NCJ Number
81567
Date Published
1982
Length
47 pages
Annotation
This report discusses legislative recommendations for Australia regarding provocation and diminished responsibility as murder defenses.
Abstract
Provocation may be a defense for a murder charge, but if successful, it does not yield acquittal but a reduction to a manslaughter charge. Provocation as a ground for murder denotes more than ordinary anger as the provocation for a killing. It is anger or passion which overcomes a person's self-control to such an extent that reason is overpowered. The following recommendations are offered for the provocation defense: (1) the objective test in provocation should be abolished by an amendment to the Crimes Act of 1958 and the jury directed to consider only whether the accused was genuinely provoked to lose the power of self-control, (2) the provocation may be caused by things done or said or by both together, and (3) lawful arrest or imprisonment should not amount to provocation under law. Diminished responsibility is a defense available in some jurisdictions when a person charged with murder has some form of mental disorder, transient or otherwise, but who is not insane in the legal sense. If it succeeds, a verdict of manslaughter is returned. The following recommendations are presented with regard to this defense: (1) diminished responsibility should be accepted as a partial defense to a murder in Victoria; (2) the maximum sentence for manslaughter should be increased to life imprisonment, (3) the persuasive burden of proof in diminished responsibility should be on the Crown, (4) provision should be made enabling a magistrate's court to commit for manslaughter by reason of diminished responsibility if the defendant consents or has been committed for trial on a murder charge, and (5) a category of crime of attempted manslaughter by reason of provocation and diminished responsbility should be established. Ninety-two footnotes are listed.