Battered Women, Startled Householders and Psychological Self-Defence: Anglo-Australian Perspectives

2013 ◽  
Vol 77 (5) ◽  
pp. 433-457 ◽  
Author(s):  
Nicola Wake
Keyword(s):  
Criminal Justice ◽  
Battered Women ◽  
New South ◽  
New South Wales ◽  
Self Control ◽  
Loss Of Control ◽  
Loss Of Self ◽  
South Wales ◽  
Self Defence

This article provides a timely and critical reappraisal of the interconnected, but discrete, doctrines of loss of self-control, under ss 54–56 of the Coroners and Justice Act 2009, and self-defence within s. 76 of the Criminal Justice and Immigration Act 2008. The loss of control conceptualisation renders it difficult for defendants to claim the partial defence where exculpatory self-defence has been rejected, and fear of serious violence is adduced. This doctrinal incoherence has been exacerbated by the fact that s. 43 of the Crime and Courts Act 2013 effectively legitimises the use of disproportionate force in self-defence, but only in ‘startled householder’ cases. A more appropriate avenue of reform is provided by developments in Australian jurisdictions. This comparative extirpation engages the introduction of a new partial defence of self-preservation/psychological self-defence predicated on the notion of excessive utilisation of force in self-defence as in New South Wales, supplemented with a ‘social framework’ provision, akin to that in Victoria. The new defence would avoid the problems associated with requiring the abused woman to establish a loss of self-control and/or affording an affirmative defence in ‘startled householder’ cases.

scholarly journals The role of loss of self-control in defences to homicide: a critical analysis of Anglo-Australian developments

2021 ◽  
Vol 72 (2) ◽  
Author(s):  
Heather Douglas ◽  
Alan Reed
Keyword(s):  
New South ◽  
Self Control ◽  
Law Reform ◽  
Abused Women ◽  
Loss Of Control ◽  
The Past ◽  
Loss Of Self ◽  
South Wales ◽  
The Subject

The provocation defence has been the subject of legislative reform in England and Australia over the past 10 years. In England, it was abolished by section 56 of the Coroners and Justice Act 2009 and replaced with a partial defence of loss of control. In Australia, the provocation defence has been abolished in some states and significantly reformed in others. One of the key challenges for law reform has been how to ensure homicide defences are not overly restrictive for abused women who kill their abuser, while at the same time ensuring that homicide defences are not overly expansive for domestic abusers who ultimately kill their partner. With these challenges in mind, we critically examine the operation of the loss of control defence in England. There has been significant reform to the provocation defence across Australia, and, in this article, we also focus on the most recent reforms in Queensland and New South Wales. We conclude with some suggestions for further reform.

scholarly journals Imposed Stories: Prisoner Self-narratives in the Criminal Justice System in New South Wales, Australia

2016 ◽  
Vol 5 (1) ◽  
pp. 38-51 ◽  
Author(s):  
Maggie Hall ◽  
Kate Rossmanith
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
New South ◽  
New South Wales ◽  
Ethnographic Fieldwork ◽  
South Wales

This article examines the ways in which offenders are required to provide very particular accounts of themselves and to self-narrate in confined ways. Drawing on ethnographic fieldwork and interviews conducted in the New South Wales justice system, it explores how the stories that offenders are made to accept and tell about themselves often bear little relationship to their own reflections. It analyses how, despite the expectations of judges and prison authorities, these self-narratives are not products of an offender’s soul-searching concerning his past actions and experience; rather they are products of an official legal narrative being imposed on an offender whose capacity to own and enact such a narrative is already seriously compromised.

scholarly journals Dealing With Radicalised Youth Offenders: The Development and Implementation of a Youth-Specific Framework

2022 ◽  
Vol 12 ◽  
Author(s):  
Steven Barracosa ◽  
James March
Keyword(s):  
At Risk ◽  
Criminal Justice ◽  
Case Management ◽  
New South ◽  
New South Wales ◽  
Lessons Learned ◽  
Youth Offenders ◽  
Youth Justice ◽  
South Wales ◽  
Violent Extremism

Background: In 2018 in the Australian State of New South Wales, a specialist Countering Violent Extremism Unit was established in the youth criminal justice system. This was in direct response to a number of youth below the age of 18 who have been charged for terrorism offences and identified as involved in violent extremist acts. This youth-specific framework was the first of its kind in Australia. It was designed to provide multidisciplinary practitioner-based approaches for the early-identification, diversion, and disengagement of at-risk and radicalised youth offenders.Aims: This paper will explore the experiences and lessons learned by the Youth Justice New South Wales Countering Violent Extremism Unit. It will discuss the relevance of youth radicalisation within Australia's evolving national security climate. This includes emerging trends in relation to youth radicalisation to varied violent extremist ideologies. This paper will explore the specialist approach adopted for preventing and countering violent extremism through the identification, assessment, and case management of at-risk and radicalised youth offenders.Implications: The Youth Justice New South Wales experience indicates that youth criminal justice settings can be designed to tackle the challenges posed by at-risk and radicalised youth. The practitioner experience canvassed in this paper highlights that a pluralistic and non-punitive approach to supervision, client-focused assessment and case management processes, and widespread resourcing of multidisciplinary practitioners and programs can be used to account for developmental and psychosocial vulnerabilities in addition to violent extremism risk factors amongst youth offenders. These approaches should be supplemented by youth-specific countering violent extremism practitioner expertise, and a range of violent extremism case management and risk assessment measures.

