Diminished Responsibility & Provocation

EXAMINATION QUESTIONS

David and Victoria had been married for several years. Victoria has suffered many years of violence and abuse from David as a consequence suffered from extreme depression. One evening on his way out of the house, David insulted Victoria, calling her hideous (ugly, revolting, dreadful) and revealed that he was having an affair with her sister. Feeling extremely depressed, Victoria drank a half bottle of whisky. A few hours later, David returned, and with a sneer, told her that he had a wonderful evening. Victoria picked up a bottle of whisky and intending to cause David serious injury hit him on the head. David died from the injuries sustained.

Discuss Victoria’s liability for homicide of David.


Murder

Murder is committed where a person, intending to kill or intending to cause grievous bodily harm and in the absence of a defence, unlawfully kills another human being (Moloney 1985); (Vickers 1957). It is instructive not that it is clear from the facts of the question that Victoria killed David and did so with intention to cause serious injury. Therefore she will be convicted for murder unless she takes advantage of the defence of either provocation and or diminished responsibility, both of which reduced liability to manslaughter.

The actus reus of murder consist of causing the death of a human being. Based on the fact of the question, David died from the injury sustained when Victoria hit on the head.

The mens rea for murder requires proof of an intention to kill or cause grievous bodily harm (Vickers 1957) and GBH means serious bodily harn (Sounder 1985). Victoria intends to cause serious injury which is adequate intention for murder.

DEFENCE

Provocation

There are two elements to the defence. The first, subjective element, concerns the question of whether the defendant as a result of provocation, suffered a temporary loss of self control (Duffy [1949]). The jury when considering this issue, may take into account anything said or done or a combination of things said and done (s.3 of the Homicide Act of 1957; Acott (1997) The comments made by David immediately before Victoria killed him may be considered by the jury to be the last straw precipitating a loss of self-control and the spontaneously of her response is a good evidence that the loss of self-control was sudden and temporary (Ahluwalia, Thorton).

The second element of the test – the objective test – requires the jury to consider whether the provocation would have caused a reasonable man to do as the defendant did (s.3 of the Homicide Act 1957).

Following Holley and James; Karimi Victoria’s depressive condition may not be taken into account by the Jury, nor may her drunkenness. However, the jury should be directed to consider whether a woman with ordinary powers of self-control having experienced a history of abuse would have reacted as Victoria did.


Diminished Responsibility

Alternatively, Victoria may be able to take advantage of the defence of diminished responsibility, which, like provocation, reduces liability from murder to manslaughter 9s.2(3) of the Homicide Act 1957. The burden is on the defendant to prove, on the balance of probabilities (s.2(2); Dubar (1958), that she was suffering from an ‘abnormality of the mind’ resulting from a condition of arrested development of mind or any inherence causes or induced by diseases or injury, that substantially impaired his responsibility for the killing (s.2(i).

In Byrne (1960) it was held that 'abnormality of mind' means a state of mind so different from that of an ordinary people that the reasonable man would term it abnormal and may include conditions which affect the powers of self-control of the defendant. Victoria's depressive condition may amount to an abnormality of the mind provide the pleas is supported by psychiatric evidence (Dix [1981].

If the jury are of the opinion that both the mental abnormality and the drink played a part in impairing Victoria’s mental responsibility and caused her to kill David she is not precluded from relying on the defence but the effects of the alcohol may not be taken into account. If the jury are satisfied that, despite the drink, her depressive condition amounted to a mental abnormality substantially impairing her responsibility then the defence should be allowed (Dietschmann).

The question whether the abnormality impaired the defendant's mental responsibility is also one for the jury. In Llyod (1967). It was held that the impairment need not be 'total' bit there must be more than 'trivial' degree of impairment.