R v Ahluwalia

CA        Linotype- Hell Finance Ltd v Baker (Staughton LJ)

have some security. Accordingly, I grant a stay of execution in respect of the a monetary claim for

I can see no ground for granting a stay of execution in respect of the claim for delivery up of the equipment. It is not the property of the defendant, and he has no right or title to it. In that respect the application is refused.

Application dismissed. b

Dilys Tausz Barrister.

R v Ahluwalia

COURT OF APPEAL, CRIMINAL DIVISION LORD TAYLOR OF GOSFORTH CJ, SWINTON THOMAS AND JUDGE JJ 20, 21, 31 JULY 1992

Criminal law — Murder — Provocation — Acts constituting provocation — Domestic violence — Wife killing husband following history of domestic violence and assaults — No sudden and temporary loss ofself-control — Whether history ofdomestic violence amounting to provocation.

Criminal law — Murder — Provocation — Self-control of reasonable man — Characteristics e of accused — Whether characteristics relating to mental state or personality of accused can be taken into account in determining whether reasonable person having characteristics ofaccused would have lost self-control.

The appellant was an Asian woman who had entered into an arranged marriage with the husband and had suffered many years of violence and abuse from him f from the outset of the marriage. The husband had on one occasion tried to run her down and on other occasions had threatened to kill her. The husband was also having an affair with another woman and taunted the appellant about it. One evening, after an argument in which the husband threatened to beat her the next morning, the appellant went to the husband’s bedroom where he was asleep, threw in some petrol, lit a stick from a candle and threw it into the room. The g husband subsequently died from burns received in the ensuing fire. The appellant was charged with murder. At her trial the judge directed the jury that the defence of provocation was only available to the appellant if there had been a sudden and temporary loss of self-control on her part as the result of acts which would have caused a reasonable person having her characteristics as a married Asian woman h to lose her self-control. The appellant was convicted of murder and was sentenced to life imprisonment. She appealed, contending that the history of violence and humilation suffered by her from her husband amounted to provocation and that a relevant characteristic not referred to by the judge was that she suffered from ‘battered woman syndrome’. She also sought to admit fresh medical evidence to support a plea of diminished responsibility.

Held — (1) Provocation as a defence to murder had to be founded on ‘a sudden and temporary loss of self-control’ since the defence was concerned with the actions of an individual who was not, at the moment when he or she acted violently, master of his or her own mind. Although the subjective element in the defence of provocation would not as a matter of law be negatived simply because

of a delayed reaction provided that there was at the time of the killing a sudden and temporary loss of self-control caused by the alleged provocation, the longer a the delay and the stronger the evidence of deliberation on the part of the defendant the more likely it would be that the prosecution would be able to negative provocation. It followed that the trial judge had correctly directed the jury that the defence of provocation was only available to the appellant if there had been a sudden and temporary loss of self-control on her part (see p 895 g to p 896 a c to f, post); R v Thornton [1992] 1 All ER 306 followed; R v Duffy [1949] 1 All ER 932 b applied.

  • Characteristics relating to the mental state or personality of an individual, as well as physical characteristics, could be taken into account by the jury, providing they had the necessary degree of permanence, in determining whether a reasonable person having the characteristics of the accused would have lost his or her self-control in the face of the victim’s provocation. On the facts, however, since there had been no medical or other evidence at the appellant’s trial to suggest that she suffered from a post-traumatic stress disorder, a battered woman syndrome or any other specific condition which could amount to a characteristic, there was no basis for the judge to refer to a characteristic consisting of an altered personality or mental state in the appellant and, on the evidence before them, the d jury would not have been justified in finding such a characteristic (see p 898 a b d to g, post); R v McGregor [1962] NZLR 1069 and R v Newell (1980) 71 Cr App R 33 1 applied.
  • However, having regard to the fresh medical evidence that at the time of the killing the appellant’s mental responsibility for her actions was diminished within s 2a of the Homicide Act 1957 and the fact that without any fault on the e part of the appellant there may have been an arguable defence which was not put forward at the trial, the verdict of guilty of murder was unsafe and unsatisfactory. Accordingly, the appeal would be allowed and a retrial ordered (see p 900 d to f, post).

