Crime – Infanticide II

The situation is somewhat more complicated in developing countries because despite some official figures being released, I suspect that the figures in these countries are higher than what they are or what they are perceived to be because a lot of births go unreported especially in rural areas with little or no medical facilities (95% of infants who are killed before they reach the age of 1 are not born in hospitals).

Now a majority of these infants are killed by their mothers usually in the first week of birth but even if they survive the first week they are still at risk and many are killed before they reach their first birthday by either their fathers or their stepfathers.

Overall the figures are high in both developed and developing countries. While a majority of the infants under the age of 1 or below the age of 1 that are killed in developing countries are female the same cannot be said for infants the same age that are killed in developed countries and in the latter there seems to be no gender preference and if anything it is the reverse i.e. more boys than girls below the age of 1 are killed and it appears to be more prominent in some communities than others and once again I’m not going to pinpoint any community because our objective here is to merely learn more about the crime.

The difference in the gender of infants that are killed in developing countries and developed countries once again suggests that there are different factors that come into play but it would be fair to say or surmise that the inability to provide for oneself or the inability to satisfy the needs of the parents with a child in the family or an additional child in the family would be the prime factor that leads to the killing of infants below the age of 1 in developed countries.

The statistics are high and the figures are there for everyone to see and for those who are keen on finding out what the figures are and other salient features with regards to the killing of infants, the figures are normally tabulated under infant homicides.

In many developing countries female infants below the age of 1 are killed because social norms and cultural commitments place a financial strain on the families and the flow of thought may be that regardless of whether it is right or wrong, we are not judges and nor are we empowered in any way to judge anyone, it is better to kill the child than to let her suffer for the rest of her life or as some may see it or perceive it, the lesser of two evils. These are all signs and symptoms of abject poverty.

Overall the infanticide rates in developed countries seems to be dropping and that’s probably due to concentrated efforts by all parties concerned to stem the tide and the fact that parents with small incomes can still continue to raise their children with some help has played a big part in stopping infant homicides from spiraling out of control.

In addition to socio-economic factors, religion also plays a part and the stigma that is attached to children born out of wedlock doesn’t help matters.

Young unmarried mothers below the age of 19 have the highest propensity to commit infanticide and therefore we are dealing with some very young offenders and most of them are not mature enough to think or to reason and they might not even know where to go for help even if they wanted or needed to.

It is difficult to explain a baby for anyone in their teens and it is even more difficult if the parents come from broken or dysfunctional homes. With infanticide we’ve got to look at all these factors before we make up our minds.

A lot of us are most likely under the impression that a majority of people who commit infanticide are illiterate or don’t know any better or have never got past high school but that is sometimes just not the case.

You’d be surprised at who the offenders sometimes are and they commit the act simply because they want a second chance in life and doing away with the baby gives them the opportunity to do just that.

It’s difficult to point the finger at some of these people and say they’re cold blooded murderers just because they’ve fulfilled all the requirements that criminal law needs to convict for murder i.e. they had the intention to kill and having the intention to kill they went on to commit the act.

Copyright © 2018 by Dyarne Ward

Crime – Infanticide I

Infanticide or infant homicide is defined as the act of killing a child within a year of the child’s birth. While it is a crime that is mostly associated to developing countries or third world countries or countries that are still lagging behind the rest of the world, it is not unusual to come across cases of infanticide in countries that do not fit the tag or label of developing countries and that tends to suggest that there are various other causes or factors that compels the offender to commit the crime other than just poverty.

Technically while it is murder, because the intention to kill is or was always there, in most of these cases it is clear that the parents or parent intended to kill the child, the accused may still have a defense under diminished responsibility because the intention to kill may have been brought on by a psychiatric illness.

Now it is worth remembering that diminished responsibility is different from insanity and despite what most people may or may not think, diminished responsibility is not insanity. The test for diminished responsibility is a “a preponderance of probability” and the M’Naghten rules are used to establish insanity.

