Development of Defense of Provocation
Question: Critically evaluate the development of common law principles applicable to the defence of provocation in criminal law from the decision in
Mancini v DPP [1942] AC 1 to Mascantonio v R (1995) 183 CLR 58. Assess the degree to which the common law has proved inflexible in responding changing societal needs and expectations. Are there other legal means of achieving substantive justice?
At the time of the case of Mancini the concept of provocation as a defence to murder was already a well established one dating back centuries. It originated from the days when men bore arms and engaged in quarrels of violence that often resulted in a homicide being committed. For provocation to be an ample defence to murder it needed to be something which incited immediate anger, or "passion" and which overcame a person's self control to such an extent so as to overpower or swamp his reason. What this something can be has been the subject of many views through the centuries, and these views have strongly depended upon the type of person whom the law has regarded as deserving extenuated consideration when provoked to kill. In the words of Viscount Simon
"the law has to reconcile respect for the sanctity of human life with recognition of the effect of provocation on human frailty. " In this regard the difficult concept of the "reasonable man" or the "ordinary man" has developed and with it the legal doctrine that provocation must be such as would not only cause the person accused to behave as he did but as would cause an ordinary man to so lose control of himself as to act in the same sort of way. It is therefore interesting to examine how the doctrine of common law in relation to provocation has responded to changing societal needs and values. It also provides a useful case study in which the development of common law doctrine can be observed. It is useful to conduct a case-by-case analysis of the rule of provocation as a defence to murder in order to more effectively observe the legal evolution that has taken place.
In the case of Mancini v DPP [1942] AC 1 the appellant had been convicted for murder after stabbing a man to death in a club. The appellant's counsel contended that the trial judge should have directed that the jury was open to find provocation to reduce the appellant's conviction to manslaughter.
Lord Simonds provided direction upon what kind of provocation would reduce murder to manslaughter. He said that the provocation must temporarily deprive
In the case of Mamo v Surace [2014] NSWCA 58 (13 March 2014) the appellant and passenger of the vehicle Jesse Mamo made an appeal against the respondent and driver of the vehicle, Steven Surace after his Honour Delaney DCJ decided in the preceding case that the respondent did not breach his duty of care after colliding with a cow .
This form of accusing holds zero form of justice. The accusers weren’t even able to explain what happened themselves, so instead of worrying about t...
In America we believe in the saying “you are innocent until proven guilty” but we the people are remarkably swift to point our fingers at someone we believe that committed the crime. This habit is frequently displayed within our criminal justice system when a crime is committed we quickly assume it has something to do with the first person we can link the crime to. We tend to naturally feel sympathy for the victim therefore; if the individual accuses one for a crime the jury has no reason not to believe the victim. Society does not bother to care if the individual did not do the crime because as long as someone was caught and accused of the wrongdoing, then we the people can proceed on with our lives knowing we punished someone for the crime
- Purposelessness - Seeing no reason for living, having no sense of meaning or purpose in life.
While somewhat vengeful, it is logical for the era. Like the previous laws, it stands in a
R v Secretary of State for Transport, ex parte Factortame Ltd and others [1999] All ER (D) 1173.
intensity of his passions, but also of his capacity to channel them and prevent them from
4.13 [6] pp. 149, 151-52 [7] 26 November 1987; Court of Appeal (Civil Division) Transcript No 1200 of 1987 [8] (2000) Ch 162 CA [9] (1993) 69 P & CR 170 [10] [1982] QB 84, 104-105 [11][1980] 1 WLR 1306 [12] [1976] Ch 179, 189, 198 [13] p. 224 [14] [1998] 1 FLR 806 [15] [1975] 3 All ER 768 [16] (2001) 48 EGCS 129 [17] (1996) 2 WLR 1498 [18] (1996) 72 P & CR 196, CA [19] 2nd ed (1993), p 324
The term ‘Actus Reus’ is Latin, and translates to ‘the guilty act’ , it refers to the thing that the offender did that wa...
that act. If the threat of death stays in the hand of a would-be murder, and we
A wise man once said “Man is only great when he acts from passion.” When you hear the word passion, the first thing that might come to your mind is something related to love, and you’re not entirely wrong. According to Merriam- Webster’s dictionary, passion is defined as a strong feeling of enthusiasm or excitement for something or about doing something or a strong feeling (such as anger) that causes you to act in a dangerous way. All in all, it is a strong feeling, be it happiness, sadness, anger or liberality. You can be passionate about many things such as love, sports, food, or intimacy. However, it can also mean having a strong yearning for something.
desires can be engaged without reason. Their thoughts are consumed by their desires for the
When a person is accused of being "guilty", society must assume the person is innocen...
be compelled in any criminal case to be a witness against himself, nor be deprived of life,
to lose his bearings, not merely as a critic of life, but even as a