Victoria's New Defense to Homicide Laws

explanatory Essay
1369 words
1369 words

Since the abolishment of provocation, Victoria’s defensive homicide laws have been viewed as more equal and accessible. Although they are criticized in some aspects, the defensive homicide laws that New South Wales hold are viewed as outdated and gender-bias, therefore leading to the conclusion that Victoria should retain its current law, instead of favoring that in NSW.

Prior to 2005, Victoria and NSW shared similar defences to homicide, including that of provocation. However, due to the highly contentious nature of provocation, it was abolished in Victoria through the introduction of the Crimes (Homicide) Act (amendment the Crimes Act ), which introduced a new defense of self-defense, and created a new offence, defensive homicide .
A Defences in Victoria: Prior to 2005
1 Provocation
Provocation existed under common law in Victoria until 2005, as a partial defence to murder. Under this principle, if the accused had fulfilled all of the elements of murder

but presented a reasonable possibility that they had been ‘provoked’, they would be convicted of manslaughter instead . Provocation could only operate in a case if the defendant’s intention to kill was not pre-meditated; intention cannot have been formed before the provocative incident .
For provocation to be found, the jury needed to be satisfied that the following three requirements had been met :
1) there must be sufficient evidence of provocative conduct;
2) the accused must have lost self-control as a result of the provocation;
3) the provocation must be such that it was capable of causing an ordinary person to lose self-control and act in a manner which would encompass the actions of the accused ...

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Daniel Fogarty, ‘Failed Vic Defensive Homicide Law to Go’, The Australian (Sydney), 6 October 2013; Kate Fitz-Gibbon, ‘Abolishing Defensive Homicide Offence Essential’, The Age (Melbourne) 4 October 2013.
Gail Hubble, ‘Feminism and the Battered Woman: The Limits of Self-Defense in the Context of Domestic Violence’ (1997) 9(2) Current Issues in Criminal Justice 113, 114-115.
Department of Justice, Review of the offence of Defensive Homicide: Discussion Paper (2010) 33, 120.

Kate Fitz-Gibbon, Abolishing Defensive Homicide will Benefit Female Victims and Offenders (4 October 2013) Criminology@Deakin criminology/abolishing-defensive-homicide-will-benefit-female-victims-and-offenders/>. Kate Fitz-Gibbon, ‘Provocation in New South Wales: The Need for Abolition’ (2012) 45(194) Australian & New Zealand Journal of Criminology 194.

In this essay, the author

  • Explains that victoria's defensive homicide laws have been viewed as more equal and accessible since the abolishment of provocation.
  • Explains that victoria and nsw shared similar defences to homicide, including that of provocation, but it was abolished in victoria through the introduction of the crimes (homicide) act.
  • Explains that the provocation must be such that it could cause an ordinary person to lose self-control and act in a manner which would encompass the actions of the accused.
  • Explains that nsw retains the defence of provocation, despite controversy surrounding the issue, while victoria now has the defense of self-defence and the new sentence of defensive homicide.
  • Explains that self-defence is a complete defence for murder if all the required conditions are satisfied.
  • Explains that nsw currently has three partial defences to murder, that of provocation, substantial impairment and excessive self-defence. they recognize and make a concession for human frailty.
  • Explains that provocation operates in a similar manner to that which previously operated in victoria, with the same principles needing to be considered to give an verdict of manslaughter.
  • Explains that substantial impairment operates in cases where the accused suffers from a mental impairment not severe enough to raise the defence of mental illness but still substantially impairs the offender at the time of the homicide.
  • Opines that victoria's new defence to homicide laws haven't necessarily been seen as effective, but they are viewed as a fairer and modern defence.
  • States that the victorian law reform commission, defences to homicide: final report, report no 94 (2004), 23 [2.8].
  • Explains kellie toole's book, "self-defence and the reasonable man: equality before the new victorian law".
  • States judicial commission of nsw (2006) partial defences to murder in new south wales 19902004, 52.
  • Opines that kate fitz-gibbon, ‘provocation in new south wales: the need for abolition’ (2012) 45(194) australian & new zealand journal of criminology 194.
  • Explains that provocation existed under common law in victoria until 2005, as a partial defence to murder. provocation could only operate if the defendant's intention to kill was not pre-meditated.
  • Explains that provocation is a defence that has been in existence since the 16th century, and was developed due to the existence of the death penalty.
  • Explains that victoria's defences for homicide were altered from common law to statute following the introduction of the crimes (homicide) act in 2005.
  • Explains that the question to be asked in zecevic v director of public prosecutions is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did.
  • Explains that defensive homicide was created with the intention of providing a fairer sentence for women who kill within an abusive relationship.
  • Explains that although the abolition of provocation in victoria was successful, the replacement offered has been much criticized since it entered into existence.
  • Cites elizabeth a sheehy, julie stubbs, and julia tolmie's book, 'defending battered women on trial'.
  • Explains kate fitz-gibbon and sharon pickering's book, "homicide law reform in australia: from provocation to defensive hominicide and beyond."
  • Cites fogarty, fitz-gibbon, and hubble on the subject of domestic violence. department of justice, review of defensive homicide.
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