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
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
Partial defense from murder to culpable homicide Mitigating factor in some non-fatal offences (s. 334 hurt, s. 335 grievous hurt)
Partial justification
Partial excuse
Pakistan Penal Code (Indian Penal Code origins) grave and sudden provocation
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
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
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Must be sufficiently grave and sudden that a reasonable person would lose self-control (read into the Penal Code)
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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
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
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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
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
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
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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
Marshall UK case: Glue-sniffer nagged about glue-sniffing ct held consider as ordinary glue-sniffer
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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)
Just one factor to be considered when deciding whether provocation grave and sudden (to cause reasonable person to lose control)
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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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Proportionality
is only one factor to be considered when deciding whether provocation grave and sudden; whether exercised self-control expected of ordinary person
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