Provocation

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Criminal Law in a Justice Environment.|
Research Assignment Provocation|
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9/12/2012|

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The following is an analytical essay that will look at how the defence of provocation operated here in Victoria prior to its abolishment in 2005, this essay will also review recommended changes to Homicide Laws made by the Victorian Law Reform Commission in its Defences to Homicide: Final Report 2004, which of these changes where acted upon and when by the Victorian Government in response to the report. The latter section of this essay will take a deeper look into the offence of homicide reviewing recent conflicting reviews and arguments in regard to either its reform or abolition using internet sources, local media discussions/interviews and relevant case files as supportive evidence for each view. IN early 18th century Lord Holt CJ in R v Mawgridge (1707) 84 ER 1107, 1114-1115 four categories of provocation were identified: 1. A grossly insulting assault.

2. Witnessing a person attacking a friend.
3. Seeing a person being unlawfully deprived of liberty.
4. Catching a man in the act of adultery with ones wife.
Historically killing a sexual rival who one caught committing an act of adultery with one’s wife was basis for the defence; however killing one’s wife for the same act was not. The focus was on the response invoked in the offender being justified due to the actions of the victim, being viewed as a violation of the offenders rights (Council, 2009). The focus shifted by the 19th century to an offender’s total loss of self control in the face of such provocation and not the wrongfulness of the victim. The view was becoming more about the probability that if a reasonable person was place in the same or similar situation would they too loose all self control? The rationale of provocation was now no longer being used as a partial justification but as a partial excuse, this change in rational was highlighted in R v Kirkham (1837) 8 CAR & P 115, 117 (Council, 2009). Justice Coleridge stated that `there are certain things which so stir up in a man’s blood that he can no longer be his own master, the law makes allowances for them [when] what he did was done in a moment of overpowering passion, which represented the exercise of reason` (Council, 2009). Victoria abolished the death penalty in 1975; this action effectively removed one of the rationales for the partial defence of Provocation. By 2004 provocation had become an excuse for killing in anger and this was morally unacceptable in today’s society, who has an expectation that people need to be able to control their anger and not kill under any circumstances even in those circumstances where they feel they have been provoked. Provocation was deemed to be gender bias when applied to homicides that related to sexual relationships, men had become accustom to using provocation as a defence by claiming their partner was unfaithful or taunted their sexual prowess driving them to commit murder, however the reality of these situations was usually one driven by jealousy and a need to control especially in cases where the victim was leaving a relationship, provocation blamed the victim and perpetuated male aggression (Commission, 2004). When James Ramage killed his wife in 2003 (R v Ramage (2004) VSC 508) his lawyer successfully argued using the partial defence of provocation that it was his wives fault she made him do it, he was found not guilty of murder but guilty of the lesser charge manslaughter, this injustice was then followed by another Heather Osland - Osland v R [1998] HCA 75; 197 CLR 316; 159 ALR 170; 73 ALJR 173 (10 December 1998) in order to remedy these injustices the VLRC compiling a list of recommendations which they presented to the government in the Defences to Homicide: Final Report 2004 which was tabled in Parliament on 18 November 2004 seven of these recommendations were key in getting the government to enact changes to the...
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