LWZ114 Lecture Notes - Lecture 5: Criminal Negligence, Doctor Of Letters, Mattress
HOMICIDE, MURDER, PROVOCATION & INVOLUNTARY MANSLAUGHTER
Provocative conduct must be wrongful?
❖ Fricker
➢ *D was obsessed with M, even after M clearly told him she did not want a relationship.
➢ *After argument with D, M went to V’s flat.
➢ *Later that day V placed his hand on M’s leg.
➢ *Unknown to V, D had been watching and listening through a window.
➢ *D smashed the window and killed V.
➢ M’s behaviour was not wrong because she had no ties to D and was free, legally and morally, to do whatever she
does with V → Not provocative conduct.
➢ Also, if we apply Arden, V’s conduct was not provocative conduct because
▪ V was unaware of D’s presence, and
▪ V could not reasonably expect anyone who might be provoked to be present.
❖ Stingel v R: Provocation does not require unlawful or wrongful conduct.
Self-induced provocation
❖ Edwards v R: If the victim’s provocation was a predictable or expected reaction to the accused’s own behaviour, there
is no defence of provocation.
➢ *D attempted to blackmail V.
➢ *Instead of giving money, V attacked D with a knife.
➢ *D wrestled the knife from V and killed him.
➢ V’s reaction was unexpected and unpredictable → provocation is applicable.
❖ R v Voukelatos: Provocative conduct induced by D’s words can still be provocation in law.
Victim was not the direct provocateur
❖ Davies: Generally, provocation must emanate from the victim.
Exceptions:
❖ R v Kenney: If the accused inadvertently kills a third party in the course of him directing violence against the
provocateur, the accused can rely on the defence of provocation in relation to the third party’s death.
❖ Gardner: Where the victim did not directly provoke, the defence of provocation is available if the victim is connected
with the provocation.
➢ *D was taunted by ex-lover about an affair she was having with V.
➢ *D lost control and killed her.
➢ *D then discovered V in another room, and killed him in his sleep.
➢ V was sufficiently connected with the provocation to be an appropriate target of D’s loss of self control.
❖ Peisley: A victim who is not directly involved in the trigger event is not sufficiently connected with the provocation
to be an appropriate target.
Provocation actually caused loss of self-control (subjective element)
❖ Masciantonio v R: The provocation must actually cause the accused to lose self-control (& killed whilst deprived of
it).
❖ Stingel v R: When considering whether the accused actually lost control, the jury must consider all relevant
circumstances that show the accused’s state of mind.
➢ Eg. the way accused killed, time between provocation and attack; accused’s culture, temperament, characteristics.
❖ Parker v R: Loss of control need not be sudden.
❖ Masciantonio v R: Loss of control commonly arises from anger and fear.
Ordinary Person Test (objective element)
Gravity of provocation: How insulting/hurtful is the provocation to an ordinary person in the accused’s position?
❖ Stingel v R: In assessing the gravity (nature and extent) of the provocation, all relevant characteristics of the accused
must be attributed to the ordinary person.
❖ Masciantonio v R: Gravity of the provocation may depend on the accused’s age, sex, race, ethnicity, physical
features, personal attributes, personal features, personal relationships or past history.
❖ Stingel v R: Even mental instability or weakness of the accused may be relevant.
❖ Green v R
➢ *When V, a trusted friend of D, made persistent homosexual advances, D killed him.
➢ *D was sensitive to sexual abuse as a result of his father having sexually abused his sisters.
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Document Summary
*d was obsessed with m, even after m clearly told him she did not want a relationship. *after argument with d, m went to v"s flat. *later that day v placed his hand on m"s leg. *unknown to v, d had been watching and listening through a window. *d smashed the window and killed v. M"s behaviour was not wrong because she had no ties to d and was free, legally and morally, to do whatever she does with v not provocative conduct. Also, if we apply arden, v"s conduct was not provocative conduct because: v was unaware of d"s presence, and, v could not reasonably expect anyone who might be provoked to be present. Stingel v r: provocation does not require unlawful or wrongful conduct. Edwards v r: if the victim"s provocation was a predictable or expected reaction to the accused"s own behaviour, there is no defence of provocation. *instead of giving money, v attacked d with a knife.
