Provocation is one of the major defences used within our Queensland court system, with Queensland being one of the only States in Australia that still allow its use. The defence is considered to be highly controversial, and the majority of states in Australia have abolished it. This lead to heated debate all throughout Australia, with stakeholders claiming that provocation is an unacceptable excuse, no longer relevant to modern society. Many of the Queensland residents agree with these views, and believe that provocation should be excluded from the court system, as in numerous high profile cases, it is abused and misused by men, particularly in domestic violence situations. Therefore, it is crucial that this defence is investigated, and appropriate …show more content…
A partial defence is described as something the defendant can use in court to downgrade or reduce a criminal charge or penalty. The onus of proof lies with the prosecution, so they will need to disprove this defence beyond reasonable doubt. In order for the accused to put forward the defence of provocation, four elements must be established. To begin with, there must have been a provocative incident that invokes ‘passion’, that being fear or rage in the accused, and they must lose control in direct response to this incident. The accused would have to act suddenly, not allowing time to gain control over their emotions, and the incident must have been enough for an ordinary person to lose control. If these four criteria have been met, and the jury agrees, then the accused may have their sentence reduced or they may have their charge downgraded, depending on the circumstances. This can lead to many controversial decisions within our court …show more content…
It is most commonly abused by men who have killed their partners for infidelity, or during a fight, to downgrade their murder charges to manslaughter. An example of this, is the case of Damian Sebo (R v Sebo [2007] QCA 426). In this case, Damian Sebo (28) attacked his 16-year-old ex- girlfriend Taryn Hunt over the head multiple times with a steering wheel lock, after she taunted him, saying she had been cheating on him. Two days later she was pronounced dead. At first Sebo claimed he had nothing to do with her murder, however later confessed, stating it was all her fault, that her taunts and manipulation had provoked him into doing it. Following this Sebo was charged with murder, however when he pleaded provocation the Jury agreed and found him guilty of manslaughter; he was sentenced to only eight years in jail. This case clearly highlights the misuse of the defense, and lead to a public outcry from all across Queensland. The significant response to this case is what lead to the amendment of legislation during 2011, stating that provocation cannot be claimed from an incident involving words alone, such as in this case. Although this case took place before this amendment, it still displays the ways in which the defense is misused, and why provocation should be
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344. The. Australian Institute of Criminology, [Online]. Available at: http://www.aic.gov.au/documents/0/C/5/%7B0C5DFDDF-7A72-43F9-80A1-CA6D51B635B6%7Dtandi344.pdf, [Accessed 14 April 2011].
Pinot, S, Wardlow, G, 'Political Violence', Australian Institute of Criminology, 1989, Retrieved 15 March 2011,
The purpose of this research paper is to prove that criminal law in America has failed to provide a defense that adequately protects women suffering from Battered Women's Syndrome. Battered Women's Syndrome, or BWS, is a very complex psychological problem facing criminal courts today and has caused great debate on whether or not it should even be allowed in the courtroom. Although the syndrome has been given more consideration as a warranted issue by society, those who create our laws and control our courtrooms, have not developed a defense that sufficiently protects these women. United States courtrooms, instead of protecting battered women, have put these women on trial and found them guilty of murder.
My stance is in alignment with the Supreme Court of Canada in that the accused is guilty of second-degree murder. Deemed he wasn't provoked, he believed that although he didn't have a full intent to kill, he did have a premeditated intent to kill in a potential scenario had he crossed paths with the wife’s lover. Then lastly the defence of provocation and an “ordinary person”. How his intent would be proven in the specific interaction before the murder? A key variable which could have concurred with the outcome of the murder was the gun being just a bluff.
defenses and justification defenses. (Lawteacher.net, 2014) Focusing on excuse defense, some examples are known as; age, mental disorder, automatism, mistake of fact, and mistake of law. (Lawteacher.net, 2014) Mental disorder is defined as “disease of the mind.” (Lawteacher.net, 2014) This excuse supports that the defendant was not thinking normally at the time of the criminal act and therefor did not understand the act of the crime they committed. (Lawteacher.net, 2014) Some examples of mental disorder are known as paranoia, schizophrenia, and depression. (Lawteacher.net, 2014) Automatism is used as an excuse that the environment around the defendant caused them to commit the criminal act involuntarily. This excuse focuses on actus reus, and is hands down one of the hardest circumstances to prove in a trial. (Lawteacher.net, 2014) Mistake of Fact is used in trial to downplay or eliminate mens rea in a criminal act that has been committed. (Lawteacher.net, 2014) The source of this excuse is that the defendant is unaware of the law that they have broken that will charge them formally. A very popular use of mistake of fact is used in deadly force because it is based off of pure judgment which may vary from one person to another.
