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• Articles: Post Modernism: Narrative Conventions in Literature

  2009 Mar 08

  Intertextuality is a way in which to inform our reading of one specific text with the reading of others. Although a genre or narrative of a text may set up expectations, it is often the explicit references or allusions that have particular influence in shaping our reading of a text. The English Patient, a post colonial novel written in a post modernist style, includes a number of intertextual references and allusions that support its central ideas, themes and issues.
  The interpretation of these themes, such as religion, relationships, identity and history, is largely dependant on previous knowledge of intertextual references. These allusions also have an influence on the character construction within the narrative, and provide a background and clarity to each character. The various print, visual and audio texts alluded to in The English Patient shape its reading and support its narrative structure, core ideas, themes and issues.
  
  
  The gradual degradation of religion is an idea that is represented by a number of intertextual references within The English Patient. Along with supporting imagery and symbolism, the allusions portray the idea that the importance and value of religion is declining. The primary evidence of this is in the symbol of the English patient; he is referred to as a "despairing saint". His burn-ravaged body with its "hipbones of Christ" becomes a representation of religion, which has become little more than "a ghost". There are a number of allusions to the Bible within The English Patient, beginning with the English patient's time spent in the desert a parallel to Jesus' time where he was tempted by the devil. "Those few callous words in the Bible," are consequently satirized through a number of intertextual references, revealing that, like "all statues of Demetrius", the "nave Catholic" ideas are considered to be essentially "worthless". Demetrius, according to the Book of John 1:12, was a Christian who is spoken of as having a good report of all men, and of truth itself'. Religion within The English Patient is portrayed as "some fable about mankind and heaven". The degradation of religion is further influenced by images of destruction of religious icons echoed in the reference to Savonarola's Bonfire of the Vanities, "And everything was swept away free will.the right to worship Plato as well as Christ". The Villa San Girolamo, was "previously a nunnery" before the Germans moved in and had the Allies take over, causing destruction and leaving it with "sections of the chapelblown up". Hana, taking advantage of it, "carried the six foot crucifix from the bombed chapel and used it to build a scarecrow", affirming the lessening importance of religious items. The ancient historians called in for the battle of Umbria, (the few that realize the importance of art, particularly religious art), those who are brought in to enlighten troops on the best way to get into a fortress town."They spoke of towns in terms of the art in them. At Monterchi there was the Madonna del Parto by Piero della Francesca". The disregard of religious items by troops is small originally, but gives the impression that it will grow and be fostered, at first, "a twig from the Tree of Good and Evil inserted into the mouth of the dead Adam. Years laterthe bridge over the Siloam was made from the wood of this sacred tree". The old, conservative perception of religion is seen as without free will, and so religion is changing with the time, "a new testament". The number of allusions to religious texts and symbols within The English Patient support and enrich the idea that religion has become a thing of the past.
  
  Identity is a complex and broad theme in The English Patient. Although imperialism and nationalism is criticized, the importance of physical and cultural identity is emphasized. Boundaries have become irrelevant and blurred. Nature and man made construction have become one, religion and war, love and death, nations within nations. Demarcation is lost in the desert, "house and landscape" becoming one, forcing each room to adapt "itself to this wound, accepting the habits of weather, evening stars, the sound of birds." The identity of the characters become uncertain. They are paralleled with other characters and situations from different texts, and therefore become identified by such references. Kip, for example, becomes "the officer Creighton". He becomes the English patients' David, predicting events in the end of the text. He is English by adoption, yet he remains "the foreigner, the Sikh". Caravaggio, the ex-spy, "had felt like a man in the darkness of a room imitating the calls of a bird", not unlike Hana's description of the English patient; "the real bird is the man upstairs." The English patient is Count Lasdilaus de Almasy, who is of garbled memory, who does not want "to belong to anyone, to any nation", with his sole identifying character contained within the text of Herodotus: The Histories. Everything has become indefinite. Borders, ideas of separation and differentiation are only sources of conflict, for "we are deformed by nation states". Beliefs have become contradictory. "And Madox returnedand a month later sat in the congregation of a church, heard the sermon in honour of war, pulled out his desert revolver and shot himself". The allusions become a way to explain the characters, the reasons for their actions and those themes and ideas which are criticized; "How did Odysseus die? A suicide, wasn't it?....Yes, Madox was a man who died because of nations". Identity, as shown within The English Patient, is not concrete, frequently shifting.
  
  Intertextuality empowers the core themes and issues by adding layers and ideas in subtle ways, enabling the reader a more in depth and informed reading of a certain. They provide a different perspective to a text than if it was without allusions, and may alter a reading of a text. The English Patient does not spell out its core themes and issues, but impels a reader who has understanding of the various intertextual references suggested, to sympathize and identify with them. The setting, characters and events are constructed around identity in The English Patient, and are further supported and extended by intertextuality. Relationships are a complex and diverse issue both within text and out, although they are supported and clarified by the allusions made within The English Patient. Although religion could be seen by some readers as neither an obvious or major theme, with the allusions presented in The English Patient, it becomes an important representation of the events and society of the time. Intertextual references add layers to the core ideas embedded within a text and encourage the reader to engage with the texts themes and issues.

