Introduction
In New South Wales, the accused convicted of murder may have his or her charges reduced to voluntary manslaughter if his or her mental state was affected in such a way as recognised by the law to reduce his or her culpability for the killing. Such mitigating factors must be proven to constitute provocation, substantial impairment, excessive self-defence or infanticide, as stated in the Crimes Act. These are known as partial defences to murder.
There has been much controversy over the development of partial defences. Historically, partial defences were first established as a justification for murder to avoid the death penalty. However, since capital punishment has been abolished in every state, we now question whether there is still a need for partial defences. While there have been benefits from the introduction of such partial defences, many have argued for the complete elimination of partial defences and to replace the murder-manslaughter dichotomy with a single category of homicide.
In order to determine which partial defences should be recommended for abolishment, certain criteria must be raised. Firstly, partial defences that may lead to inconsistency in the law should be abolished. Inconsistency may arise due to the imprecise definition of elements of the defence, in particular an “abnormality of the mind” in the substantial impairment defence. Inconsistency may also arise when the test used is conceptually complex, as in the provocation defence. Secondly, partial defences that provide for a wide range of conduct should also be abolished to avoid too many people getting away with murder. Based on these criteria, the two defences that should be considered for abolishment are the provocation and substantial impairment defences.
Provocation
The defence of provocation reduces liability from murder to manslaughter if the jury finds that the killing resulted from a loss of self-control in response to provocation. According to s23 of the Crimes...