The Defence of Provocation free essay sample

The Defence of Provocation Provocation is a defence which reduces the offence of murder to manslaughter. Even though there may be an intent to kill it can be deemed that, in some circumstances, it is not appropriate to be classified as murder. It is not saying the killing is justified or excused. What it is saying is that the circumstances, the response (which resulted in the killing) is within the normal range of behaviour of what can be expected of the ordinary person and that it represents an acknowledgement of human frailty. This is the traditional view of the law. 1] When the penalty for murder was death, often provocation was a way of reducing the punishment from the death penalty to life imprisonment. In jurisdictions where there was a mandatory life sentence, there was also an argument for this defence to be in existence. [2] In this paper, the issues of the relevant stakeholders, previous provocation cases, and the law will be discussed in regards to any amendments or recomm endations that need to be made in changing the current law in regards to the defence of provocation and how it will affect the Queensland society and its stakeholders. We will write a custom essay sample on The Defence of Provocation or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page One of the main issues with the defence of provocation include the timing between the act relied on as being provocative and the assault or killing is very important. The longer the time between the provocative act and the assault or killing the more difficult it is going to be to use the defence. [3] This time limit for the provocation defence has caused difficulties in the case of ‘battered spouse syndrome’. These are cases where one party to a relationship, usually the woman, puts up with serve physical, emotional abuse from her partner. Eventually she ‘snaps’ and acts violently towards her partner. Women in this situation, who have tried to use this defence, have often been unsuccessful in proving provocation. This applies only where the assault is proportional to the provocative act. So, killing a person because they are having a sexual relationship with their ex-wife/husband/lover has not usually been enough for the killer to rely on the provocation defence. However, sometimes the male of the relationship has been charged with the murder of their wives have successfully used the defence of provocation. This has been used the most particularly where the oman has left the marriage or relationship to start another sexual relationship with another man. The stakeholders involving the issues of provocation include the victim, the defendant, legal personnel – judges, barristers, solicitors, crown prosecutors, medical staff, police officers and commissioners, jury, forensic pathologists and the coroners -, surrounding members of the community and martial partners. The law affe cts the victim’s family because of their ability to seek justice against the defendant. The defendant’s family is affected as their family may have lost the main income earner of that family, causing them to suffer. Medical staff, police officers, forensic pathologists and coroners are affected by the law. According to the Criminal Code Act 1899 (Qld), section 269(1) states that a person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for the person’s passion to cool, and if the force used us not disproportionate to the provocation and is not intended, and is not such as likely, to cause death or grievous bodily harm. Whereas section 304(1) states that when a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only. The current law has been applied to the following cases through numerous through the Parliamentary Act, Criminal Code (Qld) 1899, through sections 269 and 304. The Penalties and Sentencing Act (Qld) 1992, has also been applied in regards to the final sentencing punishment of the defendants of the following cases. The Supreme Court case, R v Murray[4], states that the appellant pleaded not guilty to one charge of murder – where the appellant was found guilty of manslaughter – where, although the appellant intended to kill the deceased, e was only criminally responsible for manslaughter because of provocation under section 304[5] where the appellant was sentenced to nine years imprisonment under section 161B[6] where there was a declaration that the applicant had been convicted of a serious violence offence. Where the case R v McDougall and Collas[7] was applied as a precedent to the final decision of the case. The Supreme Court case, R v Vollmer[8], states that the appellant was convicted of murdering his de facto partner – where evidence as to the deceased’s past violent history in a previous relationship was available at the time of trial but not relied on by defence counsel – where there was no evidence led at trial or on appeal of a history of violence between the appellant and the deceased – where the appellant sought to rely on the defences of self-defence and provocation at trial under sections 271(2), 304 and 668E(1)[9]. Where the cases R v Hajistassi[10], R v Mogg[11] and Re Knowles[12] were applied as precedent to the final decision of the case. The Supreme Court case, R v Harold[13], states that the appellant was convicted by jury of manslaughter of his de facto partner where applicant was sentenced to 14 years imprisonment – where sentence took into account, among other things, nine summary offences and two charges of assault occasioning bodily harm to which the applicant pleaded guilty – where on sentencing the prosecution submitted that a sentence of 12 years imprisonment should be imposed on the manslaughter conviction and a further two years imprisonment should be imposed for subsequent offences which the applicant pleaded guilty to at the hearing – where the applicant was not remorseful and did not plead guilty on the manslaughter charge – where the applicant had considerable history of violence toward the deceased – whether the sentence is manifestly excessive. Where the cases R v Bell[14] and R v Mooka[15] were applied as precedent to the final decision of the cases. The interests of the stakeholder’s conflict through the trial of the appellant, the attack on the deceased, the relationships of the appellant and the deceased as well as the legal personnel involved with the case. The issues of this case affect the stakeholders as the legal personnel may need to go through counselling, depending on how gruesome the murder has been. The appellant’s and deceased’s family may have lost the main source of income and therefore may struggle to pay the monthly bills or provide for their family. The jury may fear for their lives as they may believe that the appellant may target them because of the verdict that they come to in the court. Some stakeholders in society see the general refusal of the law to recognise â€Å"battered spouse syndrome† (as mentioned earlier) as an example of sexist attitudes and an example of the law’s insensitivity to women’s issues. This legal principal is a good example of the law rejecting the society of which it operates and the need for legal principals to change as society changes. 16] A female judge quotes, â€Å"Laws do not spring out of a social vacuum. The notion that a man has the right to ‘discipline’ his wife is deeply rooted in the history of our society. The woman’s duty was to serve her husband and to stay in the marriage at all costs ‘till death do us part’ and to accept as her due any ‘punishment’ that was meted out for failing to please her husband. One consequence of this attitude was that ‘wife battering’ was rarely spoken of, rarely reported, rarely prosecuted, and even more rarely punished. Long after society abounded its formal approval of spouse abuse, tolerance of it continued and continues in some circles to this day.