  

• Criminal law in context: Attitudes and Penalties to Criminal Law in Western Australia

  2008 Oct 25

  CRIMINAL LAW IN CONTEXT – ATTITUDES AND PENALTIES TO CRIMINAL LAW
  
  In recent times, there has been a focus on the opinion that penalties for criminal offenders in Western Australia have become 'soft'. To better examine the validity of this view, firstly, a definition of penalties and offences is required. Penalties is defined by the Maquarie Dictionary, as a punishment imposed or incurred for a violation of law or rule1, while an offence means an offence against a law of Western Australia, the Commonwealth, another State or a Territory, as set out in the Western Australian Criminal Code Act Compilation Act of 1913. Secondly, a comparison of the attitudes and penalties of 19th Century England as opposed to modern Western Australia (“WA”) is of assistance. Although there is a considerable difference between the attitudes and penalties of 19th century criminal law in England to those of today in WA, the context of each society must be taken into account. The laws, rules, and societal expectations, including culture and the importance of economic status, are considerably different between each society, and thus reflect the differences in attitudes towards, and punishment for, breaking the law. For example, the tolerance of petty crimes is far lower in 19th Century England than it is today. Accordingly, punishments for crimes in general were stricter; such as the frequency of use of capital punishment for a range of crimes in the beginning of that era. In order to explore the view that the current Western Australian penalties for offenders are 'soft', one must examine the effects that capital punishment had historically on society, along with the recent changes to mandatory sentencing and homicide laws.2 The greater focus on the rehabilitation of the individual in modern times can be compared and contrasted with the need to satisfy the community's need for protection. It could be argued that the changing view of the purpose of punishment has resulted in a greater flexibility in the choice of sentencing for judges, which can be interpreted as that penalties for crimes are getting 'soft'. Examining the types of offences, the types of punishments, and the criminal court system as a whole, with respect to both 19th century England and 21st Century Western Australia, can assist in determining whether the current media opinion of 'soft' penalties in WA is one that has been made accurately.
  
  SUMMARY CRIMES
  A summary offence, as defined by the Western Australian Criminal Code (“the Code”)3, is an offence that is tried otherwise than on indictment. Summary crimes are usually tried in Magistrates courts and (can) result in less severe penalties than those on indictment (such as a fine as opposed to a term of imprisonment). One prominent contemporary example of the changes over time in regards to the attitudes and penalties for summary crimes, is that of a young boy given household chores for punishment for being convicted of a graffitti offence, 4 as opposed to community service work. The magistrate in question in the article, Mr Vose, has expressed criticism of the current judicial system, stating that punishments were “too light”. This opinion, that “the price to be paid...is not very much”5, has shown to be reflected by the media. This view becomes more persuasive when the attitudes towards summary crimes of today and those of 19th Century England are compared. For example, the theoretical situation as presented by Dickens in Sketches by Boz, puts forth a situation in which a young boy is charged and convicted of pickpocketing, and sentenced to 7 years transportation; transportation was an alternative to the death penalty; it meant that convicts were sent to live and work in a colony of England such as America or Australia.6 Such a punishment, that of being sentenced to work in a colony, was not uncommon for what we would now view as a minor crime (such a stealing a loaf of bread), although it was argued that its central problem was that it did not reform convicts.7 It can be argued, without the acknowledgement of any socioeconomic or cultural differences between the youths, that the punishment towards petty crime in 19th Century England was far harsher then than it is now in 21st Century Western Australia.
  Alternatively, another example of the puportedly 'soft' response to criminal offences, is a recent case where a 13 year old girl received no jail sentence for repeatedly punching a woman in the head, (May 2008), 8 in which the woman in question died the day after. The girl received a 6 month community based order. It could be argued that under new legislation,9 the girls' indirect involvement in the womans death, (through her “mild concussion” probably caused by being knocked to the ground after the assault), means she is criminally responsible for the death, and liable to imprisonment for 10 years. In this situation, it could be argued that it is not the penalties that have become soft, but rather the degree of flexibility in sentencing have caused the softening of the treatment of offenders, as well as the reliability of the justice system in handing out appropriate punishments, such as with the boy convicted of the graffiti charge mentioned previously. Ultimately, 'soft' penalties under Western Australian Criminal Law have been under the media spotlight in recent times. A comparison of penalties with 19th Century England as opposed to now can assist in verifying whether this opinion of criminal law penalties is justified.
  
  INDICTABLE OFFENCES AND PUNISHMENTS
  An indictable offence is one that is dealt with by a judge and jury in a District or Supreme Court. Some of the more minor indictable offences can be dealt with summarily by a Magistrate, due to the provisions made for a summary penalty in the relevant section of the Criminal Code.10 Some examples of (major) indictable offences include murder, treason, and armed robbery, while lesser indictable offences include assault occassioning bodily harm or stealing . The penalties for indictable offences have changed considerably from 19th Century England; for example, the prevalence of imprisonment for charges of assault, and the combination of alternative punishments, e.g. fines and whipping, at that time was rather frequent for a range of offences. The use of coporal punishment continued well into the 19th Century, but gradually declined until it was abolised by the end of the century. Although historically (as a colony of England), Western Australia used corporal punishment, it currently does not feature it as a penalty. The range and frequency of use of penalties in 19th Century England evolved from harsh penalties such as death or corporal punishment, towards an empahsis on imprisonment as a method of deterrence and reform.
  
