Criminal Law assignment 1 PDF

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Ordinarily, when the elements of mens rea and actus reus are proved against the accused, he or she is pronounced guilty. However, criminal law does not blame the defendant if, he or she has a valid excuse or justification for her actions, perhaps in certain situations that person may be blamed less. These exemptions from liability are termed defenses. Thus, when a person is charged with a crime he looks to his defenses. The purpose of this essay is to determine the defense’s available to the accused (Paul) for his murder charge, and whether or not he can succeed. The essay will, firstly identify each legal issue, providing the law as it applies. It will proceed by applying the law of each of the issues to the set of facts given. After which an overall conclusion will be drawn. Defenses can be defined as justifications for crime. For an act to be a crime, it must be not only deliberate and in violation of criminal law, but also without an excuse or justification. 1 They can also refer to circumstances that can diminish guilt in a criminal case. 2 There are different types of defenses that is, general and specific defenses respectively. General defenses are those available to all crimes, for example, insanity, self defence, involuntary intoxication and automatism. On the other hand specific defenses such as, provocation and diminished responsibility only apply to murder, reducing liability to manslaughter.3 Therefore, in the light of the facts presented, the first legal issue arising is, whether or not, Paul can succeed, relying on the defence of provocation for his murder charge. Provocation can be plainly defined as the act of inciting another to do something. However it is defined on section 206 of the Penal Code 4 as an erroneous action or slur which is when done to a regular person in the company of an individual in his immediate care or who he is ether married to, a parent, family member or sibling, or in the relation of employer and employee is likely to cause him to self-control, and induce him to assault the person who acts or insult is done to. It further implies that an ordinary person is one who is a reasonable man. Conversely, in Halls v Auto Racing5, it was conceded that, a reasonable man denotes a person in the community who applies ordinary care, proficiency and decisions in behavior and who 1 C Elliot and F Quinn Criminal Law (10edn, Pearson, 2014) pp. 344 2 ibid 3 Elliot and Quinn (n 1) 4 Chapter 87 of The Laws of Zambia 5 [1933] 1 QB 205

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functions as a relative standard for defining responsibility. However Zambian courts interpret the concept of a reasonable person in a broad sense, taking into account background, traditions and beliefs of person. The law under Section 205 of the Penal Code,6 provides three elements that must be satisfied for the defense of provocation to suffice. These are that, there must be an act of provocation, which must cause the accused to lose composure reasonable and actual in cooperation, and that the retribution must be equivalent to the aggravation. These elements where established by the Supreme Court in Liyumbi v the people,7 and later adopted in the people v Phiri,8 in which the first accused, was convicted of murder instead of manslaughter because he had the malice aforethought to kill the deceased. The defence of provocation and self defence both failed. The first requirement is that, there must be an act of provocation. Secondly, it must cause the defendant to lose self-control, both actual and reasonable. In the case of Makomela v the people,9 it was held that the appellant could not rely on the defense of provocation because he had plenty of time to cool off. Similarly in the case of Mwiimbe v the people,10 it was held that, an indication of cumulative provocation without abrupt provocation cannot avail to institute the three vital features. Thirdly, retaliation must be proportionate to the provocation, as illustrated in the case of Simutenda v the people,11 the court held that, hacking a man to death with an axe because he has stolen your clothes, and perhaps because he has the impertinence to wear them in your presence, does not bear the necessary reasonable relationship to the provocation. The, essence of provocation is to reduce charge of murder to manslaughter. In Mulenga v the people,12 it was itemized that, where defendant is not driven by a revengeful wish to cause critical impairment but, fairly by legitimate intention to arrest the deceased, extreme force in the course of this attempted arrest is manslaughter, not murder . However a failed defence of provocation affords extenuation for a charge of murder, as illustrated in Munkala v the people,13

6 Chapter 87 of The Laws of Zambia 7 (1878) ZR 25 8 [2012] ZMHC 9 (1974) ZR 54 10 (1986) ZR 15 11 (1975) ZR 294 12 (1966) ZR 118 13 (1966) ZR 12