I’m going to divide infanticide into two categories i.e. that which occur in developed countries and that which occur in developing countries and the reason I’ve done so is because the underlying factors that compel the offenders to commit the crime are different or rather the offenders are motivated by different factors.

In a leading case in a major European city for example and I don’t really want to go into the details of where and when because our objective here is to understand and appreciate what infanticide really is and to try and acquire some understanding of it and to also realize that it could occur anywhere in the world and not pinpoint any area or region, the offender and her partner were charged with killing up to 8 babies.

The babies were suffocated and wrapped in plastic before the remains were stashed away either is some part of the home or disposed of in garbage bags and at the trial the prosecution adduced evidence to show that the crimes were committed not because the children would place a financial burden on the parents but because the parents wanted to remain sexually active.

I’ve highlighted this because whatever we choose to label it egoistic, machoistic or sadistic, these crimes are motivated by some sort of a mental imbalance and these are the types of situations where we can bring in the defense of the offender not being mentally sound or diminished responsibility.

If we were to use the reasonable man’s test the offender or the accused would no doubt be found guilty but these are crimes or offences that the reasonable man cannot contemplate or offences that are beyond the contemplation of the reasonable man or the ordinary man and therefore it is to some degree pointless applying the test because the only verdict that is going to be returned is that of guilty of murder or guilty of multiple murders.

Sometimes we have no choice but to look into the accused’s state of mind and we do this because we want to prevent these types of crimes from happening again.

The other reason why I have mentioned the case is because infanticide is not always caused by the offender’s inability to financially cope with caring for a child. It is the most common reason but it is not always the sole reason.

There is also a distinction between infanticide and child abuse and unless there is evidence that the child has been abused prior to death, the accused or the offender should not be tried for child abuse. In most instances of infanticide, the child is killed soon after the child is born. Child abuse implies wickedness or cruelty towards another human being, infanticide often implies a sense of helplessness.

The second factor that we should take account of is the age of the offender. Sometimes the offender is just too young and as hard as it may be to believe, some of these offenders just don’t know any better. Many of them don’t know how to survive with a child. Some of them can barely make it on their own and a child is an additional burden that they just can’t cope with.

In most of these cases especially when it is splashed across the front-page that the remains of a baby were found somewhere, the mother is instantly to blame and nothing is ever said about the father. I think we all know that it takes two people of the opposite sex to make babies and infanticide is one of those crimes where we can look at making both the mother and the father responsible or accountable.

Copyright © 2018 by Dyarne Ward

Crime XXXI – Provocation VII

R v James & Karimi (2006) concerns two separate appeals where the defense of provocation was raised. In the former the accused killed his wife after they’d been separated for four months, rather violently because she’d entered into a relationship with another man. The prosecution was willing to accept a verdict of manslaughter based on diminished responsibility supported by psychiatric reports but the accused refused and chose instead to rely on the defense of provocation which is more difficult to satisfy and is reliant on the reasonable man with the exception of the accused’s age as per DPP v Camplin (1978).

In the latter, the accused was an immigrant who was allowed to stay in England with his wife and soon after his arrival his wife formed a new relationship with another man. His wife’s new partner armed with a knife confronted the accused, verbally insulting him as he did so, and the accused a trained former soldier, disarmed him and stabbed him with the knife. The accused was charged and convicted and he appealed on the grounds of provocation.

Both appeals were dismissed. In the former, because the accused relied on the defense of provocation, the test for provocation was, as far as the courts were concerned, still very much that of “if a reasonable man would have acted or reacted in the manner the accused did” and in the latter taunts, jeers, boos, offending and insulting words directed at the accused may not be sufficient to raise the defense of provocation for murder. Interestingly enough in Karimi the accused did not raise the defense of self-defense but that could have been due to the fact that having disarmed the victim the accused took matters into his own hands and stabbed him.

In R v Hill (2008) the accused and the victim, a homosexual man, were friends. They were occasional drinking buddies and on the night of the incident they’d been out drinking after which they returned to the victim’s flat and the accused fell asleep. The accused claimed that he was awakened in the middle of the night by advances made at him and in response he struck the victim who subsequently hit his head on a chair and died as a result. During the trial, it came to light that the cause of death was not a hit or a blow to the head but rather strangulation.

