Re-cap

Automatism

R v. Burgess sleepwalking

A argued 1. no MR and 2. sane automatism Ct held no falls within definition of McNaghten rules (sleepwalking is not conscious what would have happened if it was a conscious disease?) As long as disease of the mind was due to an internal factor

When dealing with cases of automatism - English cases have focused on definition of disease of mind (internal/external) rather than unconscious or control
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Automatism

Distinction between internally caused and externally caused creates problems Quick
Hypoglycaemic overdose of insulin Sane automatism

Hennessey
Hyperglycaemic forgot to take insulin Insane automatism

PROVOCATION
Special exception 1 to s 300

History of provocation

English common law

Se defendo was a complete defense, murder mandatory death penalty 16th century - social context - honorable man Today rational man (objective test, control feelings)

Common law

Development by categories narrow development Codification

Provocation in the Penal Code

Partial defense from murder to culpable homicide Mitigating factor in some non-fatal offences (s. 334 hurt, s. 335 grievous hurt)

Rationale for recognizing provocation

Partial justification

Past- idea of honor V at fault for provoking A?

What you did was wrong, but ordinary person would have lost selfcontrol Why not full excuse? Duress is full excuse Killing in fear vs killing in anger What message does criminal law send by recognizing provocation? Can punishment of provoked crimes fulfill objectives of criminal punishment: retribution, deterrence etc.

Partial excuse

Why not get rid of provocation?

Provoked honor killings

Pakistan Penal Code (Indian Penal Code origins) grave and sudden provocation

Sher Ali v State (1985)

2004 amendment to criminalize specifically murder committed in the name/pretext of honor

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s. 300

When culpable homicide is not murder Exception 1.Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident. Explanation.Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

s. 300 provisos

(a) that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; (b) that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; (c) that the provocation is not given by anything done in the lawful exercise of the right of private defence.

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Additional requirements

Nanavati
Grave and sudden --- is whether reasonable man (same class of society, same situation of A) would lose self-control Words or gestures Mental background created by previous acts of V relevant Killing should be traced to loss of control from provocation not after has cooled down no premeditation or calculation

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Culpability of A

A cannot have sought or voluntarily offered provocation Voluntarily

S. 39 Edwards (Privy Council, Hong Kong) Predictability/foreseeability of provocation in response to As own words/actions Objective test Does not hold on this point But ct recognizes that the mere pushing away of A was not surprising given As belligerent behavior and wont exculpate A

Common law position

Tan Chun Seng

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Nature of provocation: grave and sudden

Grave and sudden Why this requirement?

Shows loss of self-control (evidential) We are only going to recognize the weakness of ordinary men not that of the particularly hottempered or pugnacious (normative limit)

Must be sufficiently grave and sudden that a reasonable person would lose self-control (read into the Penal Code)
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Nature of provocation: grave and sudden

Is grave and sudden requirement fair?

Implies a single event - Loss of self-control need not be in response to single event Gendered understanding of loss of self-control
Continuance of initial provocation A still in provoked State

Multiple incidents of provocation

e.g. Sundarti breathing spaces not long enough to cool-off; provocation still existing E.g. Nanavati mental background Che Omar must still be grave and sudden Sundarti with this mental background when provocative event occurred sufficiently grave (last straw by itself need not be)

Accumulated provocation

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Nature of provocation

Words vs. action Hearsay

Is it reasonable to react based on hearsay? On rumor and gossip?

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Provocation from who and at who?

At who?
Need not be directed at A Indreswar Kalita at As mother

From who?
Needs to emanate from V What if it emanates from some other person?

Tan Chun Seng: V adopts the provocation - needs to have clear adoption (aligning himself with the provocateur)
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Loss of self-control

Actual, subjective loss of self-control how much loss?

killed due to loss of self-control YMC proposal: MR for murder formed as a result of the loss of selfcontrol Sundarti (Maid killing) prosecutor alleged pattern of behavior dont show loss of self-control (calmness post-killing) Court held cannot generalize, different people react differently in different situations

Subjective assessment of A

Relevance of cooling period

Nanavati: 4.Fatal blow traced to influence of passionnot after passion had cooled down by lapse of time Cooling period should only be one factor to be considered

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Loss of self-control

Was A acting under actual loss of self-control (Subjective inquiry) Question of fact
Sundarti Generally mild-mannered frenzy of injuries, tremendous force enraged attack - shows loss of self-control Multiple wounds dont always show loss of selfcontrol depends on case

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Loss of self-control

Reasonable man in similar circumstances (Objective inquiry)

Standard of self-control vs. particularly badtempered person

English common law

Age, gender characteristics affecting gravity (that go to the sting of the provocation, not the capacity for self-control)

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Who is the reasonable man?

Ordinary vs. Abnormal mental characteristics

Generally, abnormalities not to be considered when deciding on level of self-control But may be taken into account in considering the sting or gravity of provocation R/s between provocation and DR
Kwan Cin Cheng consider the reasonable person in the As emotional state at that time

Mental state experienced by ordinary people

Line is hard to draw (abnormality only relevant to sting)

Marshall UK case: Glue-sniffer nagged about glue-sniffing ct held consider as ordinary glue-sniffer

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Is there a proportionality requirement?

References to proportionality in cases

If you lose self-control can you respond proportionately? What is the role of proportionality here? (// duress)

Evidential Limiting factor dont want people over-reacting expect ordinary resistance to fear (duress) and anger (provocation)

Kwan Cin Cheng

Just one factor to be considered when deciding whether provocation grave and sudden (to cause reasonable person to lose control)

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Kwan Cin Cheng

A was charged with murdering V, his exgirlfriend whom he still loved deeply. A pleaded provocation in that V had made callous remarks towards him when A said that life was meaningless without her and he was thinking of committing suicide.

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Kwan Cin Cheng

The term reasonable person is misleading; preference for ordinary person.

Difference between personal characteristics that affect gravity of the provocation and those affecting the ordinary persons power of selfcontrol.

Proportionality
is only one factor to be considered when deciding whether provocation grave and sudden; whether exercised self-control expected of ordinary person

Seems to adopt more subjective than objective approach

Looked at mental anguish in deciding whether grave and sudden enough

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Who is the reasonable man?

Racial/religious background Abdul Razak bin Dalek [2007] 2 MLJ 255

Ordinary man of Chinese community in Brunei Consider class of society customs, manners, way of life, traditional values, etc in short, the cultural, social and emotional background of the society in which the A belongs Case-by-case determination

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Provoked honor killings

People v Chen (U.S.) 1989

Cultural pressures had affected A driven to violence by traditional Chinese values about adultery and manhood Diminished capacity (DR defense) 5 years

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