Homicide

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HOMICIDE

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The statutory provisions relating to homicide in New Zealand are contained in Part 8 of the Crimes Act 1961, which deals with crimes against the person.

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Homicide Tutorial
Part 1: Homicide

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AR+MR Culpable Homicide

1. Killing: s158 Crimes Act

2. Unlawful act: s160 Crimes Act (defined)
a. Culpable homicide if
killing under unlawful act in s160

3. Murderous intent: s167
a. Murder if in s167

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Homicide Tutorial
Part 1: Homicide

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Murderous Intent:
s167(b) Murder defined

Culpable homicide is murder in each of the following cases:

(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:

Generally reckless killing: 3 states of mind – s167(b)
1. The accused means to cause a bodily injury to V (“means” = intent)
a. Oblique intention is included.
b. Ask yourself: why is it NOT the perfect crime? Broadly, not perfect b/c with intent b/c vagueness as to his intention (didn’t know what was in mind)

2. The accused must know that this injury is likely to cause death.
a. R v Dixon
T/J directed jury that they could infer the subjective knowledge could cause death. CA held at the time of the conduct that contributed to the death, the accused must have appreciated or had a conscious appreciation of the likelihood of causing death. Not enough he ought to be aware or had necessary general knowledge if he stopped to think about it.

b. R v Piri
Likely risk – real or substantial risk or something that might well happen.
Requires a subjective knowledge the particular injury is likely to cause death (not an injury is to cause death). If you are vague about meaning to hurt someone not sure if it will cause death

3. Being reckless as to whether death occurs or not.
a. The CA in R v Dickson doubted whether this element added anything to the requirement under (2) other than to emphasizes the necessity for conscious appreciation.
i. Conscious taking of risk by causing death
ii. Words “unwise” is vague.

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Homicide Tutorial
Part 2: Provocation

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R v Rongonui
This case important – page 456 Tipping J developed a 4 step approach for juries in special character cases
1. Did the accused have the char?
a. Brain damage
2. Onus on Crown
a. Whether character is defined as character in law
3. If accused does possess char you must construct in minds a hypothetical person with power of self control of ordinary person otherwise having accused char
4. Consider if provocation of sufficient gravity to deprive hypo person of self control
a. Must be able to assess the level of sufficient gravity to deprive self control of a person with accused char to the ordinary person

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Homicide Tutorial
Part 2: Provocation

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Provocation:
s169 – Similar to SD
- Partial defence
• Evidence of provocation is a question of law
• Evidential onus on accused
o Credible narrative (R v Matoka)
• Evidence most favourable to accused (R v Matoka)
• But provocation is not “mere conjecture” (R v Matoka)
• But provocation is not taken away lightly (authority?)
o Because turn to provocation after the murder elements are satisfied

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Homicide

Definition of homicide in s 158 Crimes Act 1961

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Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.

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Elements of homicide

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Three Elements
1. causing the death
2. of a person
3. by another person

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Year and a day:

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s162 CA: If a person dies 1year and 1day then you cannot be responsible for their death.

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Acceleration of death:

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s.164 Acceleration of death
Every one who by any act or omission causes the death of another person kills that person, although the effect of the bodily injury caused to that person was merely to hasten his death while labouring under some disorder or disease arising from some other cause.

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Airedale NHS Trust v Bland

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Lord Keith of Kinkel (obiter)
… a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance.

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Auckland Area Health Board v AG

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Permanent vegetative state and the hospital could withdraw life support. The withdrawal of the life support wasn’t the legal cause of death b/c lawful excuse to withhold the treatment. It doesn’t cause death where no legal duty and lawful excuse for withholding and withdrawing it. Affirmed in NZ that there is a lawful excuse where doctor follows good medical practice, large body of opinion of medical opinion and follow the correct procedures in withdrawing treatment. There were 8 specialists, the family, and the hospital ethical committee who all agreed it was a lost cause and the patient of living death.

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R v Tarei

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There was an assault and patient suffered a brain injury and turned off life support within 1 year and 1 day. The court held the removal of life support doesn’t cause the death but operates to prevent the artificial prolonging of the persons life and it wasn't an intervening cause (novus actus interviens) to negate the original injury so not novus actus.