  Murder and Manslaughter
  Penalties for offences are as varied as the crimes themselves, and are used for a number of reasons. In 19th Century England, the death penalty was orginally a mandatory punishment for those convicted of murder and manslaughter, and was often also given for those convicted of lesser offences, such as theft.11 Despite this, death sentences were irregularly carried out, due to mitigating circumstances being plead by the accused, or the sentence being transferred by the judge. Gradually, the death penalty became to be used less and less over the course of the century, evolving from being used for the most serious offences, until it was only murder and High Treason.12 This history of the use of the death penalty for a number of offences would have had an effect on society; meant as a deterrent, executions often became a public spectacle, until they were transferred inside the prisons. This frequency of use of the death penalty, along with harsh convictions such as years of transportation for convicts, is one reflection of the attitudes towards crime in 19th Century England, and is considrably different to the current approach taken by the judiciary in Western Australia. The regularity of offences being dealt with summarily and the ability of judges to acknowledge mitigating circumstances in sentencing means that the current judicial system is viewed as less rigid, and could be said to influence the current opinion on the media that penalties have become 'soft'.
  
  The use of capital punishment was abolished in Western Australian in 1983, the last execution occurring in 1964 (NSWCCL). It has been argued that the death penalty should still be used in particular cases; one example is that of serial killers, who, (as previously) convicted of willful murder, would only receive 20 years.13 Under new legislation, however, life imprisonment is given unless the judge feels that the sentence is unjust or the person in question would no longer be a threat to the community once the sentence has been served (in which case they would be given 20 years)14. One opinion is that the current flexibility in sentencing provides challenges for judges, and the sentence given for those convicted for murder may not always be appropriate. As reported in the West Australian Newspaper of 02 August 2008, judges have been “cast adrift upon a sea of discretion”15. Currently, the penalty for murder is a life sentence of a minimum of ten years, up to 'never to be released', and along with 279.4 of the Criminal Code (in which, as previously stated, certain mitigating circumstances means the offender can be charged with 20 years instead of life), gives the judge a wide range of options for sentencing. As previously stated, it can be said that this flexibility in sentencing has influenced the opinion that penalties for crime in Western Australia have become 'soft'.
  
  SOCIETY
  The conflict between police and courts
  An alternative interpretation of the reasons behind the focus on 'soft' penalties is that there is a conflict between branches of the justice system. For example, as in the article presented by the WA Police news in 2006, 'Judiciarys soft sentences degrade Police authority'16, the opinion is that sentencing does not “reflect societies values and expectations”, and has previously even required law makers to “intervene”. This apparent conflict between the courts and police has brought into question the emphasis on rehabilitation for offenders, and whether rehabilitation for “these people” who have a “previous history” would be successful, as stated by WA Police Union President Mike Dean in August 200817. Essentially, the current approach of the judiciary for sentencing is one of rehabilitation and reform of offenders18, and thus would influence the opinion that penalties are getting 'soft' in Western Australia.
  
  The effect of culture and socioeconomics on punishment
  The context of culture and society in 19th Century England must be included in any examination of its legal system, particularly in respect to punishments. For example, until 1827 many offenders were able to receive benefit of clergy; that is, if they could prove affiliation with a church (usually by reading a verse in the Bible), they were given no punishment except a branding on the thumb, and then handed over to the Church for them to deal with. Women who were pregnant were able to plead a respite from the death penalty until the child was born; however, concerns about the cost of raising the newborn meant that the mother was usually pardoned19. Differences in socioeconomic positions had a rather substantial effect; for example, England's Poor Laws, that regulated the movements and actions of those of a low(er) socioeconomic status20.
  The significant part that socioeconomic status played in the legal system in England is comparable with the approach traditionally taken by that of Western Australia, where the court system is designed to be accessible to all, regardless of percieved status.. Although each court system originates from a Christian background, due to the transportation of the English Legal system because of the origins of Australia as an English colony; Western Australia began as a primarily convict settlement, and thus began with a system of martial law. These form the essential differences and similarities between the two court systems in time; their shared origin, and their differing approach to socioeconomic status.21
  
  IN CONCLUSION
  Ultimately, the view that penalties for breaking the law in Western Australia have become 'soft' is justifiable. In order to validate it, exploration of the history of of the attiudes towards criminal law is necessary, in order to compare the evolution of the justice system as a whole. For example, the vast difference between the criminal law system of 19th Century England as opposed to modern Western Australia, along with the differences between the social and cultural situations of the time, provides an insight into how this opinion can be formed. For example, the differences between the punishments for what are now classified as summary offences, would have resulted in the death penalty or corporal punishment in the early 19th Century. Currently, the flexibility in sentencing means that judges may take into account mitigating circumstances, putting emphasis on the rehabilitation into the community and reformation of the individual, as opposed to simple deterrence. Recent reports of cases where an offender has received a lesser or no sentence for an offence that would traditionally mean liability for imprisionment, such as for assault as previously referred to in articles featured in the West Australian and the WA Police News, have revealed a general opinion that the judicial system is not keeping up to date with societys' expectations. In conclusion, particularly when taken in comparison with both its history and that of 19th Century England, the attitudes and penalties towards breaking the law in contemporary Western Australia can justifiably be viewed as 'soft'.
  
