Historically, partial defences developed in common law to mitigate the punishment of murder. When capital punishment and mandatory life sentences were deemed as appropriate penalties for murder, partial defences operated to alleviate the harshness of the penalty, as well as reducing the criminal culpability from murder to manslaughter. However the evolution of the contemporary criminal justice system has abolished these mandatory punishments in NSW. Furthermore, Judges have been allowed greater discretion in sentencing. These progressions in have stimulated criticism and debate over the true operation and purpose of the NSW partial defences. In particular, the defences of provocation and infanticide have been viewed as unnecessary in the contemporary criminal process, and their operational flaws have recently been criticised by the public. This essay argues that the abolition of these partial defences would allow for greater efficiency and simplicity to the criminal process, consequently leading to a greater confidence in the criminal justice system.
Provocation – Issues of Public Confidence
The traditional view of provocation does not attempt to justify or excuse a killing. Thus retention of provocation allows for an acknowledgement of human frailty, and alleviates the harsh label of ‘murderer’ if the killing of another was a response within normal behaviour of an ordinary person. However procedurally, in a murder trial, the provocation defence is only considered after an establishment of the murder elements, and hence allows provocation to be raised in cases where there is intent to kill another. Through a moral perspective it can be argued that where there is an intention to kill, murder should not be mitigated to manslaughter purely because the accused lost self-control. This perspective was undertaken by the Attorney General in 2003, and formed the main reason for the abolishment of defence. This was because the requirements of provocation could be more easily satisfied than the other defences to murder, as explored in Ramage, and hence the Commission abolished provocation upon finding that it could lead to a miscarriage of justice.
The abolishment of provocation in Tasmania, Victoria and Western Australia seem to indicate the general expectation of people to control impulsive behaviour, in provoking circumstances. Conversely, each state inferred that the operation of provocation indicated a lower expectation of people to an extent which was inconsistent with contemporary values and morals. Thus provocation was repealed to ensure a proper application of justice, and to instil greater confidence in the criminal justice system.
Proponents of provocation have also stated that provocation could be regarded within sentencing, and hence the repeal of provocation would allow for greater efficiency and simplicity to the criminal process. Thus the absence of provocation as a defence would not cause significant changes due to the court’s full discretion upon sentences for murder. The opposing view, as raised by Legal Aid NSW states that provocation allows for culpability to be assessed by a jury, who represent the community acceptance of homicide verdicts. However on the contrary, the jury’s assessment can lead to unfavourable outcomes, such as in Singh. This is mainly has often been questioned and debated. to kill a child under 12 months of age. In contrast, it is widely accepted that children are members of society who require the most protection, and hence it is argued the law be consistent in recognising homicide as an act of killing another. The greater consistency of the criminal procedure would inherently encourage greater understanding and confidence in the criminal justice system.
Infanticide: Uselessness and Plausible Alternatives
In Australia, NSW is currently the only…