Again the MCCOC has called for its abolition. The Northern Territory legislature, however, has clearly decided that there are good reasons in the Territory not to heed this call. Provocation and diminished responsibility are called ‘partial defences’ therefore, because they reduce but do not completely eliminate an accused person’s criminal responsibility for murder.” Diminished responsibility was unknown to the common law which, in this area of mental competence or otherwise, confined itself to the defence of insanity. “Diminished responsibility” was no doubt thought suitable for borderline cases not reaching to insanity and was introduced by statute in England in 1957. 33
According to an English authority the object was: “to avoid persons not fully entitled to be acquitted on the ground of insanity suffering the capital penalty for murder. With the abolition of capital punishment for murder, the doctrine has lost much of its importance”. 10 Similarly the provision lost its importance in states and territories where capital punishment was abolished and courts were given discretion in sentencing for murder, so that diminished responsibility could be reflected in the sentence. It would still be important in the Northern Territory, since the sentence remains mandatory as imprisonment for life (s.157); although parole is possible after a 20 year period. 11 S.159 (3) provides: (3) If the defendant’s impairment is attributable in part to an underlying condition and in part to self-induced intoxication, then, for deciding whether a defence of diminished responsibility has been established, the impairment must be ignored so far as it was attributable to self- induced intoxication. However, intoxication must still be considered on any crime of specific intent, because a finding of diminished responsibility does not mean acquittal, but merely converts the finding to one of manslaughter, not murder. The jury must therefore first determine if a specific intent has been proved because if it has not been proved the accused is entitled to a complete acquittal. Only if the jury are satisfied that the offence alleged against the accused has been proved, do they then turn to the question of whether the actions of the accused may warrant a finding of diminished responsibility (for which the accused bears the onus of proof). If the Northern Territory ultimately follows the other States and Territories, and allows judicial discretion in sentencing for murder, it will then become inevitable to relegate diminished responsibility to its appropriate place as part of the sentencing process. Provocation – is a defence now relating only to the crime of murder 12 and does not involve an acquittal but only a conversion from a finding of guilty of murder to a finding of guilty of manslaughter.
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