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Causing preventable death

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S165. Causing death that might have been prevented
Every one who by any act or omission causes the death of another person, kills that person, although death from that cause might have been prevented by resorting to proper means.

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R v Blaue

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Jehovah witness refused blood transfusion which would have saved her life. It was the actions of the V (novus actus) because the injury could have been treated. Could say the D takes the V as they find them including their religious beliefs. Can’t rely on the court to assess the reasonableness of the V’s beliefs (because so unreasonable breaks the chain). Everyone has a right to refuse medical treatment (s11 NZBORA) and the exercise of it does not relieve another of responsibility.

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Death resulting from treatment

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S166 Causing injury the treatment of which causes death
Every one who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith.

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Orchard:

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1. D’s action remains a significant contributing cause, not matter how bad treatment.
2. D’s action no longer significant contributing cause, except to say treatment would have been given, law more uncertain.

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R v Jordan

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J stabbed V who was admitted to a hospital. Wound almost healed the person was given a large dose of the medicine which severely allergic to which killed them and broke the chain of causation since the original wound wasn’t the cause the death. J’s actions were relevant because it put them in the hospital to begin with.

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R v Cheshire

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…it was so independent of his acts, and itself so potent in causing death, that (the jury) regard the contribution made by his acts as insignificant.

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R v Kirikiri

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Husband shot wife in the hip and then beat her in the head with a rifle causing extreme and severe facial injuries. She was stabilized but had to perform tracheotomym and the tube fell out and she died.

Counsel for the accused filed a motion under s 347(1) of the Crimes Act 1961 for orders that no indictment be presented and that the accused be discharged.
Held:

On the depositions there was evidence on which a jury could decide that the original shot in the hip and the battering about the face and head were of a dangerous nature and an operating cause of death (see p 650 line 6). Motion dismissed.

Court cited Smith

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R v Smith

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Lord Parker CJ

Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.

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Inducing victims to kill themselves

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Can’t kill someone via the influence of the mind alone:

S 160(2)(d) of the definition of CH includes as CH killing
by causing that person by threats or fear of violence, or by deception, to do an act which causes his death.

Although most of the cases have arisen when a person is killed in attempting to escape to safety,

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R v Tomars

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On a manslaughter charge under s 160(2)(d) of the Crimes Act 1961 the prosecution must establish that the actions of the accused caused the deceased, from fear of violence, to act in the way he did, that it was the kind of action which could reasonably have been foreseen by reasonable and responsible persons in the shoes of the accused, and that the act contributed in a not insignificant way to his death

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Culpable Homicide

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Homicide performed with the mens rea for murder: which makes CH murder (s160(3)).
• H with MR for murder
• H with MR for murder but provocation (vol. manslaughter)
• H no MR for murder , no provocation (invol. mans).
• H which is infanticide.

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Homicide with the mens rea for murder: Murder

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The classic definition of murder was;

Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party or implied by law, [so as the party wounded, or hurt, etc die of the wound or hurt, etc within a year and a day after the same].

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Intentional Killing – s167(a)

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Section 167(a) provides:

167. Murder defined – Culpable homicide is murder in each of the following cases:

(a) If the offender means to cause the death of the person killed:

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R v Aramakutu

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It means an actual intention to kill. The offender “means” it was their object and purpose to kill. Often this won’t be a problem. If the Crown relies on s167(a) usually straightforward (stereotypical murder: sadistic killer).

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Direct and oblique intention

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Intention
1. Intended to commit AR in the ordinary sense of the word: direct intention
2. Recognize the AR was a virtual certain consequence of your actions: oblique intention

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Direct Intent

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Cunnliffe v Goodman
Lord Asquith,
[Intention] connotes a state of affairs which the party ‘intending’ …does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about’.

Objective Purpose

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R v Moloney

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Lord Bridge
[The court is to] avoid any elaboration or paraphrase of what is meant by intent and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent.
Direct Intention doesn’t usually require direction to the jury (generally means if their object and purpose)

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Oblique Intent
Hyam v DPP

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Ackner J.

