Divergent directions in reforming legal responses to lethal violence

Over the past three decades, debates about legal reforms to lethal violence have been evident across Australia and in other jurisdictions. While these debates have often arisen from shared concerns, the resulting reforms have taken different approaches to reformulating the defences to murder. This article considers the divergent approaches taken to reform and the process of law reform itself, documenting the significance of localised histories and high profile cases. It also questions whether reforms to the defences to murder have responded adequately to the varying contexts within which men and women kill. The analysis reveals the limitations of law reform inquiries that fail to take a comprehensive approach to considering the operation of the laws in this area. The article calls for ongoing critical analysis of homicide within and beyond the law.

Passing the banner : the Australian media’s coverage of high profile court cases about women

An examination of the historical narrative patterns of gendered justice in Australian media representations of high profile court cases. Includes discussion of the Chamberlain Case, the Dianne Brimble cruise ship death case, and the Jill Meagher rape and murder

Legitimising lethal male violence : why defensive homicide needs to be abolished

This articles examine the unintended operation defensive homicide in Victoria since its introduction in November 2005. In doing so, its makes an argument for the abolition of this alternative offence to murder. 

The demand for sentence discounts: some empirical evidence

Sentence discounts are now routinely used by Australian courts to encourage guilty pleas. In this article, the authors examine three populations of not on bail defendants who went to trial and were convicted in New South Wales in 2004 for the offences of aggravated robbery, burglary and murder respectively, with the objective of estimating the percentage reduction in sentence quantum that would have induced them to plead guilty. Since conviction (acquittal) probabilities following a trial are likely to be uniformly distributed between 0 and 1, the expected mean probability of conviction (acquittal) for a defendant pleading not guilty was 0.5. The average reductions in the prison sentence corresponding to this probability were: 21%, 23% and 27% respectively. The maximum (minimum) values were: 39% (1.3%), 40% (1.9%) and 39% (1.5%). This range of values reflects the wide dispersion of actual prison sentences handed down by the courts. The distribution of actual sentence discounts offered by the judges in exchange for a guilty plea is not available, consequently the authors cannot comment on why these defendants chose a trial.

Homicide, self-defence and the (inchoate) criminology of battered women

Law reform is increasingly underpinned by empirical research. This is clearly evident in contemporary reform of the laws of self-defence and homicide. These reforms have been motivated largely by concern for battered women who kill their abusive partners. An extensive body of empirical criminological research has been utilised to identify bias in the operation of the traditional law of homicide and self-defence and has been relied upon by many law reform bodies. This article identifies and evaluates the "implicit criminology" constituted by these empirical studies. Five matters that have formed the backdrop to contemporary reform are investigated: the origins of the law of murder; the operation of the law of self-defence; the historical utilisation of mental state defences by battered women; the circumstances in which battered women kill their abusers; and the trial as a key location for processing these offenders. It is argued that the implicit criminology that has driven reform of the law of homicide and self-defence is largely undeveloped or unsubstantiated. Despite the centrality of concern for battered defendants in much contemporary discussion in criminology and the criminal law, it appears that there is still substantial research to be done to clarify the circumstances in which victims of chronic violence kill their abusive partners, how these defendants experience the law and the availability of self-defence to them. What seems to have been established may be more complex, contingent and inchoate than previously acknowledged.

Furphy as (metafictive) Aboriginal ethnographer

This paper investigates Furphy’s ethnographical writings on Aborigines in the short essays and paragraphs he wrote for the Bulletin and in one of his short stories. It also examines his representation of Toby, a part Aboriginal stockman in Such is Life, and concludes by examining one of the most difficult passages in a colonial era novel, his account of a Palmer River Aboriginal attack, cannibalism, and settler murder in The Buln-buln and the Brolga. These Aboriginal-focussed narratives are told as part of a suite of realistic tales by Barefooted Bob and Tom Collins, by way of counter-narrative to Fred Falkland Pritchard’s fantastical romance/action tales which belong to the ripping yarns/Boy’s Own tradition. The paper argues that, although the narrative method, in its refusal to editorialise, is uncharacteristically and unnervingly oblique, there is more than a little of Lilian Pritchard, the Lady Novelist, in Furphy himself and that the questions he puts into the mouth of the Lady Journalist about Aboriginal culture are probing and pungent.

The demise of Bicycle George : a life of crime

This short piece looks at the life of a murderer, George Blunderfield (alias Arthur Oldring), who was hanged in Melbourne in 1918. Melburnians, or visitors to the city, may have seen his image on the wall at the Old Melbourne Gaol. Blunderfield's life started out normally
enough, and then descended into horrific crime. His story includes bicycle racing, escape from an island prison, and then recruitment for service with the Australian Imperial Forces in wartime Victoria. In the last years of his life, Blunderfield wreaked havoc from the western to the eastern coasts of Australia. This in turn had a dramatic effect on his immediate family, which is also detailed here. This story draws on the archives at PROV as well as on State Records Office of Western Australia material, with help from Ms Jean
Bellamy, a distant relative of George Blunderfield.