  
  1The Maquarie Dictionary, (Revised 3rd Edition, NSW: The Maquarie Library Pty Ltd, 2003)
  2Criminal Law Amendment (Homicide) Act 2008 (WA),
  3Criminal Code Act Compilation Act 1913 (WA)
  4 Christiana Jones, ''Graffiti Boy Told to do Household Chores for Punishment', The West Australian, 20 August 2008, 16.
  5As above.
  6Charles Dickens, Sketches By Boz, 1836.
  7Note: Transportation was theoretically abolished by the Penal Servitude Act of 1857, as cited in Emsley, Hitchcock and Shoemake, Punishments at the Old Bailey: Late 17th Century to the early 20th Century, Old Bailey Proceedings Online , at19 August 2008.
  8Christiana Jones, 'No Jail for Assault on Tragic Mother', The West Australian, 06 August 2008, 7.
  9Criminal Law Amendment (Homicide) Act 2008
  10Law Reform Commission of Western Australia, Summary trial of Indictable Offences - 30th Anniversary Reform Implementation Report (2002)
  ,http://www.lrc.justice.wa.gov.au/2publications/summaries/P06.PDF> at 15 September 2008.
  11Old Bailey Proceedings Online, Trial of Henry Woodman – Theft (1800), <http://www.oldbaileyonline.org/browse.jsp?id=t18000115-3&div=t18000115-3#highlight> at 27 August 2008.
  12Offences Against the Persons Act 1861, (UK), as cited in: Emsley, Hitchcock and Shoemaker, Punishments at the Old Bailey: Late 17th Century to the early 20th Century. (See above).
  13Stateline Western Australia, Serial Killers death brings relief to survivor (October 2005), <http://www.abc.net.au/stateline/wa/content/2005/s1478583.htm> at 15 September 2008.
  14Criminal Law Amendment (Homicide) Act 2008 (WA).
  15 Roy Gibson, 'Judge Sees Challenges in New Murder Laws', (02 August 2008), The West Australian,12.
  16 Kevin McDonald, 'Judiciary's soft sentences degrade Police authority', (August 2006) WA Police News
  17David Darragh, ' Cop Basher's Sentence Shows Judges Let Police Down: Union', (06 August 2008), The West Australian, pg 3.
  18As previously mentioned, with the assault on the mother resulting in community service, written in the West Australian article of 06 August 2008.
  19Emsley, Hitchcock and Shoemake, Punishments at the Old Bailey: Late 17th Century to the early 20th Century, Old Bailey Proceedings Online , at19 August 2008.
  20Poor Law Amendment Act 1834 (England).
  21Note: One point that could perhaps be considered important, is each respective societies reaction to reformed criminals. For example, convicted criminals were traditionally branded (for different) reasons so that they could be easily identified, while in contemporary times those who have served their sentence are not required to disclose their spent convictions.

  

• Hypnosis: An examination into the history, theories and perspectives on hypnosis.