Notes

For provocation as a defence to a charge of murder, see 1 1(1) Halsbury’s Laws (4th edn reissue) paras 438—439, and for cases on the subject, see 15 Digest (Reissue) 1 122—1 128, 9426—9489.

For diminished responsibility as a defence to a murder charge, see 1 1(1) Halsbury’s Laws (4th edn reissue) paras 440—441, and for cases on the subject, see 15 Digest (Reissue) 1 128—1 131, 9490—9506.

For the Homicide Act 1957, s 2, see 12 Halsbury’s Statutes (4th edn) (1989 reissue) 282.

Cases referred to in judgment

DPP v Camplin [1978] 2 All ER 168, [1978] AC 705, [1978] 2 WLR 679, HL.     h Lee Chun-Chuen v R [1963] I All ER 73, [1963] AC 220, [1962] 3 WLR 1461, pc.

Parker v R [1964] 2 All ER 641, [1964] AC 1369, [1964] 3 WLR 70, pc. R v Duffy [1949] I All ER 932, CCA.

a Section 2, so far as material, provides:

‘(1) Where a person kills . another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded j development of mind or any inherent causes induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing . . the killing.

  • On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.
  • A person who but for this section would be liable . . . to be convicted of murder shall be liable instead to be convicted of manslaughter . . . ‘

R v Hall (1928) 21 Cr App R 48, CCA.

a R v Hayward (1833) 6 C & P 157, 172 ER 1 188.

R v Ibrams (1981) 74 Cr App R 154, CA.

R v Leilua [1986] NZ Recent Law 1 18, NZ CA.

R v McGregor [1962] NZLR 1069, NZ CA.

R v Newell (1980) 71 Cr App R 331, CA. R v Taaka [1982] 2 NZLR 198, NZ CA. b R v Thornton [1992] 1 All ER 306, CA.

R v Whitfield (1976) 63 Cr App R 39, CA.

Cases also cited or referred to in skeleton arguments Holmes v DPP [1946] 2 All ER 124, [1946] AC 588, HL.

Moffa v R (1977) 13 ALR 225, Aust HC.

R v Gould [1968] 1 All ER 849, [1968] 2 QB 65, CA.

R v Hill (1980) 3 A Crim R 397, NSW CCA.

R v Lattimore (1975) 62 Cr App R 53, CA.

R v           [1969] I All ER 920, [1969] I WLR 306, CA.

R v McPherson (1957) 41 Cr App R 21 3, CCA.

(rape: marital exemption) C l 991] 2 All ER 257, CA.

R v Ryan [1984—1988] Butterworths Current Law Digest (NZ) para 1 523, NZ HC.

Appeal against conviction

Kiranjit Ahluwalia appealed out of time with the leave of the single judge granted on 12 September 1991 against her conviction in the Crown Court at Lewes on 7 e December 1989 before Leonard J and a jury on a charge of murder, contrary to common law, for which she was sentenced to life imprisonment. The facts are set out in the judgment of the court.

Geoffrey Robertson QC and Andrew Nicol (neither of whom appeared below) (instructed by R R Sanghvi & Co, Wembley) for the appellant.

Robert Harman QC and Malcolm Fortune (instructed by the Crown Prosecution Services, Lewes) for the Crown.

Cur adv vult 31 July 1992. The following judgment of the court was delivered.

LORD TAYLOR OF GOSFORTH CJ. This is a tragic case which has aroused much public attention.

On 9 May 1989 the appellant, after enduring many years of violence and humiliation from her husband, threw petrol in his bedroom and set it alight. Her h husband sustained terrible burns from which, after lingering painfully for six days, he died on 15 May.

The appellant was indicted for murder. Her trial started on 29 November 1989 in the Crown Court at Lewes and on 7 December she was convicted of murder by a majority often to two. The learned judge then imposed upon her the mandatory  sentence of life imprisonment.

