Evaluate the Effectiveness of Law Reform in Dealing with Defences to Criminal Charges in the Criminal Justice System
Where an attacker loses control based on the actions or the words of the deceased person and where those action could have induced an “ordinary person” to lose self control – Partial defence to murder, if successful, reduces charge to manslaughter Controversial – Male partners abusing this defence in domestic violence cases where spouses have been killed – If completely abolished battered women will be disadvantaged – Gay panic cases
Evidence – Changing provocation law could legitimise lethal acts of domestic violence – SMH 21 Oct 2013 •Under the proposed reform, the defence will be significantly restricted and will be renamed the “partial defence of extreme provocation”. (Committee report) •Reform follows on from the April 2013 release of the Final Report of the Select Committee of the NSW Parliamentary Inquiry into the operation of the partial defence of provocation •“Without provocation, vulnerable defendants would be convicted of murder and risk long terms of imprisonment.
” (Problem) •In the most controversial cases, men who have killed a female intimate partner in response to a relationship separation or an alleged confession of infidelity have been able to avoid a conviction for murder by arguing that it was the non-violent conduct of the victim that provoked them to kill. Evidence – Crimes Amendment (Provocation) Bill 2013 (NSW) •Partial Defence of Extreme Provocation The defence will now require the provocative conduct on part of the victim to be a serious indictable offence Advantage to battered women Evidence – Green v The Queen 1997 HCA •This is a gay panic case
•The use of the provocation defence in “gay panic” cases has been abolished as a non-violent sexual advance can never constitute “extreme provocation” Evidence – R v Singh 2012 NSWSC Evidence – Finding Reason for Taking a Life – SMH 1-2 Sep 2012 •About 10pm on December 29, 2009, Manpreet Kaur was killed by her husband, Chamanjot Singh. (there were incidents DV before – Manpreet had told at least two people) •Singh’s defence managed to establish he had been ”provoked” into losing control by his wife threatening to leave him, have him deported, and by an angry phone call from her brother-in-law in India that same night.
•In his sentencing remarks on June 7, 2012, the judge described the attack as ”ferocious” and ”brutal”. The walls were splattered with blood and an autopsy showed that Kaur had been strangled before her throat was repeatedly slit with a box cutter. •But according to the verdict, Singh was not a murderer. (Injustice to victim & family) •Because of the successful defence, Singh was jailed for a minimum of six years •Sentence sparked an uproar, a woman’s words to a violent husband could somehow ”justify” a fatal attack.
•”The least that this Parliament can do for Manpreet Kaur and her family is to review the laws and to bring about changes that will give the community confidence that the law reflects community views,” said Labor MLC Helen Westwood on June 14, calling for an inquiry. ”Law reform will ensure that husbands do not use the defence of provocation to justify the murder of women. ” (Will it really? ) •It was argued that abolishing provocation risked consequences that many politicians and domestic violence activists, who had cheered the inquiry, would be uncomfortable with. Attempting to uphold the rights of women against violent men could, in this instance, also disadvantage battered women. Evidence – The Partial Defence Of Provocation – Final Report on 23/04/2013 by the NSW parliamentary Select Committee on the Partial Defence of Provocation •The Select Committee on the Partial Defence of Provocation is a current select committee of the Legislative Council, established 14 June 2012, and ended 23 April 2013 •Only one year of deliberation
•Bill is based on the 11 recommendations for the NSW gov. (all amendments are to the Crimes Act 1900) Recommendations (the views of the people/society): 1. Provide clear direction to assist prosecutors in determining the appropriate charge to lay against defendants (especially if there history of violence towards the defendant) 2. Make an amendment similar to Vic Crimes Act 1958 – explicitly provide that evidence of family violence may be adduced in homicide matters (DV as brought forward as evidence).
(3. )Have the Attorney General examine the appropriateness of existing provisions with a view to improving protection for victims and their families while also ensuring that legitimate social framework evidence is able to be admitted 4. Amendment to rename the partial defence ‘the partial defence of gross provocation’. 5. Have the defence is only available in circumstances where the defendant acted in response to ‘gross provocation’ 6.
Ensure that the defence is not available to defendants who: • incite a response to provide an excuse to respond with violence • respond to a non-violent sexual advance by the victim 7. Introduce an amendment to ensure that the partial defence is not available to defendants, other than in circumstances of a most extreme and exceptional character if there was a domestic relationship, unlawful killing, result of ending/changing/revealing/taunting etc. relationships (ie.
Caught in the act, revealing infidelity etc. ), parenting arrangements for children 8. Amendment so that self-induced intoxication during the time of the act or omission resulting in death is to be disregarded (therefore cannot blame act on drunkenness/substantial impairment of the mind) 9. Amendment so that a judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply 10.
NSW government develop and implement an education package on the nature and dynamics of domestic and family violence targeting the legal sector and the community more broadly 11. Attorney General issue a reference to the NSW Law Reform Commission, requiring that it undertake a comprehensive review of the law of homicide and homicide defences in NSW, including reforms made in accordance with the recommendations in this report, to commence at the end of five years from the date of this report (massive time delay, not effective for new cases)