The jury convicted for murder and the accused appealed for a retrial on the grounds that he had not raised the defense of provocation. His appeal was denied and the Court of Appeal in line with the dictum in R v Ahluwalia (1993) decided that the defense should have been raised in the first instance and the appeal for a retrial was denied.

From what we have seen so far, I think we can at the very least form an understanding of what provocation really is. Words and actions are in most cases not sufficient to constitute provocation and in order to raise the defense of provocation the accused must show that there was tangible impact that prompted the accused to act or react in the way and manner he or she did.

Provocation is a defensive mechanism and not an offensive mechanism and as such the accused does not act and raise the defense of provocation but rather reacts to the situation and then relies on the defense of provocation to reduce the severity of the crime. If the accused were to act then the defense of provocation would not be made available to the accused see R v Duffy (1949).

With regards to acts committed out of jealousy and instances of the Othello Syndrome they generally do not constitute provocation see R v Weller (2003) unless it creates a clear mental imbalance see R v Vinagre (1979).

The test in R v Newell (1980) was disapproved and the courts will not look into whether the response was sparked by a permanent characteristic of the accused as per the majority decision in Luc Thiet Thuan (1997) (Privy Council) but would rather use the test in R v Smith (Morgan) (2000) which is in line with the minority decision in Luc Thiet Thuan (1997) (Privy Council) in that the courts would look for evidence, especially medical evidence to determine if the accused suffered from a long standing mental illness or a mental impairment that had caused the defendant to be provoked or act in the way or manner he or she did. If there is no evidence to suggest that there was a mental imbalance that caused the accused to act in the way or manner he or she did than the accused would be convicted for murder.

Copyright © 2018 by Dyarne Ward

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

Crime XXIX – Provocation V

The willingness of the courts to recognize mental illnesses was made clear in R v Smith (Morgan) (2000). Mental illnesses are a common facet of everyday life and one of the most common types of mental illness is depression. Just to give us an idea of how common it is, in the United States alone close to 17% of the population suffer from depression and almost 390 million people worldwide suffer from the illness. It is a subtle illness that sometimes has far reaching affects.

In R v Smith (Morgan) (2000) we are given the opportunity to examine if an accused who is suffering from depression which in most instances is a long-term illness can have a conviction for murder reduced to that of manslaughter because he or she is suffering from depression.

Both the accused and the victim were criminals and while they were drinking they got into an argument over some tools that they had stolen. The argument got heated and prompted the accused to pull out a knife and stab the victim as a result of which the victim died. The accused was charged and convicted for murder and the accused appealed on the grounds that the trial judge had not directed the jury on the mental illness that he was suffering from i.e. depression.

The court of appeal accordingly reviewed the facts of the case and the accused’s conviction for murder was substituted with that of manslaughter. The court decided that the trial judge should have taken into account the accused’s mental condition. The prosecution appealed.

The House of Lords quashed the appeal and based its decision on the dissenting judgment in the case of Luc Thiet Thuan (1997) (Privy Council) and held that the mental characteristics of the accused can be taken into account when assessing if the accused should be convicted for murder or manslaughter.

To date there is no evidence or no scientific evidence to suggest that those that suffer from mental illnesses have a higher propensity or a greater tendency to commit crimes. In anything the evidence suggests otherwise and often crimes are committed by people who have clarity of thought.

In R v Weller (2003) we are once again confronted with the situation where a male partner kills his female partner in anger. The accused and the victim had an argument which prompted the victim to end her 12-month relationship with the accused.

When the victim went over to their flat to collect her belongings, another argument ensued and the accused in anger strangled the victim to death.

The accused was charged and convicted for murder. The accused appealed on the grounds of provocation. During the trial, it became evident that the accused was extremely jealous and possessive and the accused contended that the judge should have directed the jury accordingly. The appeal was quashed.