The prosecution must prove beyond all reasonable doubt, that the accused intended (to kill or) do serious bodily harm to Mrs Booth … If you are satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause (death or) serious bodily harm, then the prosecution will have established the necessary intent. It matters not if her motive was, as she says, to frighten Mrs Booth.

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R v Moloney

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(Loading gun contest)
1. Was the consequence (result- ie death) a natural consequence of the D’s voluntary act? (objective)

2. Did the D foresee that result to be a natural consequence of his or her act? (subjective)

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R v Hancock and Shankland

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(Pickett line - killed taxi driver)
Lord Scarman held “natural consequence” not enough of a direction and substitute the wording with “high likelihood”.

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R v Nedrick

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Held words “virtual certainty” better than “natural consequence” and “high likelihood”
Lord Lane CJ, said that,
Where the charge is murder and in the rare cases where the simple direction is not enough, [such as there being no evidence as to the intention of the accused] the jury should be directed that they are not entitled to ‘find’ [as inserted by the HLs in R v Woollin] the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty … as a result of the defendant’s actions and that the defendant appreciated that such was the case.

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R v Matthews and Alleyne

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… once what is required is an appreciation of a virtual certainty of death, and not some lesser foresight of merely probable consequences, there is very little to choose between a rule of evidence and one of substantive law

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Reckless killing – s167(b)

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Section 167(b) provides:

167. Murder defined – Culpable homicide is murder in each of the following cases:

(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be the likely cause of death, and is reckless whether death occurs or not.

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Section 167(b) requires the D to have three states of mind:

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(i) To ‘mean’ to cause a bodily injury to the V. Meaning to cause injury involves a direct intention to cause injury.

(ii) The D must know this injury is likely to cause death.

(iii) Being reckless as to whether death occurs or not.

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(ii) The D must know this injury is likely to cause death.

R v Dixon

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(Killed night watchman by kicks to head) CA held under s167(b), at the time of conduct contributing to death, D must have “actually appreciated,” or had “a conscious appreciation of.” In assessing the likelihood of death it was not enough the D ought to have been aware of this, or had “necessary general knowledge to have appreciated the risk if he had paused to think about it.”

Hint 37

Dixon from Alias - night watchman

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(ii) The D must know this injury is likely to cause death.
R v Piri

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… the words do not require proof that the accused thought that the result which in fact eventuated was more likely than not. A fine calculation that the odds were against it, although the risk was plainly there, is no defence.

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(iii) Being reckless as to whether death occurs or not.
R v Harney

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Must turned mind to risk (subjective recklessness) – s167(a) deliberate killing and s167(b) was deliberately taking risk of killing.

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(iii) Being reckless as to whether death occurs or not.
R v Ryder

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Man beat 10 year old over 2 day period with multiple injuries and killed the boy and couldn’t identify which injury killed the boy. At the time the blow that killed boy must be concurrence with AR/MR. If can’t identify AR then difficulty proving MR. Two possible blows killed child – brain damage – either when fell backwards and hit head or when child laying facedown on ground and he stomped on his head. Court said don’t need to be unanimous about cause of death if all causes of death accompanied by appropriate MR.

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Transferred mens rea – s167(c)

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167. Murder defined – Culpable homicide is murder in each of the following cases:
(c) If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed;

Example: Intend to shoot someone in class and miss and kill someone else –section can apply

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A-Gs Reference (No 3 of 1994)

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HL held that at cl the fact that the D acted with murderous intent directed at the mother would not make such a killing of the child murder, it being thought that the “fiction” or “doctrine” of transferred malice shouldn’t be taken so far.

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Killing in furtherance of an unlawful object – s167(d)

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167. Murder defined – Culpable homicide is murder in each of the following cases:
(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.

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R v Piri

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The court held
The rationale of (d) is the need to classify as murder culpable killing by conduct whereby the accused deliberately risks life for his own unlawful ends. If the risk of the death of the victim was truly no more than negligible or remote in the offender's eyes, the stigma of murder should be withheld. To be distinguished from that, however, are cases where the risk is so appreciable that to indulge in the conduct is seen by society as the virtual equivalent of intentional killing. Every Judge who tries to formulate a test for the distinction in precise and simple terms, suitable for directing a jury, soon realizes that no single formula is preferable or adequate. Expressions commonly used to indicate the degree of foresight of death required to be proved against the accused are a real risk, a substantial risk, something that might well happen.