She now appeals against that conviction by leave of the single judge granted only on 12 September 1991, well out of time.

The appellant is now 36. She was born in India into a middle class family. She completed an arts degree and then began a law course, but came under pressure from her family to marry. The deceased came from a family of Kenyan Asians who had emigrated in 1971. The appellant went to Canada to stay with her

brother and sister-in-law. A marriage was arranged between her and the deceased. They had not previously met. The marriage took place in Canada. They then a came to England and settled in Crawley. Both had jobs. Two boys were born to them, one in July 1984 and one in January 1986.

The appellant had suffered violence and abuse from the deceased from the outset of the marriage. He was a big man; she is slight. Her complaints of violence were supported by entries in her doctor’s notes. Thus, in October 1981,

there is a record of her being hit three or four times on the head with a telephone and thrown to the ground. In September 1983, a note states she was ‘pushed’ by her husband whilst pregnant and sustained a bruised hand. The next month she had a broken finger due to another argument. She made attempts at suicide in 1983 and again in 1986. The Croydon County Court granted her an injunction to restrain the deceased from hitting her in 1983. In 1986 the deceased abused b

c

the appellant and tried to run her down at a family wedding. She obtained her second injunction from the court after the deceased had held her throat and threatened her with a knife. He threatened to kill her and threw a mug of hot tea over her. Despite the court order, the deceased continued his violence, which intensified after January 1989.

The appellant’s doctor made a statement which was read at the trial. He d confirmed that he found bruising to her face and wrist on 18 April and fresh bruising on the left cheek, temple and arm on 24 April. At Easter 1989 the deceased knocked the appellant unconscious. She suffered a broken tooth, swollen lips and was off work for five days. Her work supervisor gave evidence that she lost weight and showed signs of nervousness and distress. Other evidence to like effect was given by a workmate, by her Canadian sister-in-law who came to stay e and even by the deceased’s brother, who spoke to the deceased about it on 7 May. On the evidence at the trial there was, therefore, no doubt that the appellant had been treated very badly over a long period. In addition, she discovered in March 1989 that the deceased was having an affair with a woman who worked with him at the Post Office. He taunted the appellant with this relationship. Despite all of this, the appellant wished to hold the marriage together, partly because of her sense of duty as a wife and partly for the sake of the children.

The state of humiliation and loss of self-esteem to which the deceased’s behaviour over the ten years of the marriage had reduced her is evidenced by a letter she wrote him after he left her for three days about April 1989. It is a letter on which Mr Robertson QC strongly relies. In the course of begging him to come back to her and to grant her ten minutes to talk it over, she made a number of self-denying promises of the most abject kind :

‘Deepak, if you come back I promise you—I won’t touch black coffee again, I won’t go town every week, I won’t eat green chilli, I ready to leave Chandikah and all my friends, I won’t go near Der Goodie Mohan’s house h again, Even I am not going to attend Bully’s wedding, I eat too much or all the time so I can get fat, I won’t laugh if you don’t like, I won’t dye my hair even, I don’t go to my neighbour’s house, I won’t ask you for any help.’

Events of 8—9 May

The appellant visited her mother-in-law on the afternoon of 8 May. She then ] returned home with her younger son, who was unwell. The deceased spoke to his girlfriend from his work place telling her that the appellant was going to pack and leave that evening. He arrived home about 10.15 pm. What happened thereafter was described by the appellant in police interviews, although she has not been wholly consistent. It seems she put her son to bed and gave the deceased

 

his dinner. He then tried to mend a television set. The appellant tried to talk to a him about their relationship, but he refused indicating that it was over. He demanded money from her to pay a telephone bill and, according to her, threatened to beat her if she did not give him L 200 the next morning. He then began to iron some clothes and threatened to burn the appellant’s face with the hot iron if she did not leave him alone.

