawreform.vic.gov.au/vlrc-voice/defences-homicide-fact-sheets Council, T. S. A., 2009. Provocation in Sentencing. [Online] Available at: http://www.sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/provocation_in_sentencing_research_report_second_edition.pdf Fitz-Gibbon, K. a. F. A., 2012. Bargaining with defensive homicide: examining Victoria’s secretive plea bargaining system post-law reform. Melbourne University Law Review . Hasan v The Queen [2010] VSCA 352 (17 December 2010) (2010) Austlii. Howe, A., 2010 Jane, 2010. Domestic Violence Resource Centre. [Online] Available at: http://www.dvrcv.org.au/defensive-homicide-submission/ Karen Black - R v Black [2011] VSC 152 (2011) Austlii. Opinion, 2012 Partner, D. v. H. t. l. t. w. w. k. a. v., 2012. The Conversation. [Online] Available at: http://theconversation.edu.au/domestic-violence-how-the-law-treats-women-who-kill-a-violent-partner-6983 Petrie, A., 2012. The Age. [Online] Available at: http://www.theage.com.au/victoria/murder-deals-under-fire-20120624-20wmh.html R v Edwards [2012] VSC 138 (24 April 2012). (2012) Austlii. R v Goldmen [2007] VSCA 25 (1 March 2007) (2007) Austlii R v Martin [2011] VSC 217 (20 May 2011) (2011) Austlii. R v Spark [2009] VSC 374 (11 September 2009) (2009) Austlii R v Svetina [2011 VSC 392 (22 August 2011) (2011) Austlii.