The defense of provocation is raised for a charge or on appeal for a conviction of murder and it is reliant or based on the fact that if it wasn’t for the act or the actions of the victim, the accused would not have killed the victim i.e. the victim has said or done something which prompted or compelled the accused to act in the manner that her or she did.
This could be offending gestures, words spoken or actions done to incite the accused and is a spur of the moment crime or a crime that occurs at the heat of the moment.
The test to determine whether the accused was provoked or otherwise is similar to the objective test in that the question that the courts will pose or ask is would a reasonable man have acted or reacted in the manner that the accused did.
In R v Duffy (1949) the accused killed her husband with a hammer and a hatchet while he was asleep. Her husband had been abusive towards her and she had been subjected to abuse all throughout her marriage. The accused was arrested and convicted. The accused appealed.
It was decided that provocation was an act or a series of acts that were done that would cause the accused to suddenly lose control or react at the heat of the moment. An accused who had time to think and plan could not raise the defense of provocation and if anything, the fact that the accused had time to reason implies that there was intent. The accused was found to be guilty.
Provocation or the act of provoking the accused must be spontaneous and the act of killing the victim must have occurred almost immediately after the provocative act. If there was a time lapse between the provocative act and the act of killing the victim then the defense of provocation is no longer a valid defense and if anything, it becomes a premeditated act and it is sufficient to infer intent.
In R v Ibrams & Gregory (1982) the accused (2 men) planned to inflict serious bodily harm to an ex-boyfriend of one of the accused’s girlfriend. The victim was particularly brutal and had threated his ex-girlfriend and her new boyfriend with violence on numerous occasions. The pair attacked the victim while he was in bed and while hitting him they went too far and killed him. They were charged with murder and they raised the defense of provocation in that the victim’s conduct was provocative and that they had lost all control while they were hitting him and it was the loss of control that had led to his death.
The court held that the fact that the act was premeditated implied that the accused did in fact intent to inflict some sort of bodily harm, albeit a less serious type of harm. Loss of control was something that occurred at the spur of the moment caused by something that the accused had seen, heard or experienced and it is not something that occurred while the accused were in process of inflicting bodily harm.
The ordinary or reasonable man in instances and cases of provocation is someone who is the same age as the accused. If the accused is a 9-year-old boy then the reasonable man in that particular instance would also be a 9-year-old boy.
In DPP v Camplin (1978) the accused was a 15-year-old boy who had been sexually assaulted, albeit seriously by the victim, a middle-aged man, and once the act was complete, the man laughed at the accused at which point the accused lost all control and grabbed a chapatti pan that was close to him and hit the victim over the head with it thereby killing him. The accused was charged and convicted. At the trial, the judge directed the jury in the following manner: – should they find that a reasonable man would not have acted in the manner that the accused did, they should convict.
The jury accordingly convicted the boy for murder and the accused appeal. On appeal, it was decided that the trial judge had erred in his direction and that the jury ought to have taken into account the accused’s age. The conviction was reduced to that of manslaughter.
Copyright © 2018 by Dyarne Ward