Crime XXVIII – Provocation IV

In order for the defense to raise the defense of provocation there must be clear insurmountable evidence that the accused was provoked. If it were otherwise the accused in most murder trials would resort to the defense of provocation. The words or actions must be clear, tangible and discernible and it must be sufficient to provoke a normal person of the accused’s age.

In R v Acott (1997) the accused lived with his mother, despite being in his forties and he was financially dependent on her. His mother subsequently fell down a staircase and died while the ambulance was on its way. During the autopsy or postmortem, it was revealed that the mother did not die from the fall but rather died from an attack. The accused was arrested and accordingly charged with murder. The accused denied the allegations of murder but the jury nonetheless convicted the accused for murder. The accused appealed on the grounds that the judge had not advised the jury on provocation.

The appeal was quashed. There was no evidence to suggest that the accused was provoked and therefore the trial judge was right not to direct the jury on provocation. The accused was convicted on medical evidence which normally shows the time and cause of death. In addition to that parents often provoke their children regardless of their age but that does not mean that children should retaliate against their parents unless there is clear evidence of verbal, physical or sexual abuse.

In Luc Thiet Thuan (1997) (Privy Council) the accused tried to make his girlfriend reveal her atm pin code. She refused and the accused then tied her up and took her to the atm machine and tried to make her reveal the pin code at knife point. The victim refused yet again and instead she taunted and bereted the accused at which point the accused stabbed her with a knife and killed her. The accused was arrested and convicted for murder. At the trial, it was revealed that the defendant suffered from a mental impairment but the judge did not advice the jury on the medical evidence. The accused appealed.

On appeal, it was decided that the mental impairment or disability did not come into the equation because it did not affect the accused’s ability to reason with regards to committing murder. The appeal was quashed and the court reverted to the test that was applied prior to R V Newell (1980).

It was not that the court did not recognize mental illness. It was just that the courts were reluctant to categorically state that a person with mental illness could be provoked where a normal person could not, especially when given the fact that there is another defense available to those suffering from mental illnesses and that is diminished responsibility.

In R v Campbell (1997) for example the accused picked up hitchhiker while he was returning home from a hockey match. He drove the car to a remote location and made advances at her. The victim hit the accused in the eye to protect herself and in retaliation the accused hit the victim in the throat and the victim began to struggle gasping for air because of the damage done to her windpipe. The accused panicked and strangled her after which he hit her again in the throat with his hockey stick. The accused was charged and at the trial it was revealed that the accused suffered from a mental disability and as a result he would go into fits including epileptic seizures. The defense relied on the Newell test and raised the defense or provocation and argued that in determining whether the accused was to be found guilty of murder or otherwise the jury must take into account the accused’s permanent characteristics and given what they were, he could have been more easily provoked than a normal person and did not raise the defense of diminished responsibility. The jury convicted for murder and the accused appealed on grounds of diminished responsibility. The conviction was quashed in light of the overwhelming medical evidence that was submitted on appeal and a retrial was ordered.

Looking at the decisions above, we can come to the conclusion that when an accused suffers from a mental disability or a mental impairment, especially when there is medical evidence to support it, there is no need for the defense to raise the defense of provocation and it might as well go for the defense of diminished responsibility.

Copyright © 2018 by Dyarne Ward

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