With regards to murder cases involving partners that result in the male partner killing his female partner because he was overly possessive or jealous – a syndrome that physiatrists refer to as the Othello syndrome or jealousy that is unfounded – the courts are reluctant to accept it as a defense because as per Lawton LJ it is exactly the type of conduct that wives and female ex-partners should be protected against.

The accused however may be convicted for manslaughter instead of murder if there is clear evidence to suggest that the excessive possessiveness and jealousy created a mental imbalance. Having said that these types of crimes are becoming increasingly common and if defenses like the Othello syndrome were allowed, they’d make women all the more vulnerable.

It is difficult under most circumstances to exempt male offenders from crimes against their female partners on the grounds of jealousy or overwhelming emotions or an outpour of emotions especially in this day and age when there are so many counselling and remedial services available.

No matter how we look at it and whichever perspective we view it from there are no reasonable grounds to exempt them and to categorize everyday events or things that occur in the natural course of life as provocation would be absurd and it would, in cases of male partners, place women at risk. The law has to move with the times and has to evolve accordingly and at present overall public sentiment dictates or demands greater freedom for women.

Copyright © 2018 by Dyarne Ward

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

Crime XXVII – Provocation III

In R v Richens (1993) the accused was aged 17 at the time. The victim had raped the accused’s girlfriend and boasted about it to the accused. The accused lost control and stabbed him with a knife thereby killing him. According to the direction given by the trial judge, losing one’s temper was not an excuse to kill. Most people lost their tempers at some point in time or other but that does not mean that they’d be prompted or compelled to stab someone to death. The jury accordingly convicted for murder and the accused appealed.

The conviction for murder was quashed and replaced instead with that of manslaughter. Loss of temper or provocation as a whole is a subjective thing and therefore it has to be looked at from the perspective of the accused’s state of mind at the time he or she committed the act.

Furthermore in accordance with the test in DPP v Camplin (1978) the accused has to be judged in accordance with the standards that would be imposed on a 17 year old and not in accordance to the standards that is expected of a reasonable man.

The term reasonable man itself implies that the person in question is of sound mind and judgment and has the presence of mind and the clarity of thought of a mature man.

Scientifically, as hard as it may be to accept, men overall only mature at the age of 40 or above and while some mature faster than others if we were to set an age as to when men really start to think, it would be from the age of 21 onwards and a 17 year old would not fit the criteria of a reasonable man and accordingly is best judged in accordance with the standards imposed on a 17 year old.

In R v Morhall (1995) the accused was a long-term glue sniffer and the victim taunted and made fun of his habit. The accused in retaliation to the taunts and jeers stabbed him 7 times with a knife thereby killing him. At his trial, the matter before the court was whether glue addiction was a characteristic or a facet of the reasonable man.

The trial judge directed the jury to the effect that the accused’s characteristics was not something that could be attributed to the reasonable man and therefore the accused was denied the defense of provocation and was convicted for murder. The accused appealed.

On appeal, the House of Lords decided that it was not a matter of whether the characteristics of the accused were credible or otherwise or whether it is a trait a reasonable man would possess. It was a matter of if the characteristic was a permanent feature of the accused or a long-term facet of the accused as opposed to something that happened or occurred in the passing in line with the test in R v Newell (1980). The appeal was allowed and the conviction for murder was substituted with a conviction for manslaughter.

According to the Newell test in order for the jury to decide whether there was provocation, the jury ought to take into account the long-term, permanent characteristics of the accused. Permanent characteristics denotes a lasting or enduring feature and not something that happens in passing or something that would fall into the category or the classification of “normal vicissitudes of life” i.e. a sudden change in circumstances usually a downturn or a reversal of fortune for example when a partner in a relationship decides to end or terminate the relationship. It can be saddening or depressing but on a charge of murder that sudden change in circumstances cannot exempt the accused from being convicted.