The appellant went to bed about midnight. She was unable to sleep and b brooded upon the deceased’s refusal to speak to her and his threat to beat her the next morning. She had bought some caustic soda a few days earlier with a view to using it upon the deceased. She had also bought a can of petrol and put it in the lean-to outside the house. Her mind turned to these substances and some time after 2.30 am she got up, went downstairs, poured about two pints of the C petrol into a bucket (to make it easier to throw), lit a candle on the gas cooker and carried these things upstairs. She also took an oven glove for self-protection and a stick. She went to the deceased’s bedroom, threw in some petrol, lit the stick from the candle and threw it into the room. She then went to dress her son.

The deceased, on fire, ran to immerse himself in the bath and then ran outside screaming, ‘I’ll kill you,’ and shouting for help. He was assisted by neighbours.

  • Other neighbours rushed to the house. They found the door locked and saw the appellant standing at a ground-floor window clutching her son, just staring and looking calm. They shouted to her to get out of the house. She opened a window and said, ‘I am waiting for my husband,’ and closed the window again. She was prevailed upon to hand the child out and later emerged herself. She stood staring at the blazing window with a glazed expression.
  • The deceased suffered severe burns. He responded to treatment for a while but deteriorated and died on 15 May.
    Fire officers came and extinguished the flames. They found a bucket still smelling of petrol on the landing outside the bedroom, also a saucepan in the bathroom basin with caustic soda in the bottom. Later, the effects of caustic soda were found on the bathroom floor.

On 12 May he made a declaration before a magistrate. In fairness to him he was in no condition to give his account of the whole course of the marriage and the factual background given in this judgment is necessarily based on the evidence given at trial. In his declaration he denied having a girlfriend, asserted the appellant had thrown caustic soda over him in the bedroom rather than petrol, and had thrown something else over him in the bath. He admitted telling her he did not wish to spend his life with her. He had gone to bed after telling her to leave.

The appellant was arrested. She wrote to her mother-in-law from prison saying, amongst other things, that the deceased had committed so many sins, ‘so I gave him a fire bath to wash away his sins’. However, in the course of interview she h repeated a number of times that she did not intend to kill the deceased, but only to give him pain.

The appellant’s case at trial

The appellant did not give evidence. No medical evidence was adduced on her J behalf. Her case was that she had no intention either of killing her husband or of doing him really serious harm, only to inflict some pain on him. Provocation was a secondary line of defence. To support it, reliance was placed upon the whole history of ill-treatment throughout the marriage, culminating on the night in the deceased’s refusal to speak to her, his threat to use the hot iron upon her, his threat to beat her the next morning if she did not provide him with money and his clear indication that he wished the marriage to end. The defence therefore sought a verdict of manslaughter, but the jury convicted of murder. a

Three grounds of appeal were raised. The first two relate to the learned judge’s directions to the jury on provocation.

Sudden and temporary loss ofself-control

The classic definition of provocation in law is that given by Devlin J which was approved by this court in R v Duffy [1949] 1 All ER 932. He said: b

‘Provocation is some act, or series of acts, done [or words spoken] . . . which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.’

The bracketed words are added and seven words removed in accordance with the Homicide Act 1957. Otherwise that definition has stood ever since.

In the present case the learned judge followed that direction faithfully. He repeated it almost verbatim when he first directed the jury on provocation. Later he said:

‘Bear in mind it is a sudden and temporary loss of self-control for which d you are looking, not a thought-out plan how to punish him for his wickedness.’

Towards the end of the summing up he reminded the jury to look at the evidence to see whether ‘there might have been a sudden and temporary loss of selfcontrol’. His final direction read:

Mr Robertson boldly argues that the Duffy direction followed by the judge is wrong. Whatever the position may have been prior to the Homicide Act 1957, he submits that a Duffy direction is based on a failure to comprehend the true meaning and impact of s 3 of that Act as explained by the House of Lords in DPP v Camplin [1978] 2 All ER 168, [1978] AC 705.
‘Sudden loss of self-control. That is what you have to consider and consider in the context of the facts as described by the defendant herself.’

