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Assignment Provocation

Assignment Provocation

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Published by Adilah Hamzah

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Published by: Adilah Hamzah on Feb 28, 2011
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Question:³The law says that the provocation must come to you. You should not go toprovocation´Explain the above statement and support your answer with decided case.
 
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INTRODUCTIONThe doctrine of provocation in crime falls under the third category of defence known as`partial defence`. Some writers considered it as µcrime of passion¶
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.The history of this defencebegins 200 years ago under the common law and it`s was existence based upon concession tohuman frailty. A successful pleading of the defence of provocation would reduce the convictionof murder to that of culpable homicide not amounting to murder. It is also a formal mitigatingfactor for the offences of assault, criminal force, hurt and grevious hurt. Unlike the position of this defence under English Law, where it is only applicable as a defence for murder, which willreduce it to manslaughter. Since its existence, this doctrine has undergone various changed.The court in England and in India has taken a liberal approach in construing the doctrine. TheMalaysian courts are following this trend gradually. Yet some writters critically comment on thisdevelopment
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.In some common law, jurisdictions such as the United Kingdom, Canada, and several Australian states, the defense of provocation is only available against a charge of murder andonly acts to reduce the conviction to manslaughter. This is known as "voluntary manslaughter"which is considered more serious than "involuntary manslaughter", which comprises bothmanslaughter by "unlawful act" and by criminal negligence. In some states with Criminal Codes,such as the Australian states of Queensland and Western Australia, provocation serves as acomplete defense to the range of assault-based offenses. In the United States, the Model PenalCode substitutes the broader standard of extreme emotional or mental distress for thecomparatively narrower standard of provocation. Provocation, however, is not a defenseavailable to the civil torts of assault or battery
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Criminal law pg. 111 Michael T Molan
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Towards a liberal view on provocation by M. Sornarajah 2 MLJ [1985]
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http://en.wikipedia.org/wiki/Provocation_(legal)
 
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DEFINITIONIn criminal law, provocation is a possible defense by excuse or exculpation alleging asudden or temporary loss of control as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge. Provocation can bea relevant factor in a court's assessment of a defendant's
mens rea
, intention, or state of mind,at the time of an act of which the defendant is accused
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.It is evident that the Penal code does not provide a definition of provocation, but it doesprovide some indication of what the elements of the defence are. Since the Malaysian PenalCode is in parimateria with the Indian Penal code, it is wise to observe what the authors of thecode say when they frame exception 1 to s.300 as follow:
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 µ«. In general, however, we would not visit homicide committed in violent passion, whichhad been suddenly provoked, with the highest penalties of the law. We think that to treat aperson guilty of such homicide, as we should treat a murder, would be a highly inexpedientcourse«..¶The classic definition of provocation is that provided by Delvin J in R v Duffy
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, where he stated:µ provocation is some act or series of acts, done by the dead man to the accused, whichwould cause in any reasonable person, and actually causes in the accused, a sudden andtemporary 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¶However, since 1957 the definition of provocation is a combination of the abovestatements and s. 3 Homicide Act 1957. Similarly the Indian and Malaysian courts also construethe definition with modification. The court in India and Malaysia does not make any distinctionbetween words and acts in the application of the doctrine of provocation. Whereas, under English Law words alone does not entitle for this defence.
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http://en.wikipedia.org/wiki/Provocation_(legal)
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Cases and materials on criminal law GOUR
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[1949] l ALL ER 932n

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