In R v Newell (1980), the accused was an alcoholic with a drug problem who was recovering from an overdose at the time of the incident. He’s girlfriend had recently left him and the victim a male friend made sexual advances at him. The accused in response hit him over the head with a metal ashtray thereby killing him. The accused was charged and convicted for murder. The accused appealed and raised the defense of provocation.

On appeal, it was decided that the accused’s condition was temporary and not something which was permanent and therefore the accused was denied the defense of provocation. The Newell test was later rejected in Luc Thiet Thuan (1997) (Privy Council) and the judge stated that by looking at the permanent characteristics of the accused the law had taken a wrong turn.

Copyright © 2018 by Dyarne Ward

Chola Dynasty I

The legacy of the Cholas, its monumental temples, were discovered by accident when in 1838 an English explorer while hacking his way through the dense jungles of Southern India, Tamil Nadu to be precise, came across what would later be dubbed the erotic temples of India because of the lurid and lucid sculptures, carvings and engravings that adorn the walls of these temples.

The temples were discovered in the same manner that Henri Mouhot discovered the lost temples of Angkor. Henri Mouhot after working in Siam was travelling through Cambodia collecting zoological and botanical samples when while cutting his way through the dense forests of Cambodia he stumbled across the temples of Angkor.

The first question that comes to mind with regards to both these temples is; are these temples in any way connected? I don’t believe that they are and I am certain that we are dealing with two distinct and separate blends of Hinduism. For starters the Cholas are Shaivites and the Angkor temples at a first glance look to be built by Vaishnavites.

The Cholas have left us with many unanswered questions for example who they were or if they were indigenous or otherwise and the discreet and secretive blend of Hinduism that they practiced which gave them the ability to build these mammoth architectural splendors remains a mystery.

The first question is easy enough. The Cholas were indigenous or as indigenous as a people can be but there are two possible points of origin that date back to about 3300 BC.

They are by no means a new people and it’s fair to say that they have been around for sometime but it’s highly unlikely that they’ll be around for much longer and by the turn of the century the Cholas or what remains of them or those that carry the Chola genes will no longer be there simply because of migration and mixed-marriages.

Now the Cholas carry the designation thevar behind their names and a bulk of the Chola army though they are known as thevars are kallars. According to a study done by the department of human genetics and anthropology, university of Madras and the anthropology and the human genetics unit of the university of Kolkata, West Bengal India, titled genetic structure of the early immigrants (Mukkalathor) – the term Mukkalathor means the people of the three clans who are collectively known as thevars (kallars, maravars, and agamudaiyars) the kallars may be one of the first tribes to migrate out of north Africa – Southern Europe and places their point of origin in the Sinai Peninsula.

However, we have to keep in mind that most of the early Eurasian migrants to the subcontinent took the route along the Nile across the Sinai Peninsula and went all the way according to some sources to North Australia. Now there is another interesting fact that I am going to point out here.

The kallars, as was the norm with the Cholas, were a fully militarized caste and one of the weapons they used is a valari or a boomerang and it was used by the Chola army. Likewise the indigenous people of Australia also use boomerangs so there are some similarities there.

Assuming that the Cholas were migrants or early migrants and if I was to set a migration date it would be between 3300 BC – 1300 BC or during the time of the Indus Valley Civilization, it started to decline at about 1300 BC, and the most significant factor that led to the decline of the Indus Valley Civilization, as far as I am concerned is migration.

I don’t think the collapse of the Indus Valley Civilization was precipitated by war but rather the natural inflow of people or a movement of one group of people from one point to another and sometimes depending on their frailties, the original inhabitants could have succumbed to illnesses.

The original inhabitants of the Indus Valley observed a very strict diet and from all accounts they were mostly ascetics or people deeply stooped in religious practices as were the Cholas as made evident by the hundreds if not thousands of temples that they’d constructed all over South India and these type of strict adherence to religious practices requires an adherence to specific diets and as a result future generations, a few hundred years or so down the track, may not have the ability to withstand or combat various common illnesses.

Copyright © 2018 by Dyarne Ward

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

Crime XXV – Provocation I

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