Section 3 of the Homicide Act 1957 provides:

‘Where on a charge of murder there is evidence on which the jury can find g that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation is enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect h which, in their opinion, it would have on a reasonable man.’

In a passage in his speech in DPP v Camplin [1978] 2 All ER 168 at 173, [1978] AC 705 at 716, Lord Diplock referred to that section abolishing ‘all previous rules of law as to what can or cannot amount to provocation’. But he did not, it should be noted, redefine provocation itself.

Even if there were no authority to the contrary, we consider Mr Robertson’s argument is misconceived. Section 3 of the Homicide Act 1957 did not provide a general or fresh definition of provocation which remains a common law not a statutory defence. The changes effected by the 1957 Act are conveniently summarised in Smith and Hogan Criminal Law (6th edn, 1988) p 337 :

‘(i) It made it clear that “things said” alone may be sufficient provocation, a if the jury should be of the opinion that they would have provoked a reasonable man . . . (ii) It took away the power of the judge to withdraw the defence from the jury on the ground that there was no evidence on which the jury could find that a reasonable man would have been provoked to do as [the defendant] did (iii) It took away the power of the judge to dictate to the jury what were the characteristics of the reasonable man . . . ‘ b

In DPP v Camplin the House of Lords was concerned with the objective element in provocation, the ‘reasonable man’ limb of the defence. It was to this aspect of the defence that Lord Diplock was giving attention. Although R v Duffy C 1949] 1 All ER 932 was cited, neither Lord Diplock nor any of the other Law Lords suggested it was wrong, nor has any decision since so suggested. On the contrary, C there has been a consistent line of binding authority approving the use of the phrase ‘sudden and temporary loss of self-control’. For example, in R v Ibrams (1981) 74 Cr App R 1 54 at 159—160 Lawton LJ referred favourably to the direction in R v Duffy, noting that it had been approved by this court in R v Whitfield (1976) 63 Cr App R 39 at 42.

In R v Thornton C 1992] 1 All ER 306 a similar argument to that advanced by Mr Robertson was considered and rejected. Beldam LJ giving the judgment of the court said (at 313—314):

g The phrase ‘sudden and temporary loss of self-control’ encapsulates an essential ingredient of the defence of provocation in a clear and readily understandable phrase. It serves to underline that the defence is concerned with the actions of an individual who is not, at the moment when he or she acts violently, master of his or her own mind. Mr Robertson suggested that the phrase might lead the jury to h think provocation could not arise for consideration unless the defendant’s act followed immediately upon the acts or words which constituted the alleged provocation. He submits a direction to this effect would have been inappropriate and inconsistent with a number of authorities (see, for example, R v Hall (1928) 21 Cr App R 48, Lee ChunChuen v R [1963] 1 All ER 73, C 1963] AC 220 and Parker v R (1964] 2 All ER 641, [1964] AC 1369).
‘The words “sudden and temporary loss of self-control” have ever since been regarded as appropriate to convey to a jury the legal concept of provocation first expressed by Tindal CJ in R v Hayward (1833) 6 C & P 157  at 159, 172 ER 1188 at 1189 in mitigation of the rigour of the law for acts committed—”while smarting under a provocation so recent and so strong, that the prisoner might not be considered at the moment the master of his own understanding The changes in the law of provocation made by s 3 of the Homicide Act 1957 and the reasons for them are well known. It has never, so far as we are aware, been suggested that the distinction drawn by Devlin J between a person who has time to think and reflect and regain self-control and a sudden temporary loss of self-control is no longer of significance . . . The epithet “sudden and temporary” is one a jury are well able to understand and to recognise as expressing precisely the distinction drawn by Devlin J.’

j Nevertheless, it is open to the judge, when deciding whether there is any evidence of provocation to be left to the jury and open to the jury when considering such evidence, to take account of the interval between the provocative conduct and the reaction of the defendant to it. Time for reflection may show that after the provocative conduct made its impact on the mind of the defendant, he or she kept or regained self-control. The passage of time following the provocation may also show that the subsequent attack was planned or based on motives, such as revenge or punishment, inconsistent with the loss of self-control a and therefore with the defence of provocation. In some cases, such an interval may wholly undermine the defence of provocation; that, however, depends entirely on the facts of the individual case and is not a principle of law.

