Criminal Law: Cases and Materials - Essay Example

I. Introduction Common laws of England gives weight on the philosophy of the “Reasonable Man.” Since the introduction of the reasonable man into the criminal law division through Keating J when he said in the second half of the 19th century, in R. v Welsh, “ if there be any such evidence (of provocation), then it is for the jury whether it was such that they can attribute the act to the violence of passion naturally arising therefrom, and likely to be aroused thereby in the breast of a reasonable man”1, much discussions have followed and dissenting opinions have been formulated. The most popular rhetorical questions are, what do you mean by “reasonable”? “How do you recognise a reasonable man?” “Based on what criteria will one judge as to the reasonableness of a person?” I.1 How to determine a Reasonable Man? In Bedder v Director of Public Prosecutions, the Court defined the reasonable person as the “ordinary person, is the person you must consider when you are considering the effect which any acts, any conduct, any words, might have to justify the steps which were taken in response thereto, so that an unusually excitable or pugnacious individual, or a drunken one or a man who is sexually impotent is not entitled to rely on provocation which would not have led an ordinary person to have acted in the way which was in fact carried out.2 This in effect describes a reasonable man as a mature individual, having normal disposition and physical health, and free from any undue influence. II. Defining the Reasonable Man and the Homicide Act 1957 Long before the enactment of the Homicide Act 1957, the philosophy of the reasonable man had been fairly established. Section 3 of the Homicide Act 1957 provides that where on a charge of murder there is evidence on which the jury find that the person charged was provoked (whether by things done or by things said or both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man to do as he did shall be left to be determined by the jury. Furthermore, in determining that question, the jury shall take into account everything both done and said according to the effect, which, in their opinion, it would have on a reasonable man. In Regina v Smith decided by the House of Lords, section 3 of the 1957 Act was further discussed that where there is evidence on which the jury can find that the defendant was provoked to lose his self-control, (1) the judge is bound to leave that matter to the jury and (2) the jury are to decide the matter by taking into account everything done and said according to the effect which, in their opinion, it would have on a reasonable man. 3 The enactment of the Homicide Law proved to be divisive in the light of the Philosophy of the Reasonable Man. Lord Hoffmann observes, section 3 modified the law in two respects. “First, if there was evidence on which the jury could properly find that the subjective element was satisfied, the question whether the objective element was satisfied must be left to the jury. Secondly, in determining that question, the jury must take into account "everything both said and done".4 In interpreting the law, section 3 effectively abolished the rule that words alone could not amount to provocation. “Everything both said and done” must be taken into considerations in deciding cases involving the degree of provocation which will arouse in the defendant such passion and obfuscation that will lead to momentary loss of self-control. The objective test of the sufficiency of the provocation is necessary to prove that the accused is provoked to lose his self-control must be preserved. Otherwise, mere loss of self-control would be sufficient for the defendant to claim the defence of provocation. “There must be something said or done which the jury considers might provoke a reasonable man to react in the same way as the accused.”5 . Leaving everything in the hands of the jury to interpret the characteristics of a reasonable man is dangerous and this will invite different interpretations which may not be inconsonance with the spirit of the law. In R v Camplin [1978] AC 705, the correct approach to section 3 is to be found in. For the purposes of the law of provocation a "reasonable man" means an ordinary person possessed of such powers of self-control as everyone is entitled to expect his fellow citizens to exercise in society. “The relevant characteristics of a reasonable man include mental as well as physical characteristics. To be eligible the characteristics must be sufficiently permanent and not short-lived. They must not be self-induced and therefore exclude intoxication. They do not include the characteristics of ordinary excitability, pugnacity or ill-temper.” 