Defence Provocation - Grade: 12/15 PDF

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Summary

Two short responses for the partial defence of provocation.

Updated as of 2020....

Description

Evaluate the effectiveness of provocation laws in achieving just outcomes for the parties involved. The newly amended provocation laws have been more successful in achieving just outcomes, by removing various questionable aspects of the law to better reflect society. However, it’s been debated the laws are too restrictive making them almost redundant with greater difficulty in using provocation in various convoluted areas such as the battered woman. Provocation has remained relatively stagnant over time, however, gained increased publicity in the late 2000s due to increased exposure to scenarios and changing societal value. A clear example of this is the R v Singh case (2012), where a man slit his wife with a box cutter for her alleged infidelity, which resulted in her death. Despite the tragic outcome, the man was charged with manslaughter after successfully arguing he was provoked. This decision caused frustration among society, where it did not appear to be a just outcome. These ideas were further enhanced with the release of an SBS Insight program, where the media have fueled society’s distaste towards the laws, calling for reform. At the same time, there was still debate about another aspect of the laws, being the ‘gay panic’ reasoning. Under this law, men were able to claim they were provoked when they believed a person was going to make a non-sexual advance on them. With a changing social structure, this aspect did not meet society’s contemporary views and was widely denounced by society. Due to these issues with the provocation laws, the government issued a Parliamentary Committee in 2013 to conduct an in-depth analysis of the current laws, and propose new amendments to reflect societal values with respect to the victim and offender, resulting in the Crimes Amendment (Provocation) Act 2014. The new laws imposed greater restrictions on the use of provocation as a partial defence, with two notable exemptions in it. First is the official removal of the ‘gay panic’ reasoning for provocation, but have also said that dear of infidelity or jealousy is not justifiable as an act of provocation. There were several parties opposed to these changes, however, on the whole, the laws better reflected the values of social discontent with people who used jealousy as a means to reduce their sentence, particularly when the victim died and cannot speak for themselves. Overall, the provocation laws had several flaws in achieving justice for different stakeholders, often providing controversial decisions in favour of the offender such as the R v Singh case. However, the Crimes Amendment (Provocation) Act 2014 addressed these issues and removed several aspects of the law that were outdated or did not reflect the views of society. Recent changes to the provocation law have mostly improved justice for victims after some high profile cases brought to light its ineffectiveness. Provocation is a partial defence for murder which reduces the charge to manslaughter. To succeed in this defence, it has to be proven that the victim provoked the accused to the point where an ordinary person would lose self-control and react as the accused did. In some cases, especially domestic violence, provocation was used as a defence as evident in R v Singh [2012] NSWSC 637. In these cases, the rights of the victim were not balanced with the accused because the victim was not able to defend the accusations made against them. Public outrage grew after the issue was highlighted on SBS’s Insight program and a subsequent Legislative Council Select Committee (2012) on the provocation defence resulted in the Crimes Amendment (Provocation) Bill 2014. The Crimes

Amendment (Provocation) Act (2014) ultimately reformed the law so that the conduct of the deceased had to be a serious indictable offence and provocation could not be used in cases of non-violent sexual advances. Whilst these changes better-reflect society’s values, some experts such as Dr Kate Fitz-Gibbon (an expert in the areas of family violence and legal responses to lethal violence) argue that the defence should have been abolished altogether. She argues that the ‘the reforms serve to restrict the partial defence to the point of redundancy and that the very category of defendants for whom the defence was retained – women who kill in response to prolonged family violence – will likely be unable to meet the strict requirements of the new ‘extreme’ provocation defence’. Furthermore, other state jurisdictions such as South Australia retain provocation in its original form and highlight the inconsistencies evident throughout the country. Ultimately, justice has largely been improved for victims and society by tightening the conditions by which the offender can use the defence in NSW. In conclusion, the new provocation laws have been mostly achieved for parties in the partial defence of provocation, though legal experts have debated the laws are too restrictive making them almost redundant with greater difficulty in using provocation in areas such as battered women. Despite this, the reform has mostly been successful due to the improvement for victims and society by tightening the conditions by which the offender can use the defence in NSW....