Mr Robertson referred to the phrase ‘cooling off period’ which has sometimes been applied to an interval of time between the provocation relied upon and the fatal act. He suggests that although in many cases such an interval may indeed be b a time for cooling and regaining self-control so as to forfeit the protection of the defence, in others the time lapse has an opposite effect. He submits, relying on expert evidence not before the trial judge, that women who have been subjected frequently over a period to violent treatment may react to the final act or words by what he calls a ‘slow-burn’ reaction rather than by an immediate loss of selfcontrol.

We accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing a ‘sudden and temporary loss of self-control’ caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, d the more likely it will be that the prosecution will negative provocation.

We consider that the learned judge’s direction was in accordance with the wellestablished law and cannot be faulted.
In the present case, despite the delay after the last provocative act or words by the deceased, and despite the appellant’s apparent deliberation in seeking and lighting the petrol, the trial judge nevertheless left the issue of provocation to the jury. His references to ‘sudden and temporary loss of self-control’ were correct in law. He did not suggest to the jury that they should or might reject the defence e of provocation because the last provocative act or word of the deceased was not followed immediately by the appellant’s fatal acts.

Mr Robertson’s argument in support of this ground of appeal amounted in reality to an invitation to this court to change the law. We are bound by the previous decisions of this court to which reference has been made, unless we are convinced that they were wholly wrong. Where a particular principle of law has been reaffirmed so many times and applied so generally over such a long period, it must be a matter for Parliament to consider any change. There are important considerations of public policy which would be involved should provocation be redefined so as possibly to blur the distinction between sudden loss of self-control and deliberate retribution.

The defendant’s characteristics

Mr Robertson’s second ground of appeal is based upon another aspect of the h learned judge’s direction on provocation. It concerns the way the learned judge dealt with the appellant’s ‘characteristics’ in seeking to follow the model direction set out by Lord Diplock in DPP v Camplin [1978] 2 All ER 168 at 175, [1978) AC 705 at 718. Lord Diplock said:

‘[The judge] should then explain to [the jury] that the reasonable man referred to in the question is a person having the power of self-control to be J expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him, and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also would react to the provocation as the accused a     did.’

In the present case the judge’s direction to the jury contained this passage :

‘The only characteristics of the defendant about which you know specifically that might be relevant are that she is an Asian woman, married, incidentally to an Asian man, the deceased living in this country. You may b think she is an educated woman, she has a university degree. If you find these characteristics relevant to your considerations, of course you will bear that in mind.’

That direction is criticised on two grounds, first, because the learned judge did not refer specifically to a particular characteristic which will be mentioned below C and, secondly, because he closed the list of characteristics instead of leaving it open to the jury to find others which they might think might affect the gravity of the provocation.

As to the second of these grounds, Mr Robertson conceded that if the judge had left the list open, there was only one characteristic he could suggest which the jury might properly have taken into account.

The use of the word ‘characteristics’ in DPP v Camplin seems, it is argued, to derive from the statutory language used in New Zealand. Section 169 of the New Zealand Crimes Act 1961 expressly referred to ‘a person having the power of selfcontrol of an ordinary person, but otherwise having the characteristics of the offender . .
This ground of appeal therefore turns upon the one characteristic which it is complained the learned judge ignored. Mr Robertson submits that this appellant was suffering from a ‘battered woman syndrome’, such that it had become a characteristic within the meaning of Lord Diplock’s formulation. He says that not only had the appellant suffered violence, abuse and humiliation over some e ten years and thereby undergone a dreadful ordeal. That course of ill-treatment had affected her personality so as to produce a state of ‘learnt helplessness’, a phrase used by experts who have identified this condition. Accordingly, submits Mr Robertson, the learned judge ought to have referred to this characteristic in his direction to the jury. Alternatively, he ought at the very least to have left the list open so that the jury could have latched on to this characteristic even if he had f not.