6 A reasonable man thereof is someone who is under normal state of mind and physical health, is not under any influence which will diminish his/her judgement or reaction to certain stimulants. III. Sufficient Provocation The origins of the current defence of provocation can be traced to Anglo-Saxon and Norman times when a distinction began to be drawn between deliberate premeditated killings, which were capital offences, and those killings which occurred in the heat of passion.7 This distinction became clearer in the sixteenth century when killings “upon a sudden affray” were prevalent. This was because drunken brawls and duels were extremely common and because the wearing of weapons ensured that these encounters often had fatal results.8 Their very prevalence, along with societal acceptance of the bearing of arms, led such killings to be perceived as a less morally reprehensible form of homicide than cold-blooded premeditated slayings.9 In the early seventeenth century, another trend was evident in the law of homicide. Malice aforethought was considered to be an essential element of murder and killings were presumed to have been committed with malice. This presumption could, however, be rebutted by evidence of provocation.10 Coke wrote that malice would be implied where “one killeth another without any provocation on the part of him that is slain”.11 In cases where malice was not implied, the act was not murder but was, as Brown has commented, “hooked on the accommodating peg of the common law felony of manslaughter ... which for purposes of reprehensibility and punishment was set roughly between ‘excusable’ homicide and murder”.12 Under our present criminal law division, this doctrine was developed and founded on the now classic, expression of Devlin J, in R v Duffy, where he defined provocation as “some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.13 Provocation as a partial defence has to show that the provoking act was such that a reasonable man would have responded as the defendant did under the same circumstances. The pivotal words of the argument are “sudden” and “temporary” loss of self-control of a reasonable man. The “slow burn principle” thereof cannot be rightfully applied in considering provocation as a defence. “It must be loss of control through anger -thus there is no cooling off period for planning or revenge but the law does allow for cumulative provocation.”14 III.1 What is considered enough Provocation? In R v Doughty the defendant had killed his baby and wanted to argue that he had been provoked by the childs persistent crying. On appeal it was held to be misdirection for the trial judge to tell the jury that the persistent crying of a 17-day-old baby could not constitute provocation, and therefore quashed the murder conviction and substituted a conviction for manslaughter. The jury should have been directed to consider how the reasonable man would have responded.15 III.2 Domestic Violence However, in cases involving domestic violence, the issue of “slow burn’ or cumulative is much agued upon considering that it involves a series of battering and cooling-off periods where the defendant could have the time to consider her position and in some instances, plot for revenge. With respect to both the objective and subjective tests it is clear that without adequate information a jury may well have recourse to popular but false notions of domestic violence. Thus, to quote the rhetorical questions of a hypothetical jury posed by Wilson J in a recent decision of the Canadian Supreme Court: “Why would a woman put up with this kind of treatment: Why should she continue to live with such a man? How could she love a partner who beats her to the point of requiring hospitalisation? We would expect the woman to pack her bags and go. Where is her self respect? Why does she not cut loose and make a new life for herself?”16 The effective exclusion of the “slow burn” principle in English law caused great distress and dismay among women. The English law views the element of “suddenness” restrictively so as to recognise only the provoking event occurring immediately before the killing. Furthermore, the element is construed as disallowing an effluxion of time between the provoking event and the killing. In contrast, the Australian law has given an liberal interpretation to “suddenness” by recognising the notion of cumulative provocation17 and by permitting a time interval between the final provoking event18 and the killing.19 To illustrate how crucial is the consideration of effluxion of time in crimes involving domestic violence, let us look at the data generated through a study in New South Wales in 198620. The study revealed that 42.5% of homicides were perpetrated against family members and nearly one quarter of homicides were perpetrated by the spouse of the victim. Of those offenders who killed their spouses, nearly three quarters were men. Women are more at risk of death at the hands of their spouse, de-facto or former partner than from any other person, indeed 47% of female homicide victims were killed by their spouse. What is important is that there was a recorded history of marital violence in 48%145 of these cases, cases in which the State proved unable to protect women from abusive relationships of which it was fully aware. It is also particularly sobering to note that in almost half the cases in which women were killed, they were in the process of separation from their partner or had already left the relationship.21 According to Justice for Women, Wilson and Daly (1992) have calculated the sex ratio for spouse killing using data from England and Wales 1977-86. For every 100 men who kill wives 23 women kill husbands. 