That " Provocation " defence !

Nothing is certain when it comes to interpreting the law and the actual framing of charges rests in the hands of the Department of Public Prosecutions ( DPP ).  In many cases, an offender goes to court charged with a lesser crime than public expectations and consequently may only attract the penalty for that diminished offence if found guilty.

Two recent criminal cases in New South Wales courts have thrown the spotlight on the defence of " provocation " in what many would consider should be trials for murder.   In each of these, the DPP has agreed to reduce the charge faced - to " manslaughter ".

In one case it involved a much older man attacking his young wife with a knife and inflicting fourteen wounds, resulting in a fatality.  He claimed he was provoked because his wife " questioned his manhood ".   This seems to verge into the arena of " honour killings ", but the court had no option other than to conduct the trial for a manslaughter verdict because that was the only charge offered by the DPP.

In another case the offender claimed that his wife " provoked him into losing self control " when she threatened to leave the marriage.  Once again, the decision of what charge to lay rested with the DPP and did not allow the court to decide whether this action constituted murder or manslaughter.

" Provocation " certainly should be an issue that a court can consider where a death has occurred but it seems that this decision is being made in the offices of the prosecution.   The courts can only conduct a trial according to the charge laid and there has been public pressure for the " provocation " issue to be clarified and the matter of murder or manslaughter returned to the court to be decided.

When an offender is charged with murder, the court has the power to disagree and return a verdict of not guilty to murder, but guilty of manslaughter.   When the charge is only manslaughter, that power of decision is removed and a decision can only be made on the lesser charge.

Any change to the law requires navel gazing to determine what unforeseen outcomes may arise and this matter has lingered in the New South Wales parliament for some time.  Pressure is building to restore the decisive power of the courts to take account of the entire circumstances of any action before the courts rather than the narrow version presented by the prosecution.

Anything less seems a strange perversion of - justice !