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LAW109 Criminal Justice
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LAW109 Criminal Justice
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Course Code: LAW109
University: Macquarie University
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Country: Australia
Question
You are asked to review and report on whether the existing criminal justice system provides adequate and appropriate limitations to criminal liability, in the form of affirmative defences or specific exceptions for different criminal offences. You are asked to reflect on modern standards and values to determine whether the current law adequately establishes the limits of acceptable behaviour.
You must select from, and confine your answer, to one of the following areas for analysis:
a) The defence of self-defence as provided in s 418-423 of the Crimes Act 1900 (NSW); orb) The partial defence of extreme provocation, contained in s 23 of the Crimes Act 1900 (NSW); orc) The common law defence of mental illness, as derived from the M’Naghten’s Rulesd) Battered Woman’s Syndrome, as discussed in case lawe) The defence of lawful correction contained in s61AA of the Crimes Act 1900 (NSW); orf) Consent as a common law ‘defence’ to assault (and the limits of this defence)g) Infanticide, as laid out in s 22A of the Crimes Act 1900 (NSW)h) The doctrine of doli incapax – capacity and the limits of criminal responsibilityi) Self-induced intoxication, under Part 11A of the Crimes Act 1900 (NSW)
Answer
Introduction:
This report includes the discussion related to the topic of Battered woman syndrome. As per this report Battered woman syndrome (BWS) is considered as mental disorder which develops in the victims of domestic violence because of the serious and long term abuse. This syndrome is dangerous in nature because it will result in learned helplessness or in some cases psychological paralysis. In these victims becomes so depressed, defeated, and passive that they believe they are not able to leave the abusive situation. Therefore, it is considered as an irrational fear which feels absolutely real to the victim. She is still under the hope that sometimes her abuser will stop hurting her and under this hope she wants to remain with her abuser which results in continuous cycle of domestic violence.
Historical background:
This concept of BWS was first raised in case law of Australia in the period of 1990s. Throughout this period BWS was discussed in many subsequent cases and also in academic article. During the period of 1970-1980, family violence began to be considered as social phenomenon and in Australia various feminist’s activities are conducted for the purpose of ensuring its legal recognition. At the end of the period of 1980, there are number of states which have introduced legislation related to civil domestic violence protection and legislation related to family violence was on their agenda.
During this period evidences related to Battered Woman Syndrome was not considered by Australian Courts. Later, Court initiating to hear the evidences from experts especially from psychiatrists and psychologists who states how women were affected from years, and whether this information is considered as relevant for the purpose of understanding the operations related to defenses and excuses.
Court determine BWS in homicide cases such as R v Whiting (unreported 27 September 1979) R v Whiting (unreported 27 September 1979), NSW Court of Criminal Appeal. This case was considered by Maxwell J in his judgment in R v Bogunovich (1985) 16 A Crim R 456, 46-461. He stated that in this case circumstances of the case attracts very considerable degree of sympathy towards the appellant but it cannot be ignored that she taken a human life, and it is considered as most dreadful crimes known to the law. It is necessary to understand the circumstances and trauma caused on her, which forced her to commit this crime then it will not considered as failure on the part of the criminal law for the purpose of taking the matter too lenient. The sentencing judge founds himself bound to consider the seriousness of the crime of taking a human life.
In this case, His Honour was concerned for the purpose of ensuring that no impression is gained from what had taken place in that matrimonial discord, even extreme level of matrimonial discord such as one is present in this case which can be the excuse for the party of victim to take the life of the aggressor. It is considered as the policy of criminal law which states that victim is not permitted by law to take law in his or her hand in any situations such as by killing the aggressor. It must be noted that there be an adequate element of deterrence for the community at large against crimes such as in present situation
Current law:
Numbers of obstacles are faced by Battered women Syndrome to rising as self-defense in homicide cases, and from these obstacles some arise related to partial defense. The essence of self-defense under this is that life of the accused or physical wellbeing’s was seriously threatened by the accuser and that victim has no legal means to defusing that threat which results in that she forced to get violent for help herself and use that much force which is necessary to remove such threat.
Now, BWS is recognized in legislation in number of states and this is used in case battered wives kill or injure their husband who abused her on continues basis. For Courts, this syndrome is considered as an indication related to state of mind of defendant or may be it is considered as a mitigating circumstance. This can be understand from example such as Court may consider that BWS women felt that she was justified in attacking her abuser, she was in reasonable fear of imminent danger because of her condition and also her experience with the abuser.