120 women were killed by male partners in 1992, 40% of all female homicides in England and Wales are women killed by partners, the figure for men is 6%. Wilson and Dalys (1994) Canadian data show that 26% of women killed were divorced or separated at the time.22 Studies of women who kill in the US have found that they have in the main experienced repeated and life threatening violence, with a greater frequency of coerced sex. Almost all the women had also attempted to leave and elicit the support of other agencies in their struggles to end violence. Nothing they have attempted has stopped the violence, and many talk of reaching a point where they believe only one of them can survive.23 Although the classic definition of provocation was given in 1949 in the case of Duffy24. Having been subjected to violence throughout her marriage, she was physically assaulted when she decided to leave her husband. Not being strong enough to fight back, she waited until her husband was asleep before stabbing him. When the judge was summing up for the jury he stated that: “Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”25 When the defence of provocation was put on the statute book by the Homicide Act 1957, the Act only specifies a loss of self-control. In order to distinguish between revenge killings and loss of self-control killings, judges tend to apply the Duffy criterion of suddenness before putting the issue of provocation to the jury. The defence of provocation ignores the history of violence experienced by women by focusing only on the events immediately prior to the killing. The provision of Section 3 Homicide Act 1957 therefore successfully obliterated the aspect of “cumulative provocation” under our present criminal law. 3.2 Diminished Responsibility In cases decided by the House of Lords, diminished capacity of the defendant was not considered in the defence of a reasonable man. The well-known case of Mancini v Director of Public Prosecutions Viscount Simon LC said that, “ The test to be applied is that of the effect of the provocation upon a reasonable man, as was laid down by the Court of Criminal Appeal in R. v. Lesbini n4, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. 26 Although decisions of the court always mentions the circumstances which involves the reasonable man test, there seem to be no clear-cut rules as to how and when provocation is sufficient to incite a reasonable man to violence. The Positions of the judges are still highly debatable. Subjective as they, are no clear benchmarks have been established as to how much provocation it would really require to induce such a person to violent anger. Although it is made clear that pre-disposition to pugnacious and ill-temperaments are not characteristics of a reasonable man, a good question which will always challenge the theory of the reasonable man is the age of the defendant. Will the defendant of tender years be exempt from the objective test of the reasonable man? In the words of Judge Bridge LJ, in his summation on the case R v Camplin, “Members of the jury, I cannot define that person to you. I think in many ways he is like the elephant: he is very difficult to define, but he is very easily recognised. In fact, you 12 ladies and gentlemen collectively represent the reasonable man; that is why that must be the test. You could not, and nor could I, judge a reasonable boy; it is the reasonable man, and have no doubt about it. Aptly said and very plausible. Who can define the reasonable man? Will we recognise him/her when we see her/him? Will the jury recognise such person? How would a reasonable man react? Will a person of tender years be afforded favours by the law? “In essence the question is whether the age of the defendant, where the defendant is very young, is itself one of the objective circumstances to be imputed to the notional reasonable man whom the jury are to consider, or whether it is one of the personal idiosyncracies of the defendant which, according to the authorities, are to be ignored when considering the likely reaction of a reasonable man.”27 The underlying principle which requires this objective test by reference to the likely reactions of a reasonable man is good and should not be doubted. In the interest of justice, the right given to defendant taking the defence of provocation, for a reduction of the criminal action to be file in court from murder to manslaughter is of course plausible. However, such defence should not abused and taken advantage of by those people who are “exceptional advantage to persons exceptionally sensitive, exceptionally excitable or exceptionally hot tempered in character.” The judge in R v Smith explained the underlying principle which operates in this field of the law. In a passage on which reliance has been placed by counsel for the Crown, he said: “It is not intended to give a licence to those who take too much drink; or a licence to those who are quick-tempered; or a licence to those who are over-sensitive; that would be disastrous and it would not be fair, if you think about it for a moment, because it would give an advantage to the drunkard, to the quick-tempered and to the over-sensitive -- an advantage over people who try to exercise proper self-control, as most of us do.” Following this context, it would be unfair if provocation is not strictly defined, and the definition strictly applied. The spirit and intent of the law did not allow for a free rein to the cruel, or the unruly or those who take too much drink. III.3 Conclusion Following the evolution of the reasonable man doctrine, I would like to take the following positions; 1. In defining the Reasonable Man, strict adherence to the objective test should be defined and adherence thereto should be strictly implemented. 