  2008 Oct 25

  Hypnosis: An examination into the history, theories and perspectives on hypnosis.
  Hypnosis is defined as an artificially induced state of relaxation and concentration in which deeper parts of the mind become more accessible (Collins, 2000). Hypnosis can be put forward as a matter of personal perspective. There are a number of definitions given by various academia on what hypnosis actually is; these include the suggestion theory, the modified sleep theory, and the conditioned response theory1. As a form of therapy, it has a relatively short history, given its origin in the 18th century2. The general consensus on what hypnosis is appears to be that it is an altered state of mind, one of deep relaxation. This in itself requires a definition of an ‘ altered state of mind’, which, according to Kirsch (1998)3, the term implies a change or changes in ones individual experience(s) . The central argument in the validity of hypnosis is that of suggestibility; the differences in the capability of people to be influenced by the will of another, and how this factors into behaviour in the trance-like state produced by hypnosis. There are a wide range of uses for hypnosis which have varied over time; it is now acknowledged as a valid addition of complementary medicine.4
  A short history of hypnosis
  The origin of hypnosis as a form of treatment is generally acknowledged as having occurred with Franz Anton Mesmer in 1778, with his methods of magnetism. He believed in a universal fluid that could be balanced in the body to cause healing through ‘magnetization’: this was achieved through direct (physical contact from the magnetizer) or indirect (iron plates attached to the patient’s body to concentrate the fluid). Mesmer did not achieve public recognition5. His theory was adjusted and officially classified as hypnotism by James Braid in Manchester in 18456. Braid’s method was to induce a trancelike state by requesting that subjects fix their gaze on a single point for a short time. Braids later successes implied that suggestion alone was the basic, underlying factor7. It should be noted that ‘suggestion’, as given in hypnosis terms, is generally indirect8 This was followed by A.A. Liebault in 1886, who developed a method of inducing sleep as a form of treatment, using little but suggestions to influence cures9. Mesmer’s original theory was extended by Charcot in 1878, who succeeded in isolating the nervous system as causing the effects of ‘hypnotic phenomena’. Janet his student, argued that people “can submit to suggestion only after modifying their psychological nature”10, contradicting Braids’ theory. Freud, who worked with Charcot, used hypnotism to study the unconscious. Originally, Freud used “hypnosis in an effort to directly suggest away annoying symptoms or even to ‘wipe away’ disturbing thoughts and memories”11. Older methods of hypnotism fell into disuse in the late 19th century, reportedly under the influence of Babinski12, returning with alternative methods based on ‘shock therapy’, often drugs, in the early 20th13.
  Following is some of the various theories on hypnosis that have occurred over the years. Firstly, there is the suggestion theory, that hypnosis is an induced state of mind which creates increased suggestibility. Next there is the modified sleep theory, as hypnosis presents as the early stages of sleep14. One put forward by Charcot is that hypnosis was a pathological state similar to hysteria and anxiety (Cowen, 2004). A another example is the conditioned response theory, produced by Pavlov and his associates15, which suggests that a hypnotic trigger is the result of continued associations, such as the use of the word ‘sleep’ for hypnotic induction (Cowen, 2004).
  Currently, the validity of clinical hypnotherapy as a treatment has been acknowledged as being justified. The Australian Medical Association has recently stated that:"As evidence emerges that some complementary medicines are effective, then it becomes ethically impossible for the medical profession to ignore them"16 (National Conference, May 2001). Although there have been conflicting views on what theory of hypnosis to support, the benefits shown by clinical trials and associated evaluations are evident. There has been an increasing interest shown in alternative medicines and the connection between the mind and body17, as well as the frequency of use of self-hypnosis.
  Suggestion as motivation as opposed to the ‘altered state of consciousness’: common behaviours attributed to the ‘hypnotic trance’.
  Behaviour that is commonly attributed to the ‘hypnotic trance’ is generally influenced by the therapist. One example is given by Zahrourek in 2002, is that the therapist leads the client into an unconscious search, in which experiential, problem solving and behavioural rehearsal is possible18. Another description of the behaviour that occurs in a trance state is a feeling of relaxation or tiredness, which is again induced by the therapist19, so much so that the subject(s) were unable to lift their eyelids.20 The type of behaviour that occurs in a hypnotic period depends on both the leading (suggestions) given by the therapist and the individual themselves.
  There is a valid argument behind the theory that hypnosis is an ‘altered state of consciousness’, although it has been shown to tie in to being motivated by suggestion. One definition of hypnosis is given as an altered state of brain function induced through suggestion and influenced by interpersonal and cultural cues, which may produce an atypical subjective “experience, volition and physiology” (Hasewaga & Jamieson, 2002). This, for example, includes behaviour or experience which may be unexpected or perceived to be not normally achievable for that individual, given that:
  “...amnesic subjects cannot remember things they should be able to remember; analgesic subjects do not feel pain that they should feel; subjects asked to be ‘blind’ and ‘deaf’ do not see and hear things that they should be able to see and hear...” (Kihlstrom 1997)21
  The question that negates this perspective is whether there is a uniquely hypnotic state produced by suggestion (induction), and whether the experience that results from said suggestion is due to a dependence on this state (Kirsch, 2000)22 Variables such as compliance, motivation, absorption, imagination and expectancy have been emphasized (Sarbin and Coe, 1972)23 One argument in support of the theory that hypnosis is an altered state of consciousness is that of time distortion; rather, the amnesia that occurs regarding the activities that occurred during the hypnotic state and the length of time which passed. There has been no link proven between susceptibility to hypnosis and the level of time distortion that occurs.24 Alternatively, absorption, or involvement with the activity during the hypnotic state, has been shown to correlate with susceptibility to hypnosis. The central argument against this is that tasks that require high attention have been shown to cause time underestimation (Brown & Boltz, 2002)25, whether under hypnosis or not (St. Jean et al.1994)26.
  Criticisms of Hypnosis
  There are a range of criticisms of clinical hypnotherapy, although it should be remembered that it is currently suggested for use as a complementary form of medicine and not as a sole treatment. “Studies show that hypnosis tends to cause people both to remember and to imagine more, thereby increasing both true and false memories.” (Harvard Mental Health, 2002). This particular view has received a fair amount of media attention. A commentary on a paper by Wagstaff (2000) has reflected upon the fact that a minority of individuals receive negative responses, post-hypnotic experience, such as headaches, nausea, dizziness and stiff necks27.
  Conclusion
  The definition of hypnosis is dependent on a number of factors. These include the various theories given for the causes of hypnosis, as well the argument over the suggestibility of the individual and the influence of the therapist, along with the relationship between the subject and therapist. Despite its criticisms, hypnosis has been shown to be beneficial as a form of alternative or complementary medicine. Given that general consensus appears to be that hypnosis is a state of mind, one of deep relaxation, it can be argued that hypnosis is relative to the individual, and thus a matter of a subjective perspective.
  