BWS is basically introduced to explain impact of repeated domestic violence on women, and this includes three stages which happened in the violent domestic relationships. First stage is of tension building in which verbal and emotional abuse takes place, and may be very small amount of physical abuse. Second stage of such relationships was considered as battering stage which is considered the most violent stage of this cycle, and lastly third stage includes loving contrition which is just one step before initiating the cycle once again.
Those women’s who are suffering BWS shows various characteristics such as they learned helplessness, in this woman is not able to defend herself, and some other characteristics includes dependence, victimization, and also lower self-esteem.
Unprecedented popularity was gained by BWS and it also gain legitimacy in the legal sphere, and this is not considered usual for psychological theories of its kind, and this has been accepted in Australian Courts from the last two decades and a half decades. This defense especially used in murder charge, but this situation is not the only one where BWS can apply and it can also be used in duress, provocation, and excessive self-defense. This defense has also been used for the purpose of finding assault charges.
Generally, it is argued that this self-defense mostly favored men who act spontaneously instead of women who are more likely to kill their abuser in a pre-emptive manner. This defense is fall under the legal definition self-defense stated in various states, territories, and commonwealth statutes.
There are number of women’s in abusive relationship who does not have any option to fight against a violent and physically strong partner, and this is the reason they choose pre-emptive strike and that is why they choose to attack their partners when they are sleeping or in any other docile state. But there is a question which states that whether any sleeping person can constitute threat which raises to self-defense. Secretary v The Queen is the case of Northern Territory, and the trial judge did not think so.
In this case, deceased man repeatedly assaulted her female partner for eight years almost. When they were back from the trip he had taken amphetamines, he drives dangerously, and also assaulted his partner and also threatened to kill her. When they reached home, deceased person said that he would have a nap and assault her again and when he was asleep then the defendant shot and killed him. At Court, trial judge stated the Jury not to consider the question related to self-defense because in this case threat could not have been imminent, but Court of Criminal Appeal found that such direction was not made by trial judge because in such circumstances it is possible that threat may be immediate and such question must be left for the jury. New trail was ordered by Court and charge related to manslaughter was reduced on prosecution.
There are number of arguments which characterized the BWS as a medical condition that is syndrome, and this can be used against the defendant in a criminal trial because it is necessary to include criteria which are necessary for successfully raising self-defense such as reasonableness.
They state the argument which highlights the symptoms of BWS which included changes in the attitude of victim and also behavior of victim, and these changes reduce the chance that actions of sufferor’s were considered reasonable by jury. Therefore, on the basis of factual situations it is advisable not to raise BWS at all in some cases.
In case R v Gadd, a defendant was convicted for murder when she stabbed her husband to death, and in this case jury does not consider any evidence which would normally be associated with BWS such as defense of helplessness and also the cycle of violence. In fact they did not consider the opinion of psychiatrist or psychologist. For this her social workers were used by her criminal defense lawyers to confirm the incidents of abuse and this strategy were turned out as winning strategy.
Aim of criminal justice:
As stated above, this concept was mention in Australian literature but discussed at very little stage, and also stated that there are number of reasons would appear which state that BWS has not been used as the grounds of self-defense by any defendants. As per the report of Tarrant from ten cases of Western Australia from the period of 1983 to 1988, this self-defense is was only used directly in two cases and indirectly in two other cases, and only in one case it was successful.
As per the Bacon, it was raised again in case of only two women by the Court. In this success related to this defense is directly relates with the circumstances of the case and also with the conformity related to events. It must be noted that lack of use of this defense is not because it is defined significantly different way in the statutes of Australia. While applying this concept Court also consider the elements of reasonable perception of danger and reasonable amount of force.
This can be understand through example such as Western Australia Criminal Code defines that when any person is unlawfully assaulted in such way that it cause harm or reasonable apprehension of death, and assaulted person believes that there is no way to save himself and assaulted person has valid justification for using deadly force against the assaulter.
Arguments for and against BWS:
Arguments in favor:
There is no difference in words, but in actual Australian Courts fail to interpret this legislation in broader manner, and they also fail to recognize the difference which is derived from gender and also impact of BWS on reasonable perception. For the purpose of self-defense, there are some cases in Australia in which provocation defense is used successfully and it results in reduction of charge from murder to manslaughter. Basically, provocation defense can act as against the introduction of self-defense at former stage, and it becomes normative in these types of cases.
In case R v Bogunovich (1985) 16 A Crim R 456; Supreme Court of New South Wales, accused pleaded guilty for manslaughter of her husband after she was charged for the murder of her husband. Court stated that evidence related to provocation on the part of deceased are sufficient and this will lead to reduce the charge of murder to manslaughter.