2. The “slow burn” principle of the Duffy case should be taken into consideration especially in cases involving domestic violence. 3. The tender years of the defendant should also be considered in determining the reaction of the reasonable person. 4. The judge should elucidate the jury properly on the considerations in determining the degree of provocation which would illicit a violent reaction from the reasonable man. Therefore, it is most respectfully submitted that in furtherance of justice, with all circumstances considered, the defence of provocation of a reasonable man under Sec. 3 Homicide Act 1957 should be construed openly taking into considerations the grey areas of the law which requires profound thinking and considerations by the Court and the jury. Footnotes 1. R v Welsh (1869) 11 Cox CC 336, 15 Digest (Reissue) 1119, 9407. 2. Bedder v Director of Public Prosecutions n1 [1954] 2 All ER 801, [1954] 1 WLR 1119 3. R v MORGAN JAMES SMITH (2000) 3 WRL 654 4. R v MORGAN JAMES SMITH (2000) 3 WRL 654 5. R v MORGAN JAMES SMITH (2000) 3 WRL 654 6. [Reference was made to R v Newell (1980) 71 CrAppR 331; R v McCarthy [1992] 2 NZLR 550; R v Raven [1982] CrimLR 51; R v Morhall [1996] AC 90; R v Campbell (Colin) [1997] 1 CrAppR 199 and R v Parker (unreported) 25 February 1997.] 7. G Coss “‘God is a righteous judge, strong and patient: and God is provoked every day’: A Brief History of the Doctrine of Provocation in England” (1991) 13 Sydney Law Review 570 at 571. 8. B Brown “The Demise of Chance Medley and the Recognition of Provocation as a Defence to Murder in English Law” (1963) 7 American Journal of Legal History 310 at 312. 9. B Brown “The Demise of Chance Medley and the Recognition of Provocation as a Defence to Murder in English Law” (1963) 7 American Journal of Legal History at 311 10. A Ashworth “The Doctrine of Provocation” (1976) 35 Cambridge Law Journal 292. 11. Third Part of the Institutes of the Laws of England at 51 12. Brown “The Demise of Chance Medley and the Recognition of Provocation as a Defence to Murder in English Law” (1963) 7 American Journal of Legal History at 313. 13. R v Duffy n2 [1949] 1 All ER 932 14. R v Ibrams and Gregory [1981] 74 Cr App R 154. and R v Ahluwaliah [1992] 4 All ER 889 15. R v Doughty [1986] Crim LR 625 16. Lavallee [1990] 1 SCR 852 at 871 17. See, for example, Hill (1980) 3 A Crim R 397 (NSW CCA); R (1981) 4 A Crim R 127 (SA SC). 18. See, for example, Parker (1964) 111 CLR 665. 19. S Yeo “Provocation Down Under” (1991) 141 New Law Journal 1200 at 1200 20. A Wallace Homicide the Social Reality (New South Wales Bureau of Crime Statistics and Research, 1986). See also the Western Australian, New South Wales and Victorian studies discussed in Tarrant which made essentially the same findings, see also the recent Victorian Law Reform Commission Homicide Prosecutions Study (Report 40, Appendix 6, 1991) 21. C Devery Domestic Violence in NSW: A Regional Analysis (New South Wales Bureau of Crime Statistics and Research, 1992) at 9. 22. “Battered Women’s Syndrome: Help or Hindrance?” (online) available http://www.jfw.org.uk/BWS.HTM - last accessed January 8, 2005 23. (Browne, 1987; Jones 1 991) 24. R v Duffy n2 [1949] 1 All ER 932 25. R v Duffy n2 [1949] 1 All ER 932 26. Mancini v Director of Public Prosecutions n3 [1941] 3 All ER 272 at 277, [1942] AC 1 at 9 27. R v Doughty [1986] Crim LR 625 Bibliography 1. Homicide Act 1957 2. Smith and Hogan: Criminal Law: Cases and materials – Sir J.C. Smith, Brian Hogan 3. Smith and Hogan: Criminal Law Sir J.C. Smith, Brian Hogan 4. "Rape and the Reasonable Man", (with Karen Haely), Law and Philosophy, 18(1999)113-139. 5. Burke, Alafair S., "Book Review: Equality, Objectivity, and Neutrality - Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom (by Cynthia Lee)" . Michigan Law Review, Vol. 103, 200 6. THE PHILOSOPHICAL QUARTERLY. 13 No. 51 APRIL 1963 7. K O’Donovan, Defences for Battered Women Who Kill, (1991), 18 J.L and Soc. 219. 8. J Stubbs and J Tolmie, Battered Woman Syndrome In Australia, (1994) in Women, Male Violence, The Law, 192. 9. E Sheehy, Battered Women Syndrome: Developments in Canadian Law, in Women, Male Violence, The Law, 174. 10. K Toolis, A Queer Verdict, Guardian 25.11.1995 11. Doran, S (1991) "Alternative Defences: the invisible burden on the trial judge" [1991] Criminal Law Review 878. 12. Williams, G (1977) The Evidential Burden: Some Common Misapprehensions (1977) 127 New Law Journal 156. 13. J Dressler “Partial Justification or Partial Excuse?” (1988) 51 Modern Law Review 467; 14. J Dressler “Rethinking Heat of Passion: A Defense in Search of a Rationale” (1982) 73 Journal of Criminal Law and Criminology 421; Read More