seminar 11 provocation
TRANSCRIPT
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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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Loss of self-control
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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Loss of self-control
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