Common Law Jurisdictions Cases and Materials

Question: Discuss about the case study Common Law Jurisdictions for Cases and Materials. Answer: Introduction The doctrine of provocation is generally invoked to reduce murder to manslaughter. The acceptance of doctrine of provocation essentially denotes that the offender was himself or herself not at entire fault and the victim had also played a part leading the offender to take such a step. The doctrine has found its application in the case of battered women who were left with no other option but to kill their husbands in cases of extreme torture and subjugation. This paper deals with an analysis of a judgment relating to the case of a battered woman. Summary of the Judgments Case: R v R (1981) 28 SASR 321 The appeal had arisen out of the decision of the trial court which had convicted the accused for killing her husband on 2nd April, 1981 with an axe while he was sleeping. The defence of provocation was raised by the counsel of the accused in the trial court but it was refused by the trial court and the accused was convicted of murder. The main issue in the appeal was that whether the trial court has erred in refusing the defence of provocation or not. The appeal had been heard by a bench of three judges and majority of the judges allowed the appeal. The summary of the judgments of the three judges are as follows: King C.J. made a close analysis of the facts of events that took place which led to the killing of the deceased by the accused. The accused has been subjected to torture for a very long time by the deceased. The deceased was not a person of good character and his habits and practices had been simply intolerable and unbearable. The most shocking event which took place was that the deceased had sexually abused his daughter and this is something which was really unacceptable and unforgivable. The daughters were really scared of the deceased and they eventually left the house so that they could get rid of the torture done by their father. The accused was thus very much tensed and was under tremendous mental agony. At the night when the killing took place, the deceased cuddled up with the accused and promised her that they would live happily and he would never repeat whatever he had done in the past. These words of the deceased actually indicated that he would continue to treat the accused and the daughters in a cruel and exploiting manner, having regard to the infamous acts which he had committed in the past. The judge referred to the decision of Dixon J. in the case of Parker vs. Queen who recognised the effect of cruelty over the years in determining whether the killing took place out of provocation or not. The Judge also emphasized on the fact that the rule of provocation which required that a conduct in order to be provoking must be unlawful has become obsolete. It was no longer needed to show that the conduct that amount to provocation was unlawful; what was needed to be shown was that the conduct had led to a br each of peace and was sufficient enough to lead an ordinary person to lose his self control. The words of the deceased clearly indicated that the deceased would continue with his cruel behaviour towards the accused and their daughters. It had the effect of leading an ordinary person to lose his self control and had a tendency of causing a breach of peace. Under the circumstances, the accused had committed the ferocious act of killing the deceased. Thus there was a provocation which played a role in the killing of the deceased. The judge also emphasized on the fact that the accused in various occasions had shown her intention to kill the deceased in order to ensure that her daughters live safely and not get molested by the deceased any further. The learned judge, therefore, ordered for a fresh trial in which the facts and evidences would be examined in order to determine whether there was provocation or not. The learned judge highlighted the series of events that took place precedent to the killing of the accused. The events clearly showed on various occasions the intention of the accused to kill the deceased. The accused was not happy with the deceased and she had a feeling of hatred towards the deceased. It has been emphasized by the learned judge that the accused wanted to get rid of the cruel behaviour of the deceased and let her daughters live safely. The fact that the deceased had molested his daughters was a threat to the life and liberty of the daughters. The accused, being the mothers of the daughters, considered herself responsible for ensuring safety and security of the daughters. The accused heart was filled with hatred against the deceased and she was looking for an opportunity to kill the deceased. Moreover, the judge pointed out that a provocative act causes an element of suddenness which was missing in the present scenario. The judge relied on the decisions Berry J. in Re g vs Jeffrey which laid down that suddenness is an important element for a provocative act. The learned judge, therefore, was of the opinion that the killing of the deceased took place out of hatred and anger and in pursuance of an evil intention which was formed in the mind of the accused. An intention to kill the deceased existed before the act of cuddling up of the deceased with the accused and before the deceased made a promise to live happily with the accused for the rest of the life. The learned judge referred to the decision given in the case of Bullard vs. the Queen where it was held that provocation may coexist with an intention to kill. The learned judge, therefore, was of the opinion that the act of killing had not been carried out of provocation but it was a clear case of intended killing of the deceased and consequently the judge dismissed the appeal. The learned Judge seemed to take a similar view as had been taken by King CJ. in this case. The learned judge emphasized on the manner in which the killing took place and pointed out that such killing could only take place when an ordinary person loses his self control. The accused and her daughters had been subjected to immense torture by the deceased and conduct of the deceased gradually filled the heart of the accused with full of hatred and revulsion. This was an important element to be considered in understanding the context in which the killing took place. The Judge relied on the decision given in Lee-Chun-Chuen vs. the Queen[5] which stressed on the point that evidence of any material which shows loss of self control is not dispensed with by the law. Therefore, the