seminar 11 provocation

7/30/2019 Seminar 11 Provocation

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Re-cap


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Automatism

R v. Burgesssleepwalking

A argued 1. no MR and 2. sane automatism

Ct held

nofalls within definition of McNaghten rules(sleepwalking is not consciouswhat would havehappened if it was a conscious disease?)

As long as disease of the mind was due to an internalfactor

When dealing with cases of automatism - Englishcases have focused on definition of disease of mind(internal/external) rather than unconscious or control


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Automatism

Distinction between internally caused and

externally caused creates problems

Quick

Hypoglycaemicoverdose of insulin

Sane automatism

Hennessey

Hyperglycaemicforgot to take insulin

Insane automatism


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PROVOCATION

Special exception 1 to s 300


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History of provocation

English common law

Se defendowas a complete defense, murder mandatory

death penalty

16th

century - social context - honorable man Todayrational man (objective test, control feelings)

Common law

Development by categoriesnarrow development

Codification


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Provocation in the Penal Code

Partial defensefrom murder to culpable

homicide

Mitigating factor in some non-fatal offences (s.

334 hurt, s. 335 grievous hurt)


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Rationale for recognizing provocation

Partial justification

Past- idea of honor

V at fault for provoking A?

Partial excuse

What you did was wrong, but ordinary person would have lost self-control

Why not full excuse? Duress is full excuse

Killing in fear vs killing in anger

Why not get rid of provocation?

What message does criminal law send by recognizing provocation?

Can punishment of provoked crimes fulfill objectives of criminalpunishment: retribution, deterrence etc.


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Provoked honor killings

Pakistan Penal Code (Indian Penal Code origins)

grave and sudden provocation

Sher Ali v State (1985)

2004 amendment to criminalize specifically murder

committed in the name/pretext of honor


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s. 300

When culpable homicide is not murder

Exception 1.Culpable homicide is not murder if the

offender whilst deprived of the power of self-control

by grave and sudden provocation, causes the death ofthe person who gave the provocation, or causes the

death of any other person by mistake or accident.

Explanation.Whether the provocation was grave

and sudden enough to prevent the offence from

amounting to murder is a question of fact.


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s. 300 provisos

(a) that the provocation is not sought or voluntarily

provoked by the offender as an excuse for killing or

doing harm to any person;

(b) that the provocation is not given by anything donein obedience to the law, or by a public servant in the

lawful exercise of the powers of such public servant;

(c) that the provocation is not given by anything done

in the lawful exercise of the right of private defence.


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Additional requirements

Nanavati

Grave and sudden --- is whether reasonable man(same class of society, same situation of A) -

would lose self-control Words or gestures

Mental background created by previous acts of Vrelevant

Killing should be traced to loss of control fromprovocationnot after has cooled downnopremeditation or calculation


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Culpability of A

A cannot have sought or voluntarily offered provocation

Voluntarily S. 39

Common law position

Edwards (Privy Council, Hong Kong)

Predictability/foreseeability of provocation in response to As ownwords/actions

Objective test

Tan Chun Seng

Does not hold on this point

But ct recognizes that the mere pushing away of A was not surprisinggiven As belligerent behavior and wont exculpate A


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Nature of provocation:

grave and sudden

Grave and sudden

Why this requirement?

Shows loss of self-control (evidential)

We are only going to recognize the weakness ofordinary men not that of the particularly hot-tempered or pugnacious (normative limit)

Must be sufficiently grave and sudden that areasonable person would lose self-control(read into the Penal Code)


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Nature of provocation:

grave and sudden Is grave and sudden requirement fair?

Implies a single event - Loss of self-control need not be in response tosingle event

Gendered understanding of loss of self-control

Multiple incidents of provocation Continuance of initial provocationA still in provoked State

e.g. Sundartibreathing spaces not long enough to cool-off; provocationstill existing

Accumulated provocation

E.g.Nanavatimental background

Che Omarmust still be grave and sudden

Sundartiwith this mental backgroundwhen provocative event occurredsufficiently grave (last straw by itself need not be)


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Nature of provocation

Words vs. action

Hearsay

Is it reasonable to react based on hearsay? On

rumor and gossip?


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Provocation from who and at who?

At who?

Need not be directed at A

Indreswar Kalitaat As mother

From who?

Needs to emanate from V

What if it emanates from some other person?

Tan Chun Seng: V adopts the provocation - needs to

have clear adoption (aligning himself with the

provocateur)


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Loss of self-control

Actual, subjective loss of self-controlhow much loss? killed due to loss of self-control

YMC proposal: MR for murder formed as a result of the loss of self-control

Subjective assessment of A Sundarti (Maid killing) prosecutor alleged pattern of behavior dont show loss of self-control

(calmness post-killing)

Court heldcannot generalize, different people react differently indifferent situations

Relevance of cooling period Nanavati: 4.Fatal blow traced to influence of passionnot after

passion had cooled down by lapse of time

Cooling period should only be one factor to be considered


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Was A acting under actual loss of self-control(Subjective inquiry)

Question of fact

Sundarti

Generally mild-mannered

frenzy of injuries, tremendous force enraged attack - shows loss of self-control

Multiple wounds dont always show loss of self-controldepends on case


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Reasonable man in similar circumstances

(Objective inquiry)

Standard of self-control vs. particularly bad-

tempered person

English common law

Age, gender

characteristics affecting gravity (that go to the

sting of the provocation, not the capacity for

self-control)


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Who is the reasonable man?

Ordinary vs. Abnormal mental characteristics

Generally, abnormalities not to be considered when deciding on levelof self-control

But may be taken into account in considering the sting or gravity ofprovocation

R/s between provocation and DR

Mental state experienced by ordinary people Kwan Cin Chengconsider the reasonable person in the As emotional

state at that time

Line is hard to draw (abnormality only relevant to sting) MarshallUK case: Glue-sniffernagged about glue-sniffingct held

consider as ordinary glue-sniffer


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Is there a proportionality requirement?

References to proportionality in cases

If you lose self-control can you respond proportionately?

What is the role of proportionality here? (// duress)

Evidential Limiting factordont want people over-reactingexpect ordinary

resistance to fear (duress) and anger (provocation)

Kwan Cin Cheng

Just one factor to be considered when deciding whetherprovocation grave and sudden (to cause reasonable

person to lose control)


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Kwan Cin Cheng

A was charged with murdering V, his ex-

girlfriend whom he still loved deeply.

A pleaded provocation in that V had made

callous remarks towards him when A said that

life was meaningless without her and he was

thinking of committing suicide.


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Kwan Cin Cheng

The term reasonable person is misleading; preference forordinary person. Difference between personal characteristics that affect gravity of the

provocation and those affecting the ordinary persons power of self-control.

Proportionality is only one factor to be considered when deciding whether

provocation grave and sudden; whether exercised self-controlexpected of ordinary person

Seems to adopt more subjective than objective approach Looked at mental anguish in deciding whether grave and sudden

enough


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Who is the reasonable man?

Racial/religious background

Abdul Razak bin Dalek[2007] 2 MLJ 255

Ordinary man of Chinese community in Brunei

Consider class of society

customs, manners, way of life, traditional values,

etcin short, the cultural, social and emotional

background of the society in which the A belongs

Case-by-case determination


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Provoked honor killings

People v Chen (U.S.) 1989

Cultural pressures had affected Adriven to

violence by traditional Chinese values about

adultery and manhood

Diminished capacity (DR defense)

5 years

seminar 11 provocation

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