  1 Cowen, L. (2004, September). What is hypnosis?. Journal of the Australian Traditional-Medicine Society, 10(3), 105-107.
  2 Chauchard, P. Hypnosis and Suggestion (1964), New York: Walker and Company, p3.
  3 As cited in Hasegawa, H., & Jamieson, G. (2002, September). Conceptual issues in hypnosis research: explanations, definitions and the state/non-state debate. Contemporary Hypnosis, 19(3), 107.
  4 Cowen, L. (2004, September). What is hypnosis?. Journal of the Australian Traditional-Medicine Society, 10(3), 105-107.
  5 Chauchard, P. Hypnosis and Suggestion (1964), New York: Walker and Company,p5.
  6 Ibid, p7.
  7 Scott Moss, C. Hypnosis in Perspective (1965), New York: Macmillan
  8 Marcuse, F.L. Hypnosis: Fact and Fiction (1959), Baltimore: Pelican Books
  9 Chauchard, P. Hypnosis and Suggestion (1964), New York: Walker and Company,p9.
  10 Ibid, VII
  11 Scott Moss, C. Hypnosis in Perspective (1965), New York: Macmillan
  12 Chauchard, P. Hypnosis and Suggestion (1964), New York: Walker and Company,
  13 Scott Moss, C. Hypnosis in Perspective (1965), New York: Macmillan, p15.
  14 Cowen, L. (2004, September). What is hypnosis?. Journal of the Australian Traditional-Medicine Society, 10(3), 105-107.
  15 Ibid, p106.
  16 Ibid, p105.
  17 Hypnosis: theory and application: part II. (2002, June). Harvard Mental Health Letter, Retrieved October 11, 2008, from CINAHL Plus with Full Text database.
  18 Zahourek, R.P., (2002). Utilizing Ericksonian Hypnosis in Psychiatric-Mental Health Nursing Practice. Perspectives in Psychiatric Care, 38(1), 15-22.
  19 Marcuse, F.L. Hypnosis: Fact and Fiction (1959), Baltimore: Pelican Books
  20 Scott Moss, C. Hypnosis in Perspective (1965), New York: Macmillan, p15.
  21 As cited in Hasegawa, H., & Jamieson, G. (2002, September). Conceptual issues in hypnosis research: explanations, definitions and the state/non-state debate. Contemporary Hypnosis, 19(3), 103-117
  22 Ibid.
  23 Ibid, p106.
  24 Naish, P. (2006, March). Time to explain the nature of hypnosis?. Contemporary Hypnosis, 23(1), 33-46.
  25 As cited in above.
  26 Ibid.
  27 As cited in with Lyn, S. J., Myer, E. & Mackillop, J. (2000). The systematic study of negative post-hypnotic effects: Research hypnosis, Clinical hypnosis and Stage hypnosis. Contemporary Hypnosis, 17(3), 127-131

  

• The abolition of the defence of provocation in Western Australia

  2008 Sep 25

  INTRODUCTION
  
  The recent abolition of the partial defence killing under provocation can be considered as a substantive, rather than simply a cosmetic, change to the Western Australian Criminal Code (“the Code”). Provocation, which has assault as its central element, was originally defined1 as any wrongful act or insult done to or in the presence of an ordinary person, or to those which he has a familial relation to, which deprives him of the power of self control and induces him to assault the person by which the insult was done or offered. Section 2812 set out that the partial defence of killing under provocation, that death resulting from a provoked act which world normally result in a murder charge, results in manslaughter only.3 The Criminal Law Amendment (Homicide) Act of 2008 sets out those sections of the Code and associated legislation which has been repealed and replaced. Section 281 has removed killing under provocation and replaced it with 'Unlawful assault causing death'. This states that death resulting from an unlawful assault4, whether expected or reasonably foreseeable or not, means that the offender is criminally responsible and liable to 10 years imprisonment. This change to the legislation can be argued as substantive because the intent element has been changed, that provocation can no longer be taken as a defence with the exception of mitigating circumstances in sentencing,5 and that it would now result in a charge of murder rather than manslaughter. In order to fully explain this argument, one must look further into the history of provocation as a defence, and the reasons why it has been repealed as a partial defence under the Code.
  
  ISSUES WITH THE PARTIAL DEFENCE OF PROVOCATION
  Intention
  
  The defence of killing under provocation is the equivalent of changing an intentional killing to an unintentional one. As previously stated, provocation is considered an intentional killing; the mental element for murder does not require proof of premeditation, even proof of split second intention is enough. Provocation is irrelevant as a defence unless it has been proved beyond reasonable doubt by the prosecution that there existed the required intention for murder6. Thus, due to the required intention, provocation is classified as a partial defence to killing, (rather than a whole defence).Originally, provocation was viewed as a justification based defence, focusing on the extent (and effect) of the wrong, although it has evolved over time, into an excuse based defence, where the accused conduct and mental state is the focus.
  
  The partial defence of provocation was a controversial for a number of reasons; the central one being that manslaughter was a less serious offence with less serious consequences, despite that intention must be proved in order to use provocation. A perhaps more significant argument against the use of the provocation defence is the 'ordinary person' test. This requires that the provocation was significantly serious that an ordinary person could have lost self control and killed.7 The issue with this is that certain types of provocation might be trivial and insignificant to one person and yet 'quite extreme provocation' from another's viewpoint.8. In Masciantonio9, the High Court stated that, “The provocation must be put into context, and it is only by having regard to the attributes or characteristics of the accused that this can be done”. The complexity of assessing the provocation in context by the jury has been an issue of contention. Overall, the requirement of intention for murder in the provocation defence, as well as the complexity of the ordinary person test support the repeal of the previous legislation.
  
  The repeal of the previous legislation is substantive due to the change in the requirement of intention. Previously, intention was a required element for death from assault (because essentially, although not premeditated, a provoked killing was still an intentional killing, albeit even if it is a sudden intention). Under the new section 281, the offender is criminally responsible, 'even if the person does not intend or foresee the death'. Originally, the accused, if successful with the defence, was still criminally responsible for manslaughter, but under the new legislation, they are responsible for murder, albeit without intention.
  