Recent amendments to Queensland and Federal Legislation have not solved the problem of domestic violence in Queensland, let alone Australia. Domestic violence involves both physical and emotional behaviour with the patterns of this behaviour centred on power and control for the abuser. Legislation involved in protecting women and men in a domestic violence relationship has been amended to better protect victims. On the other hand, there is an escalating social and legal issues with domestic violence within Australia. Recommendations need to be done to amend Australia legislation, to add protection to victims of domestic violence. Domestic violence is growing rapidly within Queensland and Australia and needs further change to legalisation
Domestic violence is another area that the court has decided needs special focus. This issue is very sensitive and can create higher threats against the victims involved in the cases. The Judicial Oversight Demonstration (J...
suddenly jumps in front of her and drags her into an alley. The attacker strikes (A) and rips her clothes. Fortunately, (A) hits the attacker with a rock and runs to safety. The man’s actions do not amount to assault, they amount to a battery as he dragged the woman to an alley, stroke her, and ripped her clothes off with the intent of causing her harm. The acts of the woman are a measure of self-defense, and she cannot be held accountable for the infliction she may have induced to the man. If the man just followed her without having any physical contact with her, his actions would have constituted to assault, as he would inflict fear into the
Good morning Minister of the Families I am Juliet and I will be your consultant for today. I will be outlining the aspects of the law of Domestic and family violence that has a flaw in society. I will be analysing the current laws, evaluating the effectiveness of the law, comparing these laws, making recommendations for changes in the law and justifying how the proposed changes adequately address the needs of the Australian society. Domestic violence is a violent or aggressive behaviour within the home, typically involving the violent of a spouse or partner. Domestic violence in Australia occurs in the privacy of people’s homes and it is mostly upon women that are disadvantaged.
Many legal measures have been implemented in order to achieve justice in response to the increasing amounts of domestic violence and they have been moderately effective in doing so. Over time the Commonwealth has become increasingly aware of the scope of family violence and the law has been amended in order to better protect the victims of violence. The Family Law Legislation (Family Violence and Other Measures) Amendment Act 2011 (Cth) was introduced to improve the legal systems response to family violence by providing protections for victims in order to achieve a just outcome. The Act is highly effective as it placed emphasis on the protection from harm principle, as evidenced in the case of Uysal & Mardine 2014, in order to protect children and it widened the definition of abuse to include being exposed to violence. The Act was also effective as it ensured that the courts had access to evidence relating to abuse so that it could make a just...
The Family Law Act was first considered for change as the Government felt that the original act did not deal well with family violence, this led to a National Plan being developed to reduce violence against women and their children . This plan came from an enquiry conducted by the Australian Law Reform Commission in 2010 which produced a report that provided information on Family Violence and the legal response; this included a section within this report that informed the reader on 187 recommendations for possible future reforms of the Family Law Act . The report concluded to show the need for an Amendment for the Family Law Act through research that had been conducted around violence within the home showing that men and women exper...
In the case of R v Maloney (1985), the defendant and the Victim (stepfather of the defendant), were drunk when they decided to have a contest of who can load and fire a gun more quickly. The defendant shot the victim without aiming as the victim taunted the defendant to fire the gun. Lord Bridge held ‘Foresight of consequences as an element bearing on the issue of intention in murder... belongs, not to the substantive law but the law of evidence’ (Molan, 2001: 95), oblique intent here is held ...
Just under half a million Australian women reported that they had experienced physical or sexual violence or sexual assault. Women that are personally victimized by domestic violence become emotionally unstable and they are unable to cope with certain situations. Many think that it is their fault because they think they’ve done something wrong to cause their spouse attack them. However, women aren’t the only victims when it comes to domestic violence; men are victims too. The majority of violence against men is committed by other men. Of men who reported that they had experienced physical violence, 73.7% said that the perpetrator was a male, but that doesn’t mean women don’t abuse males just as much. Women are much more sympathised than men when it comes to domestic violence. People just assume that if a male is getting physically or emotionally abused, they’re a wimp and can’t fight for themselves. Whereas if a women was the victim, people automatically blame the abuser. At least one in three victims of some type of domestic violence is
BIBLIOGRAPHY Barron et. al. 1992 WAFE Evidence to the Home Affairs Select Committee Enquiry into Domestic Violence Bristol: WAFE Woman’s Aid Federation (England) Report 1992 Hague & Malos 1995 Against Domestic Violence: Inter Agency Initiatives Bristol SAUS Punching Judy BBC Television Programme 1989 Domestic Violence – Report of an Inter Agency Working Party 1992 Mooney J 1994 The Hidden Figures: Domestic Violence in North London London Islington Police & Crime Unit Inter-Agency Circular; Inter Agency Co-Ordination to Tackle Domestic Violence Home Office, 1995 Grace S 1995 Policing Domestic Violence in the 1990’s Home Office Research Study British Crime Survey 1996 The Home Office Dobash/Dobash/Cavanagh/Lewis 1996 Research Evaluation of Programmes for violent Men Scottish Office Central Research Unit Dobash/Dobash/Cavangh/Lewis 1996 Re-Education Programmes for Violent men – an Evaluation Home Office Research Findings No 46 Domestic Violence & Repeat Victimisation Home Office Police Research Briefing Note No 1/98 The Family Law Act Part IV 1996