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 Although they are criticized in some aspects, the defensive homicide laws that New South Wales hold are viewed as outdated and gender-bias, therefore leading to the conclusion that Victoria should retain its current law, instead of favoring that in NSW.
II DEFENCES TO HOMICIDE IN VICTORIA: PRIOR TO 2005
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
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 ...
... middle of paper ...
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
Kate Fitz-Gibbon, ‘Provocation in New South Wales: The Need for Abolition’ (2012) 45(194) Australian & New Zealand Journal of Criminology 194.
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