  Consequences of the new legislation
  The abolition of the partial defence of killing under provocation can be considered a substantive change in the law due to the number of consequences it results in. Firstly, the offender is convicted of murder, and any mitigating factors (such as provocation) can only be taken into account in sentencing. It has been argued that this may result in murder convictions that no one would want. Alternatively, there still exists in the Code provisions for an oft-used argument against the abolition of the provocation defence: that of battered women. Examples of said provisions include that of section 248, Self defence against unprovoked assault, and section 249, Self defence against provoked assault.10 A further argument against the defence of provocation is that it, at least partially, condones violent responses. In a modern context, it has been seen that violent responses are not culturally acceptable, thus expanding upon the theory that the defence has evolved from a justification to an excuse.
  
  Current legislation – Advantages and Disadvantages
  The reform of Section 281 of the Western Australian Criminal Code offers a number of advantages and disadvantages. As previously stated, the abolition of the partial defence of provocation may result in inappropriate murder convictions11. Alternatively, it is argued that provocation can and will be taken into account in sentencing. For example, the sentencing process in Western Australia has been considered to be relatively flexible, particularly considering the number of changes to the Code12.
  
  CONCLUSION
  The abolition of the partial defence of killing under provocation is a substantive change to the criminal law of Western Australia. The primary and perhaps most significant reform of section 281 is the element of intention required; originally, intention for murder was required beyond reasonable doubt, (with the result of criminal responsibility for manslaughter), but currently the accused is criminally responsible whether the death was intended or not. The removal of provocation means that rather than the mitigating circumstances being considered in prospect of conviction, they are considered in prospect of sentencing. There are two main arguments surrounding provocation; that it should be retained for the 'battered woman' defence, and that it should be abolished due to the inconsistency of its rationale and the partial condoning of violent responses. Effectively, the self defence clauses of the Criminal Code, as well as those of duress, would accurately cover most situations in domestic violence cases. The incorporation of the new Section 281 may result in considerably different interpretations of assault cases; it has been argued that the results may be too harsh. Alternatively, it could also be said that the current flexibility in sentencing laws means that provocation will be considered sufficiently in sentencing. Overall, the abolition of the partial defence of provocation will change the perspective on assault cases and allow for a less rigid approach to sentencing.
  
  References / Footnotes.
  1Criminal Code Act Compilation Act 1913 (WA), as of Reprint 13: 18 January 2008
  2Criminal Code (WA) as above.
  3Section 270, “Kill” meaning of: Any person who cause the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.
  4All assaults are unlawful unless authorized or justified or excused by law, as set out in section 223 of the Criminal Code (WA).
  5 'Review of the Law of Homicide: Final Report' (2007) Law Reform Commission of Western Australia, No. 97.
  6Law Reform Commission of Western Australia (LRCWA) Report 97 (2007), pg 202.
  7VLRC, 'Defences to Homicide: Issues Paper' (2002) [6.3], as cited in LRCWA No. 97 (2007).
  8 Dimond (Unreported, New South Wales Court of Criminal Appeal, 27 May 1996)
  9Masciantonio (1995) 183 CLR 58.
  10 Tarrant S, Women Who Kill Their Spouse in the Context of Domestic Violence: An opinion for the Law Reform Commission of Western Australia (August 2006) 38, as cited in LRCWA No. 97 (2007).
  11Let it be noted that considering the Homicide reforms are relatively recent, it has yet to be seen as to whether such cases will result.
  12Roy Gibson, “Judge finds challenge in New Murder Laws” The West Australian Newspaper, 02 August 2008.

  

• What makes a good lawyer?

  2008 May 29

  What is a good lawyer?
  (A Paradox).
  
  A good lawyer acts ethically within all areas of life. This means an ability to balance adequate amounts of time spent between work and home, while incorporating a lawyer’s duty as officer to the court and the duty to the professional code of conduct. A lawyer must follow many rules, written and unwritten, as s/he works to combine their responsibility to achieving justice, with their commitment to the client. In achieving these aims, a lawyer combines adherence to the professional conduct rules and general ethics – meaning that they combine the teleological, deontological, and virtue theories of ethics, along with a responsibility to the profession and society as a whole.
  
  The first rule of the Professional Conduct Rules of Western Australia (PCR)1 states that a lawyer must act ethically and honestly in their work at all times. To further explore the meaning of ethically, and to consider ethics as a whole and in combination with the law, the three central theories of ethics must first be discussed. Ethics, in principle, is a philosophy that evaluates human conduct, and actions of morality2. In summary, teleological ethics is about the consequences of an action; deontological ethics is concerned with obligation; and virtue theory concerns the analysis of what it means to be a good person rather than what a decision entails. It could be said that the law is primarily concerned about deontological ethics, because of the obligation a lawyer has to duty. Again, it can be said that legal ethics is a combination of all three principles. One of the quotes most commonly associated with deontological ethics is Kant’s categorical imperative: “Do unto others as you would have done to you”. There are a number of rules detailing the behaviour of the practitioner in areas where possible conflicts of interest may occur, an example: Rule 7.1 of the PCR details that a practitioners own interest or perception of the public’s interest cannot come into conflict with the clients interest, subject to a practitioners duty to the court. Under interpretation of both statements, a lawyer cannot impose their interests or beliefs onto a client, dismissing Kant’s imperative. This means that part of the deontological theory of ethics is fulfilled in part but not in whole.
  