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the defendant's death sentence was quashed and reduced to twenty years. This means that, the court may give a lesser sentence to the defendant, than the stipulated death sentence. Applying the law to the given facts, it is clear that the deceased used abusive language towards Paul. This satisfies the first requirement that there must be an act of provocation. Additionally, the deceased statement that ‘all bouncers are gangsters’ was equally an erroneous thing to say. However, Paul reflecting on Terry’s insulting language, entails that he did not lose actual control. At the time he ran after the deceased, ten minutes later, he had enough time to cool off. Thus, the second element does not suffice, this is because Paul he had plenty of time to calm down after the provocation was offered. Additionally, punching and kicking the victim may be said to be proportionate to the abusive language. Nonetheless, the mere fact that the second element had not been fulfilled means that Paul cannot succeed in the defence of provocation. As it can only succeed if all three elements are satisfied. Conclusively, Paul’s defence of provocation would fail. The second issue arising is whether or not Paul will succeed with the defence of diminished responsibility. Diminished responsibility is a restricted excuse for murder only. The defence is available when the defendant was suffering from such abnormality of the mind as to substantially impair his mental responsibility in doing or being party to the killing. 14 What constitutes abnormality of the mind is not clear but the statement of Lord Packer, C.J in R v Byrne,15 could be considered as a reasonable definitive statement. He described it as an aberration of the mind, meaning the state of mind is very different from that of an average human being that the rational man would term it abnormal. Lord Parker added that, it is wide enough to cover the mind activities in all its aspects including the ability to exercise will power to control physical acts. The law under Section 12A of the Penal Code,16 adopts the description given in R v Byrne,17 where it was held that, for diminished responsibility to be a successful defence, it must be proved that the accused was suffering from, such abnormality of the mind whether arising from a condition of retarded or arrested development of the mind or, any inherent defect or, induced 14 J Herring and M Cremons Criminal Law (3edn, Palgrave McMillian, 2002) pp. 219 15 (1960) 2 QB 396 16 Chapter 87 of The Laws of Zambia 17 ( 1960) 2 QB 396 R 133

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disease or injury which substantially impairs his mental responsibility, for his acts or omissions in doing or being party to the killing. In order for the defence of diminished responsibility to suffice, the three elements must be must be proved. In other words this applies to a borderline or partially insane condition of the accused. Additionally, if it is successfully pleaded this defence results in the accused’s murder conviction being reduced to manslaughter, which in turn enables the court to exercise wider choice of sentence.18 Furthermore, in the case of Mvula v the people,19 the court stated that, the onus of proving diminished responsibility rests on the defence. The degree of proof required is on a balance of probability, the civil standard and not beyond reasonable doubt which applies in criminal cases. In the case of R v Ahluwalia,20 the accused admitted that she killed her husband. She relied on raised the defence of provocation nonetheless, a murder conviction was secured. It was held on apeal that, the trail judge was correct to direct the jury to provocation, however it was unsuccessful because the elements had not been satisfied. Therefore, the appeal was allowed on the grounds of diminished responsibility. Relating the law to the facts at hand, evidence was adduced in court stipulating that Paul suffered from a recognised medical mental condition known as Intermittent Explosive Disorder (IED), which leaves him liable to react in an aggressive matter when confronted with unpleasant or stressful situations. It has therefore been clearly established that Paul suffered from an abnormality of mind. This is because he was suffering from IED which was induced by the insulting words of the deceased. His mind was so different from that of a normal person at the time he brought about the prohibited consequence. Paul’s condition had substantially impaired his mind. In other words, the abnormality of the mind had extensive consequence on Paul’s capacity of comprehending certain circumstances, thus as a result he punched and kicked the deceased several times, leading to his death. With this said, it is highly likely that Paul will succeed, if he relies on the defense of diminished responsibly because all the elements have been met. Hence reducing liability from the offence of murder to manslaughter.

18 J Herring and M Cremons Criminal Law (3edn, Palgrave McMillian, 2002) pp.218 19 (1976) ZR 80 20 (1993) 96 Cr App R 133

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In conclusion, Paul cannot depend on the defence of provocation. This is because, all three elements have not been satisfied. However, he can successfully rely on the defence of diminished responsibility, as all the requirements have been satisfied. Thus, Paul’s murder charge would be reduced to manslaughter.

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