g In R v Newell (1980) 71 Cr App R 33 1 this court adopted as correct the statement of principle by North J in R v McGregor [1962] NZLR 1069. Part of his judgment reads (at 1081—1082):

‘The offender must be presumed to possess in general the power of selfcontrol of the ordinary man, save insofar as his power of self-control is h weakened because of some particular characteristic possessed by him. It is not every trait or disposition of the offender that can be invoked to modify the concept of the ordinary man. The characteristic must be something definite and of sufficient significance to make the offender a different person from the ordinary run of mankind, and have also a sufficient degree of  permanence to warrant its being regarded as something constituting part of the individual’s character or personality . . . it must be such that it can fairly be said that the offender is thereby marked off or distinguished from the ordinary man of the community. Moreover, it is to be equally emphasised that there must be some real connection between the nature of the provocation and the particular characteristic of the offender by which it is

sought to modify the ordinary man test . . . Special difficulties, however, arise when it becomes necessary to consider what purely mental peculiarities may a be allowed as characteristics.’

English cases concerned with the ‘reasonable man’ element of provocation, and examples given by judges, have tended to focus on physical characteristics. Thus age, sex, colour, race and any physical abnormality have been considered. However, the indorsement of the New Zealand authority in R v Newell shows that b characteristics relating to the mental state or personality of an individual can also be taken into account by the jury, providing they have the necessary degree of permanence.

Examples from New Zealand case law are R v Taaka [1982] 2 NZLR 198 and R v Leilua [1986] NZ Recent Law 118. In R v Taaka the Court of Appeal held that psychiatric evidence was admissible to show the appellant suffered from a C pathological condition making him an ‘obsessively compulsive personality’. In R v Leilua the same court admitted evidence from a psychiatrist suggesting that the appellant suffered from chronic post-traumatic stress disorder, a condition recognised in medical science.

Those decisions serve to underline the nature of the evidence which would normally be anticipated when special characteristics relating to mental state or personality of a defendant are put forward as matters for the jury to consider.

Had the evidence which has now been put before this court been adduced f before the trial judge, different considerations may have applied. As it is, we consider that there was no basis for the judge to refer to a characteristic consisting of an altered personality or mental state in this appellant. Nor do we consider that, on the evidence before them, the jury would have been justified in finding such a characteristic.
In the present case, there was no medical or other evidence before the judge and jury, and none even from the appellant, to suggest that she suffered from a post-traumatic stress disorder, or ‘battered women syndrome’ or any other specific condition which could amount to a ‘characteristic’ as defined in R v McGregor [1962] NZLR 1069. True, there was much evidence that the appellant had suffered grievious ill-treatment; but nothing to suggest that the effect of it was to make her ‘a different person from the ordinary run of [women]’, or to show that she was ‘marked off or distinguished from the ordinary [woman] of the community’.

What the learned judge did do was to make clear to the jury that in considering g acts done and words used, they were to take account of the whole history of the marriage and not confine their attention to what was said or done on the night of the killing. Thus he said to the jury:

‘The material which you have to consider in order to decide whether the defendant may have been provoked . . . is first of all, the background, the h history of the marriage. The history as described by the defendant, and the evidence introduced by the witnesses called for the prosecution and for the defence. That history provides the background which you have to consider . . . ‘

The jury can have been in no doubt that it was necessary for them to consider the history of this marriage, the misconduct and ill-treatment of the appellant by her husband as part of the whole story, culminating in what happened on the night of 8—9 May.

