NSW Law Reform Commission DISCUSSION PAPER 31 (1993) - PROVOCATION, DIMINISHED RESPONSIBILITY AND INFANTICIDE Table of Contents Terms of reference Participants Submissions 1. INTRODUCTION BACKGROUND TO THE REFERENCE WHAT ARE THE PARTIAL DEFENCES? THE PARTIAL DEFENCES AND THE SOCIAL REALITY OF HOMICIDE OUTLINE OF THIS DISCUSSION PAPER PURPOSE OF THIS DISCUSSION PAPER SUMMARY OF OPTIONS FOR REFORM 2. RECASTING THE LAW OF HOMICIDE IN NEW SOUTH WALES THE LAW OF HOMICIDE IN NEW SOUTH WALES Brief history Categories of homicide: murder and manslaughter Other unlawful killings Sentencing for homicide REFORMING THE LAW OF HOMICIDE IN NEW SOUTH WALES Introduction One category of homicide? Implementation of one category of homicide OPTION FOR REFORM 3. PROVOCATION INTRODUCTION BRIEF HISTORY CURRENT LAW IN NEW SOUTH WALES The elements of the defence - the act of provocation The elements of the defence - the act of retaliation NSW Law Reform Commission DISCUSSION PAPER 31 (1993) - PROVOCATION, DIMINISHED RESPONSIBILITY AND INFANTICIDE Onus of proof and the role of judge and jury Provocation and offences other than murder Evidence THE DEFENCE OF PROVOCATION IN PRACTICE The prosecution process Provocation at trial Sentencing THE POSITION IN OTHER JURISDICTIONS Other Australian jurisdictions - the Code States Other Australian jurisdictions - the common law States England Ireland New Zealand Canada The United States India European jurisdictions OPTIONS FOR REFORM OPTION ONE: RETAIN THE DEFENCE WITHOUT AMENDMENT Implementation Other recommendations to this effect OPTION TWO: ABOLISH DEFENCE Implementation Other recommendations to this effect OPTION THREE: REFORMULATE DEFENCE Implementation and other similar recommendations DISCUSSION OF THE OPTIONS Should there be a provocation defence in one form or another or should it be abolished? Should the provocation defence be retained in its current form? NSW Law Reform Commission DISCUSSION PAPER 31 (1993) - PROVOCATION, DIMINISHED RESPONSIBILITY AND INFANTICIDE 4. DIMINISHED RESPONSIBILITY INTRODUCTION BRIEF HISTORY CURRENT LAW IN NEW SOUTH WALES The elements of the defence Issues of proof Diminished responsibility and the defence of mental illness THE DEFENCE OF DIMINISHED RESPONSIBILITY IN PRACTICE Guilty pleas The role of the jury Sentence THE POSITION IN OTHER JURISDICTIONS Other Australian jurisdictions New Zealand England Canada The United States Singapore European jurisdictions OPTIONS FOR REFORM OPTION ONE: RETAIN DEFENCE WITHOUT AMENDMENT Implementation Other recommendations to this effect OPTION TWO: ABOLISH DEFENCE Implementation Other recommendations to this effect OPTION THREE: REFORMULATE DEFENCE Other recommendations to this effect Implementation NSW Law Reform Commission DISCUSSION PAPER 31 (1993) - PROVOCATION, DIMINISHED RESPONSIBILITY AND INFANTICIDE DISCUSSION OF THE OPTIONS Should the defence of diminished responsibility be retained in one form or another or should it be abolished altogether? Should the defence of diminished responsibility be amended? 5. INFANTICIDE INTRODUCTION BRIEF HISTORY CURRENT LAW IN NEW SOUTH WALES Elements of infanticide INFANTICIDE LAW IN PRACTICE Offending, charging and conviction patterns Sentence The role of the expert witness THE POSITION IN OTHER JURISDICTIONS Other Australian jurisdictions England New Zealand Canada European jurisdictions OPTIONS FOR REFORM OPTION ONE: RETAIN OFFENCE/ DEFENCE WITHOUT AMENDMENT Implementation Other recommendations to this effect OPTION TWO: ABOLISH OFFENCE/ DEFENCE Implementation Other recommendations to this effect OPTION THREE: REFORMULATE THE OFFENCE/ DEFENCE OF INFANTICIDE Implementation Other recommendations to this effect DISCUSSION OF THE OPTIONS NSW Law Reform Commission DISCUSSION PAPER 31 (1993) - PROVOCATION, DIMINISHED RESPONSIBILITY AND INFANTICIDE Should infanticide be retained in one form or another or should it be abolished altogether? Should the offence/defence of infanticide be amended? SELECT BIBLIOGRAPHY NSW Law Reform Commission DISCUSSION PAPER 31 (1993) - PROVOCATION, DIMINISHED RESPONSIBILITY AND INFANTICIDE TERMS OF REFERENCE On 17 March 1993, the Attorney General, the Hon John P Hannaford, MLC, gave the New South Wales Law Reform Commission the following terms of reference: to review the partial defences of infanticide, provocation and diminished responsibility under s 22A, 23 and 23A of the Crimes Act 1900 (NSW) respectively; to develop proposals for reform and clarification of the substantive elements of the defences. PARTICIPANTS The Law Reform Commission is constituted by the Law Reform Commission Act 1967. For the purpose of this reference, the Chairman, in accordance with the Act, created a Division comprising the following members of the Commission: The Hon R M Hope