Crime XXVI – Provocation II

Likewise, if the accused suffers from some sort of inherent disability or from some sort of mental impairment the jury have to take the disability or impairment into account before returning a verdict. In R v Raven (1982) the accused was a 22-year-old man who had the mental capacity or thought like a 9-year-old. He was suffering from an inherent disability. A homosexual man made advances at him and the accused in retaliation stabbed him with a knife and thereby killed him.

At the trial, the judge in accordance with the decision in DPP v Camplin (1978) directed the jury that the test to be applied was that of a 22-year-old man who thought like a 9-year-old boy, taking into account both the accused’s age and his inherent disability.

What amounts to provocation depends on the situation and it is not limited to acts, gestures or words spoken or written that incite or aggravate the victim. Repeated noise, constant bickering, constant demeaning of the accused can all amount to provocation and despite the fact that a reasonable man may not have been provoked, a court or a jury may decide that provocation is a valid defense under the circumstances.

In R v Doughty (1986) the accused was the father of a newborn baby who was born as a result of a cesarean. The mother was recovering at the time and the additional stress of looking after her while she recovered, doing the cooking and the other household chores etc. somehow got the better of him.

On the day of the incident, the baby was persistently crying. He did all that he could to pacify the baby and nothing seemed to work and finally he put his hand over the baby’s mouth to stop the child from crying. However, he’d pressed down harder than he intended and the baby died. The man was convicted for murder. Applying the test in DPP v Camplin (1978) it can be said with some degree of certainty that a reasonable man would not have acted in the manner that he did. He appealed and raised the defense of provocation. The defense was allowed and the conviction for murder was substituted with that of manslaughter.

In R v Johnson (1989) the accused was at a night club where he started talking to a girl. She took exception to his accent and insulted him. The accused then threatened her and her male friend intervened and poured a glass of beer over his head. The accused got angry and stabbed the victim with a broken glass thereby killing him. The accused was arrested and charged. At the trial, the accused raised the defense of self-defense but did not raise the defense of provocation. The jury rejected the defense of self-defense and the accused was convicted. The accused appealed on the grounds that he was provoked and that the trial judge had left out the fact that he may have been provoked.

The appeal was allowed. It was found that in this instance provocation was a valid defense and the conviction for murder was substituted for that of manslaughter. Words and acts depending on their intensity are sometimes sufficient to constitute provocation. The test yet again is subjective and what might constitute provocation to one party might not constitute provocation to another.

It is worth keeping in mind that the defense of provocation may apply even if the accused intended to kill. The word intent given the ordinary meaning of the word implies premeditation but intent is something that could spring into the accused’s mind minutes or even seconds before the act was committed see R v Vickers (1957). Likewise, if the act was premeditated or there is clear evidence that the accused did indeed intend to kill the victim or cause him or her serious bodily harm then the defense of provocation may be withdrawn or may not be applicable.

In R v Ahluwalia (1993), the facts are similar to R v Duffy (1949), the accused was constantly abused by her husband. The type of abuse included beating her daily and taking her money. In addition to that he was also having an affair with another woman. On the night of the incident, after subjecting his wife to verbal abuse, the accused threatened to beat her up the following morning.

Once the victim was asleep the accused doused her husband with petrol and set him alight. She was arrested and tried for murder. She raised the defense of provocation but the defense of provocation in line with the decision in R v Duffy (1949) was denied. The accused was convicted for murder and the accused appealed raising the defense of diminished responsibility. Her appeal was successful and a retrial was ordered.

Copyright © 2018 by Dyarne Ward

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