Table of Contents
Terms of reference
Participants
Summary of recommendations
1. INTRODUCTION
OVERVIEW
THE COURSE OF THE REFERENCE
SUMMARY OF REPORT 82
LEGISLATIVE ACTION SINCE REPORT 82
OUTLINE OF THIS REPORT
The defence of provocation
The offence/defence of infanticide
2. THE DEFENCE OF PROVOCATION
INTRODUCTION
OPERATION OF THE DEFENCE OF PROVOCATION
The current law of provocation in New South Wales
Conflicting rationales of the defence: the Commission’s approach
RETENTION OF THE DEFENCE OF PROVOCATION
REFORMULATION OF THE DEFENCE OF PROVOCATION
THE ORDINARY PERSON TEST OF PROVOCATION
The gravity of the provocation
The ordinary person’s power of self-control
The ordinary person’s response after losing self-control
Criticisms of the ordinary person test
Support for the ordinary person test
Suggestions for reform
Conclusion
CONDUCT AMOUNTING TO PROVOCATION
Conduct occurring outside the accused’s presence
Provocation not induced by the victim
Lawful conduct
Self-induced provocation
Conduct of women as victims of provoked killings
Non-violent homosexual advance
ACTUAL LOSS OF SELF-CONTROL
SCOPE OF THE DEFENCE
THE COMMISSION’S REFORMULATION
The ultimate issue
Belief based on reasonable grounds
Overlap with the defence of diminished responsibility
Application to female offenders
Self-induced intoxication
PROCEDURAL ISSUES
Compulsory defence disclosure
Questioning the jury on the basis of a manslaughter verdict
3. INFANTICIDE
INTRODUCTION
CURRENT OPERATION OF INFANTICIDE
ABOLITION OF INFANTICIDE
Arguments for abolishing infanticide
Availability of the defence of diminished responsibility
Unsoundness of medical basis
Unsoundness of ideological basis
The restrictive nature of the infanticide provisions
Arguments for retention
Advantages of retaining a gender-specific offence/defence
Procedural advantages
Sentencing disparities
APPENDIX A: SUBMISSIONS RECEIVED
TABLE OF LEGISLATION
TABLE OF CASES
SELECT BIBLIOGRAPHY
INDEX
