Part 1- Introduction The report contains the...
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R v R (1981) 28 SASR 321 is a case about the law of provocation, which is a partial defence to murder. A person accused of murder can plead provocation. If provocation is proved, it reduces the charge from murder to manslaughter.
Provide an analysis of R v R (1981) 28 SASR 321 from the perspective of liberalism.
Read the following:
- R v R (1981) 28 SASR 321
- Victorian Law Reform Commission Defences to Homicide Final Report October 2004 , Chapter 2
- J Greene ‘A Provocation Defence for Battered Women Who Kill?’ (1989-1990) 12 Adelaide law Review, 145
- Peter Papathanasiou and Patricia Easteal, ‘The “Ordinary Person” in Provocation Law: Is the “Objective” Standard Objective?’ (1999-2000) 11 Current Issues in Criminal Justice, 53
1. The case and articles have been posted on Moodle in the ‘Assessment’ module.
2. Read the entire case, including all three judgments.
- Write a short summary of each judgment. This case summary will not be the basis of your essay. The summary is to help you understand the case and compare the judgments.
- The case summary is an important tool for legal analysis:
- the summary should be about two or three pages long
- Your summary should discuss the commercial law rather the facts. Limit your summary of facts to one or two paragraphs. The facts are not in dispute in this case. The decisions rest on how the law should respond to the agreed facts.
- Use the summary to understand what principles are at stake and how they are weighed in the balance by each judge.
- There are two majority decisions and one minority decision. Summarise, compare and contrast all three judgments. There will be more contrast between the minority judgment and the majority judgments.
- Write the summary in your own words, rather than cut and paste from the judgment.
- The case concerns the law of provocation. You will need to understand the basic legal principles that are used to decide provocation cases. If the rules are not clear from the case and articles, you may need to research the law using a textbook or legal encyclopedia.
- The legal principles of provocation are based on particular values and expectations. Identify the values that are being promoted or protected by various legal rules in the doctrine of provocation.
3. Read each article and take notes of the points that are relevant to the case.
- The articles provide a broader perspective on the doctrine of provocation, such as arguments that it is a gendered doctrine that operates differently with respect to men and women who raise the defence.
- The articles will raise points that will help you to identify different liberal principles that are relevant.
4. In order to analyse from the perspective of liberalism you will need to understand liberal values.
- Make a list of liberal values that are central to or characteristic of liberalism
- Identify which values might be relevant to the case. Your paper should not include discussion about liberal values that are not relevant to the case.
- Identify which values of liberalism are discussed by the judges in the case, and are invoked by the legal rules of provocation.
- Consider whether there are relevant liberal values raised by the facts that are not discussed in the judgments. You should also consider why the judgments do not identify or discuss these values.
5. Find and read at least four further primary and/or secondary materials that discuss this case or the issues raised by it.
- Examples of relevant primary materials are legislation and cases that come after this case and which comment on it or seem to address the problems presented in the case.
- Relevant secondary materials will include journal articles about the case or about the issues raised by it; Law Reform Commission Reports or Senate Committee Reports; legal encyclopedias and textbooks.