Both accused and her son face extreme domestic violence from the husband of accused from the period of 13 years. She was not able to leave him even after so many tries, and she is under reasonable apprehension that she would be killed by him at any time. At the night of the murder accused went to pick her husband from club and her husband was completely drunk and in the car parking he assaulted the accused physically. At that time only accused went back to the car grab a knife and stabbed him. Then accused drove herself to the police station and tell complete story to the police. A psychiatrist was called by court for getting expert evidence related to the relationship of the parties. As per the Maxwell J, he is not able to find any valid reason for imposing of custodial sentence. He also stated that he is quite satisfied with the knowledge of assault on his son, but this case is considered as special case in which judge imposed non-custodial penalty.
Court considers BWS as both pattern of violence and also psychological consequences on getting any violence. This can be understand through example in which experts in the field of domestic violence determine that being subject to repeated violence in physical, sexual, and emotional form result in specific behavior and thoughts which contribute to an increasing inability to leave the accuser.
Arguments in against:
This concept is consider as sub-type of post-traumatic stress syndrome which occurred because of being hostage from number of years, and also by facing other high stress scenario such as concentration camp internment. As stated above this syndrome is occurred in three stages in case of domestic violence relationship. This latter period tries to keep the accuser in the relationship, and also make that believe that nightmare is over but in actual nightmare is just began. The cycle continues with the stage where two violence increasing day by day.
It must be noted that approach of BWS is very narrow and it did not cover all the defendants. Generally, it can be said on the above facts that use of this defense is completely on the discretion of the Court.
Recommendations:
In this paper it is clear that BWS is introduced through legislation in NSW, and it is significant as sufficient way which shows how domestic violence in relationship can result in violent acts. But in actual while constructing the problems it is necessary to establish it as self-defense and now it is time to move on. In US broader evidence is used for the purpose of given the introduction related to evidence of battering, abuse and the effects, and this is known as social framework evidence. It must be noted that this approach is able to reduce the pitfalls which are associated with BWS, and make this approach fairer and more accessible for those defendants who are not fit under the narrow definition of BWS, and it also tries to avoid some pitfalls.
Australia can also adopt this approach and tries to make the scope of BWS wider so that other defendants can also fall under the definition of BWS.
Conclusion:
After analyzing al above facts it is clear that BWS is the good self-defense for those who are falling under the definition of BWS and accused can used this defense for the purpose of reducing the charge of murder to manslaughter. It must be noted that this defense is completely based on the approach of circumstances of the case, and Court allowed this defense if sufficient evidence of assault and domestic violence are available. However, it is necessary to increase the scope of BWS because definition of BWS is very narrow and every defendant who relates with similar circumstances is not able to use this defense.
References:
Easteal, P. Battered women who kill: a plea of self-defence. Available at: https://www.aic.gov.au/media_library/publications/proceedings/16/easteal1.pdf. Accessed on 6th May 2017.
Nedium, U. (2015). Battered Woman Syndrome: A Help or Hindrance. Available at: https://www.sydneycriminallawyers.com.au/blog/battered-woman-syndrome-a-help-or-hindrance/. Accessed on 6th May 2017.
The University of Queensland. Battered Woman Syndrome. Available at: https://law.uq.edu.au/files/5948/battered-woman-syndrome.pdf. Accessed on 6th May 2017.
R v Bogunovich (1985) 16 A Crim R 456, 46-461.
Legal Aid. Battered Woman Syndrome Evidence. Available at: https://elo.legalaid.qld.gov.au/webdocs/dbtextdocs/internal/irregseries/cle/2002/BatteredWomanSyndromEvidence.pdf. Accessed on 6th May 2017.
Bartal, F. B. Battered Wife Syndrome Evidence: The Australian Experience. Available at: https://www.britsoccrim.org/volume1/003.pdf. Accessed on 6th May 2017.
Nigam, S. (2016). Battered Women Syndrome: Applying This Legal Doctrine In The Indian Context. Available at: https://www.countercurrents.org/2016/08/06/battered-women-syndrome-applying-this-legal-doctrine-in-the-indian-context/. Accessed on 6th May 2017.
R v Bogunovich (1985) 16 A Crim R 456.
Find Law. Battered Women’s Syndrome. Available at: https://family.findlaw.com/domestic-violence/battered-women-s-syndrome.html. Accessed on 6th May 2017.
Walker, E. L. (2009). Battered Women’s Syndrome. Available at:https://www.psychiatrictimes.com/trauma-and-violence/battered-woman-syndrome. Accessed on 6th May 2017.
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