Crime XXI - Manslaughter III
In
order for the defense of provocation to apply in instances of partners, lovers,
couples, spouses etc, the relationship must be a relationship that is ongoing
or a relationship that is still very much alive. The same can be said in
instances where the accused commits a crime of passion (crime passionnel).
Once
a relationship is over or has been terminated or has died a natural death, an
accused cannot claim that he was provoked by the actions of his ex-girlfriend
or her ex-partner.
Let’s
say for example an ex-boyfriend comes across his ex-girlfriend in a car with
another man and then proceeds to interfere or intervene for reasons best known
to him and his ex-girlfriend’s new boyfriends is abusive towards him and in
anger he draws a knife out of his back pocket and stabs the man to death. In
this instance it is highly unlikely that the defense of provocation is going to
be made available to him.
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 victim 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. The appeal was
allowed on the grounds of diminished responsibility however the judge did
stress that under normal circumstances both defenses should be raised in the
first instance otherwise the defense might exhaust one defense before
attempting another. It was decided that the accused was not guilty of murder
and a retrial was ordered.
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. The accused appealed.
The
conviction for murder was quashed and replaced instead with manslaughter. Loss
of temper or provocation as a whole is a subjective thing and therefore has to
be looked at from the state of mind of the accused. If the objective test were
applied, a reasonable man would not have stabbed the victim and the accused
would most likely be found to be guilty. However reasonable people do not
resort to violence, not in most instances anyway and therefore there may be
other inherent factors that compelled the accused to act in the manner that he
did.
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
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.
Copyright
© 2019 by Dyarne Ward
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