Is there Need for Further Law Reform for the Partial Defences to Murder in Regards to Domestic Violence?
The extreme provocation, partial defence to
murder cannot yet be assessed for further law reform due to recent law reforms
in 2014 that changed the criteria from just provocation to extreme provocation.
These changes were enacted following large controversies surrounding the use of
this defence in R v Singh [2012]NSWSC 637 where Mr. Singh had brutally killed
his wife with a box cutter. He was convicted of the manslaughter of his wife,
brought down from murder, but he used the defence of provocation which lowered
his length of sentence down to six years. There was community outrage following
what was thought to be inadequate sentencing due to this defence by the
community. In a Sydney Morning Herald Article dubbed “Six years for killing
sparks call for law review” published in June of 2012 describes how the case
“has brought calls from the woman’s family, crime victim advocates and a state
government MP for a review of the defence of provocation”.
The reasons behind
this call are due to a Victorian Law Reform commission “which found the law
“partly legitimises killings committed in anger”” and the convener of the NSW
Domestic Violence Coalition, Betty Green commenting “It’s a historical thing to
blame women for the violence that they experience”. This media and community
pressure eventually caused the government to recently pass The Crimes Amendment
(Provocation) Act 2014 (NSW) in June of 2014. It set the criteria to, under
section 23, clause 2 of the aforementioned act, where the defence of
provocation can only be used if the conduct of the deceased: “was a serious
indictable offence”, “caused the accused to lose self-control” and “could have
caused an ordinary person to lose self-control to the extent of intending to
kill”. This law reform further prevents the use of this partial defence in an
effort to reduce domestic violence caused murders, however, due to the change
being recent and thus not being used in many cases, it is yet unknown whether
further law reforms are necessary for this defence. Substantial impairment may
not need further law reform as, generally, it achieves justice for victims,
offenders and society. The partial defence is governed by section 23a of the
Crimes Act 1900 (NSW) covering abnormalities of the mind. This defence reduces
the accused’s culpability of the crime, usually from murder down to
manslaughter, if they are able to prove on the balance of probabilities that
they have a diminished responsibility. This defence was used notably in R v
Gilham [2009] NSWCA 138, where Mr. Gilham had a substantial impairment of the
mind when he found his brother had killed his parents. His charged was dropped
from murder of his brother to manslaughter. Although the onus is usually on the
state to prove criminal liability, in this case, the use of this defence with
this added restriction may prevent use of this defence as a means of evading sentencing.
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