The murder charge facing David after killing his wife Josephine may result in either conviction or acquittal depending on the defence adopted and how the prosecution argue the case to prove his guilt. Murder is a criminal offence that attracts different sentences such as death or life in different countries. However, it must be noted that as a result of the rule of law and democratic systems, it is the criminal procedure, responsibility and burden of the prosecution to prove the guilt of the defendant beyond any reasonable doubt, instead of the defence proving the innocence of the defendant. Any doubt created during hearing of the case is determined in favour of the offender. The law as stipulated by most constitutions around the world including the European Convention on Human Rights, chapter 6 affirms that a suspect is deemed innocent until proven guilty (Tómasson, 2012). This provision qualifies David as innocent until the time prosecution proves their case. Equally, the same jurisdiction permits David the right to legal representation, and there are a number of defence lines that can be pursued to argue David case.

Defence Options

First Defence

The first defence that council representing David need to adopt is that the defendant is Schizophrenic according to his doctor who had prescribed medication. This means that at the time of the offence, David was not in his right state of mind and never knew what he was doing having that he had not taken the drugs as prescribed. Schizophrenia is a mental disorder that is common among late teens and people in early their adult stage (, 2013). 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, thinks, since it changes the victim perception of reality to an extent of losing contact with reality. People with such conditions suffer from delusions where they believe that other people are trying to hurt them; hallucinations where they see or hear imaginary things that do not exist and speak in abnormal or confusing ways. Schizophrenic individuals also exhibit bizarre behaviour, unable to logically negotiate sensible daily life activities (, 2013). These characteristics of a schizophrenic person reveal that David was mentally abnormal at the time of murder. The law also demands that any defendant of such magnitude be medically and mentally examined if fit for trial or otherwise be declared unfit for prosecution. David under this jurisdiction is unfit for trial, thus should be acquitted. The defence need to obtain a mental report from the defender professional doctor who declared him Schizophrenic as an exhibit in court and if possible have the doctor testify before court to illuminate the court on the condition in relation to the significant connection between schizophrenia and violence.

The court also needs to note that Josephine was fully aware of the offender medical and mental condition and would have encouraged him to take his medication instead of provoking him by being late and telling him that she never loved him and was already dating Len. The knowledge includes knowing his inability to control emotions and inability to think normally. People with such conditions like David are able to live normally when given support and under medication. This was lacking in this case.

Second Defence

Provocation is a legal defence usually pursued in cases where after provocative actions of the assaulted victim, the defendant loses self-control and commits a violent crime. In some occasions, the violence can be as a result of extreme anger or jealously. Provocation can be used to win an acquittal or as a partial defence to reduce a sentence from murder to manslaughter depending on systems of law (EWCA Crim 1, 1992). It is important to note that in UK, defence of provocation is only allowed as a partial defence to murder that can only reduce the conviction to manslaughter. In case the prosecution or jury admits the defence, it leads into a conviction for manslaughter, which is less serious to murder (, 2004). The present legal version of the defence in New South Wales (NSW) applies if; (1) the violent act causing death was instigated by loss of self-control on the part of the defendant as a result of the conduct of the victim towards the defendant; and (2) if that similar conduct of the deceased could have prompted an ordinary individual in the same condition as of the defendant to have lost self-control to an extent of forming intent to fatally hurt or kill the deceased (Roth & Blayden, 2012). Intent in this case involves moving with an objective, purpose and desire to kill. In this regard, the defence need to note that the intent of David was not to kill the wife as indicated that prior to arrival of the wife he was cooking a special meal for a quiet wedding anniversary evening. This proves that it was only a reaction to stop the wife from further assault.

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 indicates that 11 male defendants successfully used provocation defence under infidelity perspective. One such case was of Singh v R, where Mr Singh was charged with murder (Roth & Blayden, 2012). In the case, Mr Singh was reported to have moved to Australia to join his wife on a spousal visa, after his wife moved on a study visa. Unfortunately, their relationship started to degenerate on his arrival and during a dispute; Mr Singh strangled his wife to death and cut her throat at least eight times with a Stanley knife. According to the defendant, during the encounter and argument, his wife slapped him numerous times, and told him that she never loved him, but only loved another man. She further told him that she would ensure Singh was extradited from the country. The defendant was convicted of manslaughter, eight years imprisonment with a non-parole period of six years, not murder on the basis of provocation (Roth & Blayden, 2012). This case is identical to the charge against David who was provoked by the wife, first by coming back late and worst of all telling David that she no longer loved him, had a new lover, Len, who she had been seeing for the last 6 months and would be leaving David within a week. Based on this level of provocation, David 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 given even if it means assigning him a state counsel as required by the law. The judge also have a responsibility to ensure that medical report from professional psychiatric is obtained to prove whether David is mentally sane to be tried in a court of law. Based on 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. This is because provocation defence majorly apply when provocative conduct is instantly followed by reaction. Conversely, passage of time between the provocation and later reaction may be interpreted as planned, purposeful, and based on clear motives, such as punishment or revenge which are inconsistent with the claim of loss of self-control that results into defence of provocation. It is the responsibility of the judge to apply the rule of proof beyond reasonable doubt before any sentence.


The murder charge facing David after killing his wife is a criminal offence that attracts heavy penalties like 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 his Schizophrenic mental condition as diagnosed by his doctor, a disorder that makes the person unable to control emotions and generally mentally abnormal. This means that at the time of the offence, David was not in his right state of mind and never knew what he was doing having that he had not taken the drugs as prescribed. Another defence is that Josephine was fully aware of the offender medical and mental condition and would have not provoked him, but instead encouraged him to take his medication. Provocation as a partial defence can also be used to reduce the murder charge to manslaughter, which attracts a lighter sentence. The paper has also looked at the functions of the judge and the jury.