Homicide law reform, gender and the provocation defence: a comparative perspective

 The operation of the partial defence of provocation has animated significant debate for more than two decades among scholars, legal practitioners, politicians and the community. In recognition of the injustices that result from its operation, criminal justice systems worldwide have conducted reviews of the law of provocation and have implemented divergent reforms targeted at minimizing the influence of gender bias in the law's operations. Drawing on the voices of over one hundred members of the Victorian, New South Wales and English criminal justice systems, this book provides a much-needed comparative analysis of the operation of this controversial partial defence to murder, the varied approaches taken to reforming the law of provocation and the effects of these reforms in practice.

Meursault (and Caligula) avec de sade: on the relations between the literary absurds and Camus’s philosophical discourses

This article considers the relation between L'Etranger and Caligula, with Camus' philosophical discourse. It aims at mediocra firma between the idea that the literary 'absurds' just illustrate Camus' philosophy; and the idea that they are wholly autonomous from that philosophy. Following threads from Camus' own responses to Melville, du Gard and others, we argue that Meursault and the crazed emperor Caligula are not illustrations of the absurd, let alone Camusian ethical ideals. They embody 'temptations' to forms of philosophical suicide and murder Camus systematically opposed in his philosophical writings, whose paradigm in The Rebel is the Marquis de Sade. Rather than rebelling against the unjust irrationality of the world, these figures (either passively or actively) become agents of this irrationality. Camus the man, or his thinking, should not be identified with them, as such, any more than Shakespeare should be identified with his Iago, or sundry other villains.

‘Cemented in their cells’: a human rights analysis of Blessington, Elliott and the life imprisonment of children in New South Wales

In 2010, two Australians, convicted in childhood of rape and murder, lodged a joint submission with the United Nations Human Rights Committee, claiming that successive changes to sentencing legislation in New South Wales breached their human rights by denying them any meaningful prospect of release. In this article, we examine the political, legislative and procedural moves that have resulted in Australian children being sentenced to life without parole or release. We argue that successive legislative changes in various Australian jurisdictions have resulted in a framework for sentencing decisions that is considerably out of step with international legal standards for criminal justice. These increasingly punitive legislative changes exacerbate Australia’s already declining record of cooperation with UN processes, and reveal Australia’s reluctance to respect the legitimacy and authority of international law. Against this troubling context, the views of the Human Rights Committee serve as a much-needed reminder about the importance of a principled approach to child sentencing that forecloses neither the goal of rehabilitation nor the prospect of release and reintegration.

Family violence in domestic homicides: a case study of women who killed intimate partners post-legislative reform in Victoria, Australia

This article examines the impact of legislative reforms enacted in 2005 in Victoria, Australia, on legal responses to women charged with murder for killing their intimate partner. The reforms provided for a broader understanding of the context of family violence to be considered in such cases, but we found little evidence of this in practice. This is partly attributable to persistent misconceptions among the legal profession about family violence and why women may believe it necessary to kill a partner. We recommend specialized training for legal professionals and increased use of family violence evidence to help ensure women's claims of self-defense receive appropriate responses from Victorian courts.

The implementation of feminist law reforms: the case of post-provocation sentencing

In 2005 the Australian State of Victoria abolished the controversial partial defence of provocation. Part of the impetus for the reforms was to challenge provocation’s victim-blaming narratives and the defence’s tendency to excuse men’s violence against intimate partners. However, concerns were also expressed that these narratives and excuses would simply reappear at the sentencing stage when men who had killed intimate partners were convicted of murder or manslaughter. This paper analyses post-provocation sentencing judgments, reviewing cases over the 10 year period since the reforms in order to determine whether these concerns have been borne out. The analysis suggests that at the level of sentencing outcomes they have not, although at the level of discourse the picture is more mixed. While sentencing narratives continue to reproduce the language of provocation, at the same time, post-provocation sentencing appears to provide opportunities for feminist judging – picking up on the spirit of the reforms – which have been taken up by some judges more than others.

No prospect of release: Kevin Crump and the human rights implications of life imprisonment

A NSW court last week dismissed Kevin Crump’s latest appeal against his natural life sentence. Crump, who has served nearly 42 years in prison for murder, has been formally denied any prospect of a meaningful life outside prison walls.

The decision provides a timely opportunity to reconsider the viability of terms of life without parole. It further entrenches the use of terms of life without parole in Australia despite moves overseas to restrict – and in some cases eradicate – them.