learned was of the opinion that an element of provocation was somewhere present under which the ferocious act of killing took place. The act of cuddling up of the deceased with the accused and the promise made there after to live happily forever clearly reflected his past cruel and inhuman behavior towards his wife and daughters. The judge also laid emphasis on the fact that one thing which the accused had in her mind was to get rid of the cruelty and torture of her husband. This could have possibly leaded to a formation of intention in the mind of the accused to commit an act of killing of the husband. The judge was of the opinion that all these facts and evidences need to be examined in a fresh trial and therefore concurred with the opinion of the Chief Justice. Liberal perspective Liberalism is based on the ideas of equality and liberty. The doctrine of provocation rests on the test whether an ordinary person under similar circumstances would lose his power of self control or not. This is the objective standard which the doctrine of provocation has to meet in order to act as a valid defence against conviction for murder. However, this standard has been mainly imposed through a male epistemological context and has been biased towards the women. The doctrine of provocation mainly emerged and developed from a male view of human conduct. The doctrine was used to suit male responses when the men went with arms and the premium on honor was high. The doctrine had actually no application in the context of domestic violence. Over the years, women have been subjected to ill treatment and cruelty by their husbands or their in-laws and they have been subjugated and oppressed to a great extent. Women have been a subject of exploitation since long and there have been many i nstances where the women have fought back or retaliated. Being unable to tolerate such level of oppression, in many domestic violence cases, women have resorted to take step towards killing their husbands to get rid of the cruelty caused by their husbands. But unfortunately, the defence of provocation has not been admitted in various cases and as a result the women had to suffer longer sentences and harsh punishment. Need for defence of provocation in battered women cases Under the criminal law jurisprudence, the defence of provocation reflects a compromise. Various competing interests and ideals are balanced through the defence of provocation. There is undoubtedly a difference between an intended act of killing and a killing caused by an act of provocation. The society does not condemn heavily the killing of the abusers by the battered women. A person may be provoked by the words or conduct of another person and out of such provocation may take steps which may result into killing of such persons. These hot blooded killings, however, cannot be equated with an intended act of killing and an offender is ought to be less punished if he commits an act of killing being provoked by the deceased. Thus, the defence of provocation reduces an offence of murder to manslaughter. The law of provocation can also be explained to justify that the victim got what he deserved. Therefore, under the doctrine of provocation, the law in fact does not treat an offender who commits manslaughter in the same level as it treats a murderer. Human rights point of view The liberal strand also recognizes that there are certain human rights which every persons enjoy for being born as a human being. The human rights of the battered woman who are subjected to torture and oppression have been at stake and they have all the right to fight back for living with dignity in the society. They are entitled to the basic human rights and under no circumstances can these rights be compromised with. Some of these rights include right to personal life and liberty, right to marry and found a family, right to work, etc. The international community has taken initiative towards ensuring basic human rights to all individuals. These rights will be meaningful only when the individuals are allowed to exercise these rights to the fullest. The Courts are there to address human rights issues and they have played a significant role in ensuring basic human rights to all citizens but sometimes there arises occasions when people may tend to lose their power of self-control and ma y take some steps which may result into killing of human beings. In such occasions it is important to invoke the doctrine of provocation by virtue of which their punishment may be reduced to a considerable level. Thus the doctrine of provocation is in consonance with the protection of human rights of the battered woman. Utilitarianism view The utilitarianism view advocates the theory of greatest happiness to the greatest number of people. The torturing of married women and causing cruelty to daughters undoubtedly causes problem to the society at large. The society at large tends to live peacefully and happily with each other. People loves to peacefully and also expect others to the live peacefully. A family where married women are subjected to cruelty and physical harassment or sexual abuse will not be liked by the society. If a married woman tends to retaliate and take some steps towards combatting such sexual abuse or cruelty will undoubtedly be motivated by others. In certain circumstances, where a married woman is subjected to too much cruelty of a grave nature, the killing of the abuser may even be preferred by the members of the society. The doctrine of provocation reduces the punishment of the offenders and accordingly brings greatest happiness to the greatest number of people. The society does not condemn heavi ly the killing of a brutal abuser. Thus the utilitarianism theory supports the doctrine of provocation. Conclusion The law of provocation thus is essential to be invoked in appropriate cases to do complete justice to the society at large. It is more essential with respect to battered woman so that they can set examples and in a way deter others form indulging in cruel activities. Brutality and cruelty done by a person to his wife not only endangers the life of the woman but at the same time is an unfortunate sight for others. It produces a negative vibe and is highly harmful to the productivity and development of a society. King C.J. and Jacobs J. have appropriately leaned towards applying the doctrine of provocation in the present case and have taken a liberal approach for balancing various competing interests and ideals in the society. 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