Crime XXX – Provocation VI

In R v Vinagre (1979) we have an opportunity to study firsthand how the Othello syndrome actually works or operates and it is something that plays on the mind of the offender. The accused suspected that his wife was having an affair with a plainclothes policeman though there was no evidence to suggest that they were having an affair and in a fit of jealousy the accused stabbed his wife 34 times thereby killing her.

The accused was charged and the trial judge accepted the plea for diminished responsibility and hence his life imprisonment was reduced to 7 years. Overall however unfounded jealousy is not a defense and it only becomes a defense under diminished responsibility when it creates a clear mental imbalance.

AG for Jersey v Holley (2005) reaffirms the fundamentals of criminal law in that the test that ought to be applied is the subjective test and the court ought to look at the accused’s state of mind at the time he or she committed the act as opposed to looking into the characteristics of the reasonable man and very much in line with Sir William Blackstone’s principle that “it is better to let ten guilty persons escape than to let one innocent man suffer” in that we are not looking for reasons to convict but rather we are looking for reasons why we shouldn’t convict and when those reasons aren’t there then the jury is left with no choice but to convict.

Granted that the spiraling crime rate, which has been prompted by various factors, has made judges and juries more inclined to convict, but the fundamentals are and still remain the same.

In AG for Jersey v Holley (2005) both the accused and the victim had a drinking problem. It was a stormy relationship to begin with and there was a history of violence for which the accused, the male partner in the relationship had spent some time in prison.

On the day of the incident, both the accused and the victim had been out drinking and while the accused returned home, the victim remained behind and she returned much later in the same day and confronted the accused with the fact that she’d been with someone else. The accused killed his partner with an axe.

He was charged and convicted for murder in the first instance. The accused appealed and the Court of Appeal quashed the conviction and ordered a retrial. He was convicted again and the Court of Appeal quashed the conviction again and reaffirmed the decision in R v Smith (Morgan) (2000).

A breach of a code of conduct prescribed by religion cannot and does not amount to sufficient provocation and if an accused kills a victim for breaching a religious principle, that act of killing will still be considered or regarded as murder and the defense of provocation would not be made available to the accused.

Now let’s briefly look at the crime of infanticide. Infanticide by definition is the crime of killing a baby within a year of the child’s birth. Under normally circumstances, with the exception of a court decision stating otherwise, the killing of an infant will be regarded as murder unless there are extenuating circumstances to suggest otherwise in which case the conviction for murder will be substituted for a conviction of manslaughter.

In Attorney-General’s Reference (No.3 of 1994) we have seen that the Court of Appeal is willing to uphold a conviction for murder if a fetus that is injured while in the mother’s womb is subsequently born and the baby survives for a certain period of time and dies thereafter because of the injuries sustained while it was a fetus.

The House of Lords substituted the conviction of murder for that of manslaughter but that is simply because at the time the act was committed the fetus was not yet born and had the fetus been born and subsequently been killed, the House of Lords might have upheld the conviction for murder.

However, the relentless crying of a newborn baby may be held to be sufficient provocation for a conviction of murder to be reduced to that of manslaughter if the baby was accidently or inadvertently killed see R v Doughty (1986).

With regards to infanticide per se it is generally committed because the parent (in case of single parents) or parents cannot afford to raise a child and it puts a financial burden on them. In such instances, I think we can safely say that the accused will either be convicted for murder or manslaughter depending on the mitigating factors.

Judges may exercise some measure of leniency and the courts may show some sympathy and a degree of clemency depending on the circumstances especially with regards to young offenders. The law doesn’t always intend to punish and sometimes it seeks to rehabilitate.

Copyright © 2018 by Dyarne Ward

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