QC (until 2 April 1993) The Hon G J Samuels QC (from 3 April 1993) Professor David Weisbrot Professor Brent Fisse Ms Jane Stackpool Officers of the Commission Executive Director Mr Peter Hennessy Research and Writing Ms Ronnit Lifschitz Librarian Ms Beverley Caska Desktop Publishing Ms Julie Freeman Cover Design Ms Stephanie East Ms Julie Freeman Administrative Assistance NSW Law Reform Commission DISCUSSION PAPER 31 (1993) - PROVOCATION, DIMINISHED RESPONSIBILITY AND INFANTICIDE Ms Zoya Howes Honorary Consultant Mr Mark Ierace SUBMISSIONS The Commission invites submissions on the issues raised in this Discussion Paper. Submissions and comments should reach the Commission by 29 October 1993. Suggestions for further issues which should be considered are welcome. All enquiries and submissions should be directed to: Mr Peter Hennessy Executive Director New South Wales Law Reform Commission GPO Box 5199 SYDNEY NSW 2001 [DX 1227 SYDNEY] Ph: (02) 9228 8230 Fax: (02) 9228 8225 Who can make a submission? Anyone may make a submission or comment. If you have an opinion on the matters under review or personal experience of the issues involved the Commission would like to hear from you. You do not need legal qualifications to make a submission although the Commission welcomes input from the legal community. Use of submissions and confidentiality Submissions may be used by the Commission in two ways: 1. Because the law reform process is a public one, copies of submissions are normally made available by the Commission on request to other persons or organisations. If you would like your submission to be treated as confidential, please indicate this in your written submission or oral comments. Any request for a copy of a submission marked “confidential” will be determined in accordance with the Freedom of Information Act 1989 (NSW). 2. In preparing its Report the Commission will make reference to submissions made in response to this Discussion Paper. However a request for confidentiality will be respected by the Commission in relation to the publication of submissions. Thus, if you would like your submission to be treated as confidential, please indicate this on your written submission or when making oral comments. NSW Law Reform Commission DISCUSSION PAPER 31 (1993) - PROVOCATION, DIMINISHED RESPONSIBILITY AND INFANTICIDE 1. Introduction BACKGROUND TO THE REFERENCE 1.1 Over the years there have been numerous criticisms of the so-called “partial defences” by judges, academics, practitioners and law reformers. In the recent case of R v Chayna,1 his Honour Justice Murray Gleeson, the Chief Justice of New South Wales, called for reform of the defence of diminished responsibility. In that case the differing expert opinions of seven psychiatrists highlighted the difficulties for the jury in the application of the defence. Accordingly, the Attorney General, on 17 March 1993, referred the matter to the Commission along with terms of reference covering the other partial defences for which statutory provision is made in the Crimes Act 1900 (NSW).2 WHAT ARE THE PARTIAL DEFENCES? 1.2 The existing partial defences - infanticide, provocation and diminished responsibility - operate to reduce a person’s liability for an unlawful homicide from murder to manslaughter. The defences are “partial” in the sense that they do not operate to deliver an outright acquittal (that is, to exculpate fully), as is the case with the other “complete” defences, such as duress and self-defence. In addition to operating as a partial defence, infanticide also constitutes a substantive offence that may be charged from the outset. 1.3 It is critical to be aware of the historical context in which the partial defences emerged. When these defences were judicially developed (provocation) or were enacted (diminished responsibility and infanticide) the penalty for murder was either death or a mandatory life sentence. The partial defences operated to reduce the charge from murder to manslaughter, thus offering the sentencing judge some flexibility to fashion an appropriate punishment based on the circumstances of the particular case. This situation no longer pertains in New South Wales. The death penalty was abolished in this State in 19553 and the mandatory life sentence for murder in 1982.4 Since 1989 there is no longer even a presumption that a life sentence will be imposed for murder.5 It is important to consider the partial defences in this context because it may be that, with their original rationale gone, they are no longer necessary. THE PARTIAL DEFENCES AND THE SOCIAL REALITY OF HOMICIDE 1.4 Chapters 3, 4 and 5 present the “black letter law” view of the partial defences. This is, however, only a small part of the overall picture. Recent investigations into the law