Criminal law case

Introduction

1.                  The appellant, Jill X, appeals a decision of the Supreme Court which a single judge[1] constituted

Facts

1.         Throughout the appellant’s 17-years of marriage to the deceased, she routinely suffered physical violence, resulting in dissociative identity disorder (DID) and reactive depression.  The appellant also frequently experienced physical and sexual assaults as well as taunts by Jack, the deceased, recounting past sexual abuse of their two daughters.  Prior to his death, the deceased also expressed intent to continue sexually abusing the appellant’s twodaughters.  Prior to the shooting which culminated in the death of the deceased, the appellant entered a dissociative state and regained consciousness only after the shooting occurred.

2.         The court convicted the appellant of murder, albeit, the verdict emerged amidst evidence          of sane and insane automatism, provocation and diminished responsibility.

APPELLANT’S OUTLINE OF ARGUMENT

1.      It is contended that the deceased’s provocation warrants a reduction in the offender’s culpability.  Consequently, the court should consider the extent to which the victim’s actions provided the appellant “a justifiable sense of being wronged and the relationship, or proportionality, between the offence and the provocation”.[2]  The deceased was found to have given the offender serious provocation, a criteria mandated for the case of homicide. Even though Jill obtained a restraining order against Jack, legally prohibiting him from making contact with her or their children, Jack breached the court order  on the day of his death.  Jack’s sexual and physicall assaults on Jill, compounded by Jack’s taunts that  he had not only sexually assaulted their daughters for years in the past, but planned to continue to assault them in the future contributed to the manifestation of another distinct identity of Jill’s, characterisic in DID (multiple personality disorder).  In DID, as confirmed by on expert witness for the apellant (psychiatrist) “a single individual appears to manifest two or more distinct identities, each personality alternating in control over conscious experience, thought, and action, and separated by some degree of amnesia from the other(s)”. [3]

2.      Acute or chronic stress comprises a particularly prominent factor in the dissociative disorders.  At times, a severe episode of DID, such as that Jill experienced, may replicate a form of post-traumatic stress disorder (PTSD).  Jill’s event of depersonalization occurred in response to Jack’s violence, sexual assaults, and threats of future assault contributed to psychogenic amnesia and fugue, just as regularly seen in cases of “war neurosis”. [4]

The defense of provocation only proves applicable against a charge of murder as it serves to reduce the conviction to “voluntary manslaughter.”  Voluntary manslaughter, considered more serious than “involuntary manslaughter”, comprises manslaughter “unlawful act” and by criminal negligence.[5]  At times in criminal law of commonwealth countries like Australia, the defense of mental disorder also known as the defence of mental illness depicts a legal defence by excuse.  A defendant may argue that due to the evidence of the mental illness such as DID at the time of the offense, he should not be held criminally liable for the offense. [6]In New South Wales (NSW), the law still defines manslaughter as common law.  The two categories of the offense inclulde Voluntary and Involuntary Manslaughter. Voluntary Manslaughter depicts when the accused is guilty of murder but successfully argues a partial defence like Diminished Responsibility and has his offence reduced to Manslaughter.[7]  For Involuntary Manslaughter, the Crown does not possess the obligation to prove the accused intetionally killed  the victim.   Two categories exist in Involuntary Manslaughter:  Negligent Act or Omission Causing Death and Unlawful Dangerous Act causing Death.The majority of state laws purport that provocation will encompass some conduct the defendant witnessed or experienced.  Simple gestures, fighting words and/or taunts may not prove sufficient for provocation in some states.  In Jill’s case, however, the taunts relating to sexual assault included violences as well as sexual assault for Jill with actual and threats of ongoing sexual assault for the daughters.Jill’s defense additionally alligns with the “battered woman syndrome”.  This may occur following the female experiencing a battery or assault the deceased inflicted on the defendant or a third party, albeit, not accompanied by circumstances or with the degree of force that would foster a defense of self-defense.[8]As provocation seems to enable defendants to receive more lenient treatment because they allowed themselves to be provoked, the defense typically proves controversial.  The assessment of the individual’s culpability[9] contributes to the determination of whether the individual should be held responsible for his/her actions.  Degress of culpabiloity include the following legal definitions:a.       A person acts intentionally with respect to a material element of an

      offense when:

1)      if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

2)      if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

b.      A person acts knowingly with respect to a material element of an

      offense when:

1)      if the element involves the nature of his conduct or the

       attendant circumstances, he is aware that his conduct is of that

       nature or that such circumstances exist; and

2)      if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

c.       A person acts recklessly with respect to a material element of an

      offense when he consciously disregards a substantial and unjustifiable           risk that the material element exists or will result from his conduct.      The risk must be of such a nature and degree that, considering the        nature and intent of the actor’s conduct and the circumstances known         to him, its disregard involves a gross deviation from the standard of         conduct that a reasonable person would observe in the actor’s situation.

d.      A person acts negligently with respect to a material element of an       offense when he should be aware of a substantial and unjustifiable risk     that the material element exists or will result from his conduct. The

 risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. [10]

When an individual, such as Jack, proves to be  insufficiently socialized and responds violently to any lack of respect, those in society, such as Jill require protection.[11]  At times, as in the case of Jack, the court may issue  a restraining order, forbidding him/her to approach or be within a certain distance of the one for whom the order of protection has been issues.  Any person who knowingly breaches a restraining order commits an offence, and may face the “maximum penalty – 40 penalty units or 1 [one] year’s imprisonment”.[12]  In Jill’s case, the restraining order, in a sense just as her “normal” sense of order, failed to restrain the unlawful behaviour/act.The correlation between the defences of provocation and self-defense has become controversial in Australia as well as in Canada and the U.K. when one partner or former partner kills the other individual.  Court records indicate that  a gender bias may exist, inasmuch as  men who murder their former wives or girlfriends for breaking off the relationship generally find it easy to claim provocation.  Women, on the other hand, in comparison, particularly women in abusive relationships who kill their abuser, may discover it much mofe challenging to use their abuse historhy as self-defence. To redress this perceived imbalance, based on the Victorian Law Reform Commission’s Defences to Homicide: Final Report, however, in 2005, the Victorian government purported changes to the law of homicide in that State.[13]

[1]  Criminal Code Act 1899 (Qld) s 668D(1)(a), (b). The section sets out a convicted person‘s right of appeal: ‘A person convicted on indictment…may appeal to the Court against the person’s conviction on any ground which involves a question of law alone; and…against the person‘s conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal”.[2] Felicity Steward, Arie, Freiberg, ‘Provocation in Sentencing Research Report, Sentencing Advisory Council. (2009). <http://www.sentencingcouncil.vic.gov.au/wps/wcm/connect/34398a004056a70fa408bee505682c73/Provocation_In_Sentencing_Second_Edition.pdf?MOD=AJPERES> at 03 May2010.[3] John F. Kihlstrom, para 1, “Dissociative Disorders,” University of California, Berkeley. (2007).   <http://socrates.berkeley.edu/~kihlstrm/Sutker_2001.htm> at 03 May2010.[4] Kihlstrom.[5] Provocation (legal), National Master. (2010) <http://www.statemaster.com/encyclopedia/Provocation-(legal)> at 03 May 2010.  In a number of states with Criminal Codes, like the Australian states of Queensland and Western Australia, provocation serves as a complete defense to the range of assault-based offenses.[6] Ibid. Diminished responsibility (or diminished capacity) in criminal law may comprise a potential defense by excuse by which the defendant may argue that although he broke the law, he should not be held criminally liable for the act as his mental functions were diminished or impaired.[7] Unlawful Death, Aussie Legal. (2008). <http://www.aussielegal.com.au/informationoutline~nocache~1~SubTopicDetailsID~964.htm> at 03 May 2010.

[8] Provocation.[9] Culpability, National Master, (2010) <http://www.statemaster.com/encyclopedia/Culpability)> at 03 May 2010. Culpability (Blameworthiness) is the state of deserving to be blamed for a crime or offence.

[10] Culpability, National Master, (2010) <http://www.statemaster.com/encyclopedia/Culpability)> at 03 May 2010.[11] Provocation. p. 204. A restraining order against a person means any order considered appropriate for the purpose of prohibiting particular conduct, including, for example, contact for a stated

period by the person with a stated person or the property of a stated person.[12] Criminal Code Act 1899, p. 203,  Queensland, Reprinted 15 April 2010.  <http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/CriminCode.pdf> at 03 May 2010.

[13] Ibid.