The Criminal Law

Defence Options

First Defence

The first defence measure that the council representing David needs to adopt is that the defendant is schizophrenic according to his doctor, who has prescribed medication. It means that at the time of the offence, David was not in his right state of mind and did not know what he was doing, providing that he had not taken the drugs prescribed. Schizophreniais a mental disorder that is common in the late teens and among people at their early adult stage (“Schizophrenia,” n.d.). The condition makes victims unable to think clearly, distinguish real from unreal situations, manage emotions, properly relate to others, and function normally. It affects the way an individual acts and thinks, since it changes the person’s perception of reality to an extent of losing contact with it. People with such conditions suffer from such symptoms as delusions, whereby they believe that others are trying to hurt them, and hallucinations, whereby they see or hear imaginary things that do not exist and speak in abnormal or confusing ways. Schizophrenic individuals also exhibit a bizarre behaviour, unable to logically and sensibly negotiate in their daily life activities (“Schizophrenia,” n.d.). These characteristics of a schizophrenic person revealed that David was mentally abnormal at the time of murder. The law also demands that any defendant of such magnitude should be medically and mentally examined whether he is fit for trial. Otherwise the latter should be declared unfit for prosecution. Under this jurisdiction, David is unfit for trial and should be acquitted. The defence needs to obtain a mental report from the defender’s professional doctor, who has declared him schizophrenic as an exhibit in court. If possible, the doctor has to testify before court to enlighten on the condition and the significant connection between schizophrenia and violence. 

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The court also needs to note that Josephine was fully aware of the offender’s medical and mental condition and would have encouraged him to take his medication instead of provoking through being late and telling that she had never loved him and was already dating with Len. The knowledge includes being aware of his inability to control emotions and think normally. People with such conditions as the one of David can live normally when given support and under medication. However, the defendant was lacking it in this case.

Second Defence

Provocation is a legal defence usually used in cases, where after provocative actions of the assaulted victim, the defendant loses self-control and commits a violent crime. In some occasions, violence can be a result of extreme anger or jealously. Provocation can be used to win an acquittal or as a partial defence to reduce a sentence of a person convicted of murder or manslaughter depending on the system of law (Regina, 1992). It is important to note that in the UK, the defence of provocation is only allowed as partial in relation to murder and can only reduce the conviction to manslaughter. In case the prosecution or jury admits the defence, it leads to a manslaughter conviction, which is less serious than murder (Victorian Law Reform Commission, 2004). The present legal version of the defence in New South Wales (NSW) applies in two cases: a) if the violent act causing death is instigated by the loss of restraint by the defendant as a result of the conduct of the victim; and b) if that similar conduct of the deceased could have prompted an ordinary individual in the same condition as the one of the defendant to lose self-control to an extent of forming an intent to fatally hurt or kill the deceased (Roth & Blayden, 2012). An intent in this case involves having the objective, purpose and desire to kill. In this regard, the defence should note that the intent of David was not to kill the wife, due to it was indicated that prior to the arrival of the wife he was cooking a special meal for a quiet wedding anniversary evening. It proves that it was only a reaction to stop the wife from a further assault.

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With reference to the Judicial Commission Report of NSW, the use of provocation defence between 1990 and 2004 was raised in 115 cases and was successful in 75 cases. The report indicated that eleven male defendants successfully used the provocation defence under infidelity circumstances. One such case was Singh v. R, where Mr Singh was charged with murder (Roth & Blayden, 2012). In the case, he was reported to have moved to Australia to join his wife based on a particular visa, after his wife had moved based on a student visa. Unfortunately, their relationship started to degenerate upon his arrival, and during a dispute, Mr Singh strangled his wife to death and cut her throat more than eight times by means of a Stanley knife. According to the defendant, during the encounter and argument, his wife slapped him numerous times and told him that she had never loved him, but loved another man. The wife further told him that she would ensure that Singh would be extradited from the country. The defendant was convicted of manslaughter, but not murder on the basis of provocation, and sentenced to eight years of imprisonment with a non-parole period of six years (Roth & Blayden, 2012). This case is identical to the charge against David provoked by the wife. She came back late and worst of all told her husband that she no longer loved him, had a new lover, Len, whom she had been seeing for the last six months, and would leave David within a week. Based on this level of provocation, David’s defence team needs to fully pursue the provocation defence in order to reduce the charge from murder to manslaughter.

Functions of the Jury

It is the responsibility of the jury to ensure that the defendant’s right to legal representation is guaranteed, even if it means assigning him a state counsel as required by the law. The judge also has the responsibility to ensure that a medical report from a professional psychiatrist has been obtained to prove whether David is mentally sane to be tried in the court of law. Considering the evidence and defence discussed in court, it is the function of the judge to decide whether there is adequate evidence of provocation to be left to the jury to determine based on the interpretation of the time interval between the physical reaction of the defendant and the provocative conduct of the deceased. It is due to the provocation defence is majorly applied when the provocative conduct is instantly followed by a reaction. Conversely, the interval of time between provocation and later reaction may be interpreted as planned, purposeful, and based on clear motives, such as punishment or revenge, which is inconsistent with the claim of the loss of self-control that results into the provocation defence. It is the responsibility of the judge to apply the proof rule beyond reasonable doubt before any sentence. 

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The murder charge facing David after killing his wife presupposes heavy penalties, such as death or life imprisonment. However, based on the rule of law, the suspect is deemed innocent until proven guilty. In this regard, it is the criminal procedure and burden of the prosecution to prove the guilt of the offender beyond any reasonable doubt (Tomasson, 2012). One defence line that David’s counsel needs to adopt is the schizophrenic mental condition diagnosed by his doctor, a disorder that makes a person unable to control emotions and generally mentally abnormal. It means that at the time of the offence, David was not in his right state of mind and did not realize what he was doing, providing that he had not taken the drugs prescribed. Another defence line was that Josephine was fully aware of the offender’s medical and mental condition and should have not provoked him, but instead should have encouraged him to take medication. Provocation as a partial defence measure can also be used to reduce the murder charge to manslaughter, which requires a lighter sentence. 

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