scholarly journals Fourteen-Year Trends in the Criminal Justice Response to Child Sexual Abuse Reports in New South Wales

2019 ◽  
Vol 25 (1) ◽  
pp. 85-95 ◽  
Author(s):  
Judith Cashmore ◽  
Alan Taylor ◽  
Patrick Parkinson
Keyword(s):  
Sexual Abuse ◽  
Criminal Justice ◽  
New South ◽  
New South Wales ◽  
Criminal Proceedings ◽  
Sexual Offenses ◽  
South Wales ◽  
Lower Courts ◽  
Criminal Justice Response ◽  
Alleged Victim

This study of attrition compares the prosecution of child sexual offenses reported while the complainant was still a child with those in which the report was delayed into adulthood; it also compares matters involving adult and young (under 18 years) suspects/defendants. It is based on an analysis of police and court administrative data in New South Wales, Australia over a 14-year period (2003–2016). Only one in five (21.6%) proceeded beyond the investigation stage. Criminal proceedings were more likely to commence when the alleged victim was 7–12 years old at the time of the incident, when the suspect was an adult and at least 10 years older than the victim, and also when the report to police was made when the victim was an adult. Just over half (55.5%) of the matters finalized in court resulted in a conviction. Cases in the higher courts were less likely to be dismissed and more likely to feature guilty pleas and convictions at trial than cases in the lower courts. The overall estimate is that only 12% of offenses reported to police resulted in a conviction, at a relatively stable rate over 14 years. These findings are consistent with those of comparable studies.

The homosexual advance defence in Australia: An examination of sentencing practices and provocation law reform

2018 ◽  
Vol 51 (4) ◽  
pp. 576-592
Author(s):  
Rebecca McGeary ◽  
Kate Fitz-Gibbon
Keyword(s):  
New South ◽  
New South Wales ◽  
Self Control ◽  
Law Reform ◽  
High Court ◽  
Lethal Violence ◽  
Legal Response ◽  
South Wales ◽  
High Court Of Australia ◽  
Judicial Treatment

In May 2015, the judgment of the High Court of Australia in Lindsay v The Queen reignited debate surrounding the use of the partial defence of provocation in cases involving a non-violent homosexual advance. Lindsay re-established the legal possibility that a man provoked enough to lose self-control and commit lethal violence in response to a non-violent homosexual advance could be convicted of manslaughter by reason of provocation rather than murder. The judgment arrived in the midst of two decades of national law reform activity, whereby all Australian jurisdictions have either introduced or proposed reform to abolish or restrict the application of the controversial partial defence of provocation. In doing so, cases involving a homosexual advance defence are increasingly shifting to the realm of sentencing. This article offers a timely analysis of the sentencing of homosexual advance defence cases in New South Wales and Queensland. In doing so, it examines the judicial treatment of a defendant’s claim of a ‘special sensitivity’ to a homosexual advance, problems arising from the private nature of an alleged homosexual advance and the treatment of intoxication in sentencing. It reveals that reform of legal categories alone may not be sufficient in ensuring a just legal response to homicides incited by alleged homosexual advances.

scholarly journals Irish Convict Transportation and the Reach of the State in Late Hanoverian Britain

2006 ◽  
Vol 8 (1) ◽  
pp. 61-85
Author(s):  
Simon Devereaux
Keyword(s):  
Eighteenth Century ◽  
Criminal Justice ◽  
New South ◽  
New South Wales ◽  
The State ◽  
Leeward Islands ◽  
Cape Breton ◽  
South Wales ◽  
Convict Transportation ◽  
British State

Abstract The difficulties encountered by English authorities in resuming the regular and effective transportation of convicts overseas between the loss of the original American destination in 1775 and the opening of a penal settlement in New South Wales in 1787 are well known to historians of criminal justice. Far less so is the contemporaneous convict crisis in Ireland. This article considers the practice of convict transportation from Ireland throughout the eighteenth century. In particular, it examines a series of three dramatic incidents of the late 1780s in which Irish convicts were unscrupulously (though not illegally) abandoned in Cape Breton, Newfoundland and the Leeward Islands. It argues, first, that such practices were not entirely surprising given the great difficulties that had often been experienced in transporting convicts from Ireland even before 1775. It goes on to suggest that the subsequent decision of authorities in London to assume a directive role in the transportation of Irish convicts was informed by changing perceptions of the British state in both its national and imperial dimensions.

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