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R v McKeown

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D bound and gagged V with the object of indecently assaulting her. V subsequently died of asphyxiatopm as a result of the gag. It was possible that para b did not apply, for in binding and gagging the V, the D might not have meant bodily injury; but it was held that, if the required knowledge accompanies the conduct para b did apply. There was no requirement D precisely foreseaw of the death would occur.

Hint 45

Think Rose McGowen in JAWBREAKER Gagging

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R v Aramakutu

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D lit a fire with the unlawful object of damaging a house and an occupant died as a result, provided the requisite knowledge was proved, this was murder under s167(d) even though the act and the objects were the offence of arson.

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Definition of murder

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First, the D must act with an ulterior purpose. The D must act with the purpose of

facilitating the commission of one of the specified offences, or

while facilitating flight from the commission or attempted commission of one of the specified offences, or

while resisting arrest for any offence.

Second, it is also essential that the D must either

a) mean to cause grievous bodily injury (really serious bodily injury), or

b) administer stupefying or overpowering things, or

c) wilfully stop the breathing of a person.

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Concurrence again
Kaitamaki

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Upon penetration he believed there was consent but halfway through he realized there was no consent. Issue: continuing act or complete on penetration? Court held it was a continuing act and continues. Consent once given is not consent always given.

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Penalty for murder

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Section 102 of the Sentencing Act 2002
Life imprisonment is a presumption and no longer mandatory life imprisonment.

Section 104 Sentencing Act 2002.
Lists aggravating features that can increase minimum period for years but can be increased 17 years

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Killing under provocation – voluntary manslaughter - General matters

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Provocation is not a general defence and only available in murder cases. If successful, the defence reduces the charge from murder to manslaughter, the judge will have the sentencing discretion. The rationale for the defence is making a concession to human infirmity.

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Provocation

s.169

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169 Provocation
(1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.

(2) Anything done or said may be provocation if—

(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and

(b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.

(3) Whether there is any evidence of provocation is a question of law.

(4) Whether, if there is evidence of provocation, the provocation was sufficient as aforesaid, and whether it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide, are questions of fact.

(5) No one shall be held to give provocation to another by lawfully exercising any power conferred by law, or by doing anything which the offender incited him to do in order to provide the offender with an excuse for killing or doing bodily harm to any person.

(6) This section shall apply in any case where the provocation was given by the person killed, and also in any case where the offender, under provocation given by one person, by accident or mistake killed another person.

(7) The fact that by virtue of this section one party to a homicide has not been or is not liable to be convicted of murder shall not affect the question whether the homicide amounted to murder in the case of any other party to it.

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R v Matoka

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Provocation is to be left to the jury if there is ‘a credible narrative of causative provocation’

Wife wanted to leave marriage for M's best friend - told M though letter - M killed best friend.

T/J declined to leave provocation to the jury and doubted if there was sufficient evidence that provocation had been satisfied. Provocation on the D’s account had come from the wife who wasn’t the V. He had never said at any time he had lost self control. CA said there has to be evidence of provocation no conjecture and agreed it shouldn’t have been left to the jury.

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The evidence of provocative conduct: ‘anything done or said’

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Section 169(2) sets out that ‘anything done or said may be provocation’.

(2) Anything done or said may be provocation if —

(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and

(b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.

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R v Taaka

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Cousin tried to rape wife: Before the question of provocation could be left to the jury there must be evidence that the alleged provocation did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide. The question is finely balanced. But the accused did not have to make out a prima facie case of provocation before he was entitled to have such a defence left to the jury. It was enough if a credible narrative of events disclosing material suggesting provocation in law was available from all the evidence. In this case there was just enough.

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Cooling time

R v McGregor

R v Tai

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McGregor:
The omission from the new section of references to "heat of passion", "sudden provocation", and "before there has been time for his passion to cool",...are still relevant matters to consider.

Tai:
It might be that another would have time to regain control.

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The tests for provocation

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Section 169(2)(a) & (b).