  Teleological ethics, also known as consequentialist ethics, is concerned with the end outcome of a decision. Morality, what is good or bad, is defined by the consequences of a decision. It could be said that the law is primarily concerned with end outcomes: achieving justice, settling disputes, completing cases successfully. The impartiality required by lawyers in their work is consistent with the idea that value is placed on results, rather than actions which conform to some intrinsic moral principle. The lawyer is also required to advance the clients’ interests, which relates to the teleological utilitarian theory of achieving the greatest good.
  
  Essentially, in order to abide to the Professional Conduct Rules, and successfully act ethically at all times, a lawyer must combine the principles of both teleological and deontological ethics. A lawyer cannot act according to the theory of virtue ethics while abiding to these rules and their duty to the court: as previously stated, the view of the practitioner in relation to the client cannot come into play. The conduct of a lawyer is not defined by virtues or character traits; rather, s/he must act in accordance to the rules, the interests of a client, and responsibility to the court. For example, when defending a client convicted of a criminal charge, the lawyer must defend any person on whose behalf the lawyer is instructed, irrespective of what opinion the lawyer may have formed about the guilt or innocence of that person1. If a client clearly confesses guilt, the lawyer must continue to act after proceedings have commenced, subject to the lawyers duty to the court. Although the lawyer cannot remove their client entirely from the position of possible guilt, the lawyer may be seen as indirectly dishonest, because s/he knows of the guilt of the client, and yet (must) endeavour to achieve an acquittal. Again, if a lawyer believes that s/he may have prejudice or interest against a client, they are required to inform said client that they are unable to act, due to conflict of interest. Encompassing the whole of what is means to have good character; to abide by the virtue theory of ethics can only be achieved in small part by a lawyer.
  
  To be an ethical lawyer, one must act ethically in all parts of life. Abidance with rules of conduct just isn’t enough. To a substantial extent, formal disciplinary rules have lost touch with ordinal moral institutions (Schiltz, 2000). To practice law ethically, a lawyer must act in accordance with those institutions. P. Schiltz states that it is impossible for a lawyer to prevent themselves from submitting to the kind of culture that surrounds the practice of law today3. For example, a lawyer is required to fulfil a certain amount of billable hours. It seems inevitable that at some point the lawyer will bill their client extra for a task that actually took them little time. This supposedly inevitable dishonesty does not coincide with either virtue ethics or the Professional Rules of Conduct (rule 5.8).
  
  Although the lawyer may not be entitled to act in accordance with their perception of the public’s interest, s/he has a certain responsibility to society. This, although explicitly stated in part 3 of the PCR, is also implied in the general role of the lawyer as a figure of authority in the community. Working for the Citizens Advice Bureau, a free information referral service which also offered legal services at a reduced cost, enables one to see the respect that a lawyer receives due to specialist training and experience. A lawyer has spent a relatively long period of time learning the law; a subject which everyone knows is lengthy, detailed, and wide ranging. It is assumed that a lawyer who elects to either do probono work or be a principal solicitor at the Citizens Advice Bureau has spent time doing other work. Thus, the service these lawyers provide to the community in lieu of earning a much higher per-hour rate is acknowledged. The combination of these two aspects means there is an expectation that the lawyer will inform clients and the community accurately on points of law and endeavour to assist them to the best of their ability.
  One of the requirements of booking legal appointments with the solicitor at the Citizens Advice Bureau is ensuring there has not been a conflict of interest between two clients (particularly in family law). Advisors of the service are required to explain that firstly, they are not qualified to instruct on legal issues, (but are able to direct inquiries in the right direction), and secondly, that a conflict check is required. This acknowledges the lawyers authority and qualifications, and abidance to the Professional Conduct Rules. From personal experience, it can be quite confidently said that lawyers working for the Citizens Advice Bureau practice law ethically. They abide by the professional rules of conduct, act ethically within their work, and live an ethical life outside of work in service to the community.
  
  What makes a good lawyer isn’t simple. A lawyer must act ethically within all parts of life, but most importantly, in their work, in order to achieve what could be considered a ‘good’ lawyer. Firstly, a good lawyer combines duty to the Professional Rules of Conduct (Delos), which incorporates their duty to the court and the advancement of the interests of their client. Secondly, a good lawyer adheres to achieving justice, and aiming for the best outcome in their actions and decisions (Delos). Thirdly, a lawyer incorporates the virtues of ordinary moral institutions, such as honesty, respect, compassion and the keeping of promises. Finally, a lawyer balances their work with life outside, in keeping to their responsibilities to their family, friends, and the community. A good lawyer incorporates all of these things.
  
  
  
  References:
  1. The Law Society of Western Australia Professional Conduct Rules, December 2005 Revision, s 2.2.
  2. Process of Ethical Decision making: ET 100, Introduction to Ethics (Handout). University of Notre Dame Australia
  3. Patrick Schiltz, ‘Money and Ethics: The Young Lawyer’s Conundrum’ (2000) Notre Dame Magazine.