We should refer to a further criticism of the learned judge’s summing up on provocation. He said:

 

‘If you think, if you come to the conclusion the defendant may have been a made to lose her self-control, by words or acts spoken or done, suddenly and temporarily, you go on to consider, as I told you, the second question, and that is, “might the acts or words done or spoken have had the effect of making a reasonable person in the defendant’s situation lose her self-control and go on to act as the defendant did ?” Those last words are very important. You may conclude that a reasonable person might have lost self-control, but you b also need to consider whether they would have gone on to do what the defendant did . . . whether a reasonable person, even though they may lose self-control, would have done that, in those circumstances. If you conclude the acts or words might have had the effect of causing a reasonable person to lose self-control and to act as the defendant did, then . . . you will find her not guilty of murder, but guilty of manslaughter . . .’

Mr Robertson concedes that the question posed at the beginning of that passage beginning with the word ‘might’ puts the burden of proof impeccably. Likewise, he concedes that the question posed at the end of the passage cited, which again uses the word ‘might’, is impeccable. His complaint is that twice in between those two questions, the learned judge used the words ‘whether they would have gone on . ‘ and ‘whether a reasonable person’, even though they may lose self-control, would have done that’.

There, he says, the learned judge got the burden of proof wrong. We have to say that we regard this argument as hopeless. The use of the word ‘would’ in those two places was in a passage considering what issues fell for consideration. Each time the learned judge posed the question which the jury actually had to ask themselves, he posed it in exactly the right terms.

In our judgment, the summing up of the learned judge was fair and correct in law. We consider that Mr Robertson’s criticisms of the learned judge’s direction are unfounded. He has frankly stated that his attempts to broaden the definition of provocation or, alternatively, to criticise what we have held to be fair and f correct summing up, stem fundamentally from the consequences to the appellant of her conviction for murder. However, the existence of a mandatory life sentence for all murders is a matter for Parliament, not for this court and we cannot bend the law in an individual case or class of cases where it may be thought the mandatory life sentence operates harshly.

  • Diminished responsibility

Turning to the third ground of appeal, we consider Mr Robertson is on stronger ground. This is in relation to diminished responsibility, an issue not raised at all at the trial. In view of our conclusion, we propose to say the minimum necessary to explain the course we propose to take.

  • There has been put before this court a significant number of reports of a psychiatric and similar nature, most of them obtained only recently. These express the opinion that at the time of the killing, the appellant’s mental responsibility for her actions was diminished within the meaning of the Homicide Act 1957.

Ordinarily, of course, any available defences should be advanced at trial. j Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence to be raised for the first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth.

Likewise, if there is no evidence to support diminished responsibility at the time of the trial, this court would view wholly retrospective medical evidence obtained long after the trial with considerable scepticism.

We have considered that fresh evidence. We have also taken into account the d evidence given at trial as to the appellant’s strange behaviour after lighting the fire as witnessed by neighbours. We appreciate that the Crown has not had a proper opportunity to consider the fresh evidence and obtain its own advice and evidence on this issue. We make no comment about the cogency of the fresh evidence. Nevertheless, we have been driven to the conclusion that without, it would seem, any fault on the part of the appellant there may well have been an e arguable defence which, for reasons unexplained, was not put forward at the trial. In these circumstances, we consider that the verdict must be regarded as unsafe and unsatisfactory. We emphasise that the circumstances we have described and which have led us to this conclusion are wholly exceptional. We consider the proper course here is for us to order a retrial.
That said, the present case is most unusual. We have been shown a report which was available before the trial from a recognised medical practitioner for the purposes of the Mental Health Act 1983. That doctor expressed the opinion b that the appellant was suffering from endogenous depression at the material time, a condition which, in the opinion of some experts, would be termed ‘a major depressive disorder’. It is unclear how this potentially important material came to be overlooked or was not further pursued at the time of the trial. We have been told, we assume correctly, that the appellant herself was not consulted about this c report or about the possibility of investigating it further. Although there was opinion available to the Crown to challenge diminished responsibility, and although the appellant herself has not been consistent in her accounts to different consultants, we have concluded that it would be expedient in the interests of justice to admit the fresh evidence under s 23(1) of the Criminal Appeal Act 1968.

Appeal allowed. Conviction quashed. Retrial ordered.

N P Metcalfe Esq Barrister.

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