The subjective leg

Under s169(2)(b) the provocative conduct must;

‘in fact deprive the offender of the power of self-control’ and in that way bring about the killing.

Front 57

Cocker

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Husband killed wife after she constantly asked him to do so. The issue is he did it calmly and deliberately and couldn’t plead provocation because no loss of self control.

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Duffy

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Devlin J,
Sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her not master of his mind.

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R v Campbell

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Sexually abused when young and killed friend during flashback when friend gave same look abuser did.
CA said this was provocation but not a full defense. C lost self control and was still aware of what doing but could restrain himself. The correct offence was manslaughter.

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Provocation
The objective leg

But the otherwise having the characteristics of the offender

Back 60

Question for the jury
s169(2)(a)

'but otherwise having the characteristics of the offender'

Front 61

But otherwise having the characteristics of the offender

1) R v McGregor

Back 61

First test developed for provocation by North P.

- Said a characteristic would only be relevant if it effectively explained why a particular word or act was provocative.

- Characteristic must not be something that has the effect of reducing a person’s powers of self control in general

- Characteristic must be something definite and of sufficient significance to mark the offender as different from the ordinary person.

- The characteristic must be sufficiently permanent so it has become part of the offender’s personality.

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McGregor Criticisms

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- Subsequent courts found the tests too restrictive and too subjective regarding characteristics.

- This could lead to a lowering of the standard of self control for those who had special characteristics and minimizing of the objective test.

- Could conversely be said to be too harsh in that characteristics were narrowly defined.

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2) R v McCarthy

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- Abandoned the connection requirement between the provocative action or statement and the loss of self control

- Didn’t state the characteristic had to be permanent and allows more transitory characteristics.

- Emphasized the importance of the objective test in s.169.

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3) R v Campbell

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- CA said a characteristic that affects a response to provocation can’t be used for s.169
- Only role for characteristics to show why a seemingly innocent comment or action is more provocative for an offender.

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4) R v Rongonui

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- Tipping J (in the majority) confirmed a literal interpretation of s.169 and stated the main issue was the relevance of the accused’s characteristics to his actions

- Tipping J stated that the characteristic was limited to its effect on the gravity of provocation of the accused (power of ordinary person); or the characteristic was generally relevant as it reduces the accused’s power of self-control b/c of the provocation and b/c the provocation is judged on the ordinary person on the characteristic lessens the impact.

- Tipping J focused on the difficulty of clarifying this confusing defense for a jury and suggested a 4 step approach

Front 66

R v Rongonui

Tipping J focused on the difficulty of clarifying this confusing defense for a jury and suggested a 4 step approach

Back 66

1. Has the accused asserted (evidentially) that she has a characteristic (judge decision)?
2. If there is a characteristic asserted, the jury are to ‘imagine’ an ordinary person with the power of self control of an ordinary person with the characteristics of the accused?
3. The questions for jury to ask themselves is – was the provocation of sufficient gravity or seriousness to deprive this ordinary person of the power of self control (but w/the characteristic of the accused)?
4. Was the provocation sufficient to deprive a person of ordinary power of self control (but with the characteristic)

Front 67

Elias CJ dissent in Rongonui

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Stated the interpretation took away from the purpose of s.169 and said it was too artificial and therefore too complex for a jury (let alone lawyers and judge). She thought the McGregor approach with the focus on the characteristic not the gravity was appropriate.

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Rongonui was revisited in R v Makore

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Counsel argued that the law of provocation would be best served in NZ if we followed UK decision R v Smith where the particular characteristics of the accused could be taken into account at both stages of the inquiry and need not be connected w/provocation.

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The law now?

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According to McCarthy, Campbell and majority in Rongonui we have the more objective approach which are further supported by the UK case of R v Smith.

Minority and orbiter suggests leaning towards the subjective approach in McGregor with the added legal analysis in Makore.

This is a defense which will be altered by case law and persuasive argument.

Front 70

Exam: cite main authority; show an element of sophistication and NEED to talk about McGregor which counters the Rongonui approach and articulate tensions and show critical analysis.

Back 70

Exam: cite main authority; show an element of sophistication and NEED to talk about McGregor which counters the Rongonui approach and articulate tensions and show critical analysis.

