Posted: September 17th, 2017

: Law.

Topic: Law.

Order Description

Research Essay (Assessment 1)
Research Essay Question

In Masciantonio v R [1995] HCA 67, McHugh J (dissenting) said:

The ordinary person standard would not become meaningless, however, if it incorporated the general characteristics of an ordinary person of the same age, race, culture and background as the accused on the self-control issue. Without incorporating those characteristics, the law of provocation is likely to result in discrimination and injustice. In a multicultural society such as Australia, the notion of an ordinary person is pure fiction. Worse still, its invocation in cases heard by juries of predominantly Anglo-Saxon-Celtic origin almost certainly results in the accused being judged by the standard of self-control attributed to a middle class Australian of Anglo-Saxon-Celtic heritage, that being the stereotype of the ordinary person with which the jurors are most familiar.

Provide an analysis of McHugh’s dissenting judgment in Masciantonio from the perspective of liberalism.

Assignment Guidance

Over the first weeks of the unit, I will be providing further guidance and skills lessons relevant to answer the assignment question. In the meantime, please note the following:

I strongly recommend that you do not commence researching this question in week 1. Instead, please focus on completing the readings and exercises that are prescribed for the first topic. These readings and discussions are highly relevant to the assignment question.
Students who focus on the assignment question at the expense of the prescribed readings, lectures and tutorial questions will struggle to understand the issues adequately.
The question is not asking for an analysis or description of the law of provocation in the criminal justice system. While it will be necessary to consider the context of the quote and the relevant judgment, the focus of the essay is on a wider question.
In order to answer this question, you will need to understand the ‘perspective of liberalism.’
In order to answer this question, you will need to read and understand the case and particularly the argument of McHugh J set out in the quote.

Assignment Information

Due: Sunday 16 August at 11.59pm

Weight: 50%

Length: maximum 2000 words

Please view the Essential Guide for Studying Law for the word limit policy. The actual word count for your paper must be stated on the front cover or at the top of the first page of the assignment. Do not state the maximum word length on the essay cover or first page, but only the actual number of words excluding footnotes and bibliography.

Assignment Style: Please refer to the style checklist in the Essential Guide for Studying Law for details on how the assignment should be formatted.

Referencing style: Australian Guide to Legal Citation,
Marking Criteria

Structure and Development

Logical presentation of major arguments
Ability to weigh and prioritise issues and arguments appropriately
Development of thesis or argument addressing the question

Research, Analysis and Understanding

Location of relevant primary and secondary source material
Integration of source materials within analysis
Demonstration of sound grasp of relevant concepts
Clear analysis
Quality of reasoning
Appropriate use of reference materials

Presentation, Grammar and Citation

Clarity of expression
Good grammar
Proof reading/spelling
Accurate citation of sources, including using footnotes to identify references which support your argument

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