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Where am I now? Lawlink > Law Reform Commission > Publications > Discussion Paper 31 (1993) - Provocation, Diminished Responsibility and Infanticide

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
    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?

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
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
    Should infanticide be retained in one form or another or should it be abolished altogether?
    Should the offence/defence of infanticide be amended?

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