Front 71

R v Smith (Morgan)

Back 71

England went down the McGregor way – so NZ not consistent with England. The change created huge problems in England. England now applies Rongonui.

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Normal and abnormal characteristics:
R v McGregor

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The characteristic must make you different from the ordinary run of mankind it must separate you from the ordinary man of a community. (has to be special, peculiar) for it to be an attributable characteristic

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Temporary Attributes
R v McCarthy

Back 73

Said attributes have to have sufficient degree of permanence which flows from interpretation of word characteristics s 2(a) that some level of permanence.

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R v Morhall

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The simple fact of the defendant being intoxicated – being drunk, or high with drugs or glue – at the relevant time, which may not be taken so into account, because that, like displaying a lack of ordinary self-control, is excluded as a matter of policy.

Front 75

McGregor

Back 75

The words or conduct must have been exclusively or particularly provocative to the individual because, and only because, of the characteristic. In short, there must be some direct connection between the provocative words or conduct and the characteristic sought to be invoked as warranting some departure from the ordinary man test.

Front 76

R v McCarthy

Back 76

In our view it has to be respectfully said, in the light of judicial experience of the operation of s 169, that the added and obiter observations in McGregor go somewhat too far and add needless complexity to the application of the section. A racial characteristic of the accused, his or her age or sex, mental deficiency, or a tendency to excessive emotionalism as a result of brain injury are, for the purposes of s 169(2)(a), examples of characteristics of the offender to be attributed to the hypothetical person.

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R v Taaka

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Attempted rape of T’s wife by husband – shown that T had an obsessively compulsive personality directed to his wife and child. In applying McGregor it wouldn’t be an attributable characteristic. Never be able to say provocation – direct connection between provocation and characteristic – just wanted to have sex with the person.

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Mental abnormality
R v Fryer

Back 78

[a] severely disordered personality marked by a lack of control when frustrated, violent response to physical threat, and emotional immaturity
Could be considered under B

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Age, gender and race
R v Trounson

Back 79

Perhaps the extremes of youth and old age are factors you can consider in self control

Front 80

Allen, ‘Provocation’s Reasonable Man: A Plea for Self-Control’ (2000) 64 JCL 216.

Back 80

-Viscount Simon in Holmes v DPP, 'as society advances ought to call for a high measure of self control in all cases'

- Allen thinks we are moving backwards.

- Criticizes the CA for paying 'insufficient attn to the theoretical underpinnings of the defence'

- advances in theory by Lord Steyn in Luc and Potts J in Smith; issue for battered women who kill yet to be resolved

-CA emasculated objective test potentially endorsing male violence

- defence slippery slope based in anger questions how long until allow provocation based social conditioning or upbringing or obsessional jealously like in Stingel

Front 81

• Gardner & Macklem, ‘Compassion Without Respect? Nine Fallacies in R v Smith’ [2001] Crim LR 623.

Back 81

- It is the wrong thing--to respond by throwing one's hands up in horror and inviting an "evaluative free-for-all" in which anything that induces sympathy by the same token helps to excuse, and in which little more than lip service is paid to the all-important objective (impersonal) standard of the reasonable person in section 3, and hence to the all-important self-respect of criminal defendants.

Front 82

• Nicholson & Sanghvi, ‘Battered Women and Provocation: The Implications of R v Ahluwalia [1993] Crim LR 728.

Back 82

- This article evaluates the implications of the Ahluwalia (lit husband on fire after severe history of violent and sexual abuse) decision for battered women who kill. While constituting a step in the right direction towards reform of provocation, certain aspects of the decision, in particular, the recognition of the so-called "battered woman syndrome," are criticised as problematic.

- The article concludes by pointing to ways in which the decision can be exploited for more progressive legal reform.

- Provocation is based on and perpetuates male notions of aggression. It will always fit uneasily with the situation of battered women, who kill as much out of desperation and fear, as rage.

- Self-defence offers a more appropriate defence and the legal basis is already in place for accommodating the battered woman's experience. Yet, until the law of self-defence shows signs of such an accommodation or until Parliament expressly provides for battered defendants, the Ahluwalia decision will hopefully result in the provocation defence proving more useful to battered women who kill.