Specific Defences

to Crime
Dr. ETM Siang'andu
 Learning Outcomes
By the end of this session, you should be able to;
1. Explain the provocation with reference to relevant
authorities.
2. Explain DR with reference to relevant authorities.
3. Explain the effect of DR and provocation as defences.
4. Differentiate the defence of insanity with that of
diminished responsibility.
 Diminished Responsibility (I)
• It is not a general defence but specific to a particular crime -
Murder
• Defence of Diminished Responsibility is introduced under sec
12A of PC
• What does section 12A say?
• However, a successful defence of diminished responsibility does
not lead to an acquittal.
• It reduces murder to manslaughter.
 Diminished Responsibility (II)
• Defence of diminished responsibility is intended to provide a partial excuse for
offenders with mental disorders who could not rely on sec 12 of the PC.
• In order for defence to be accepted by the Crt, three elements must be proved
(under S12A)
1. X must be suffering from an abnormality of mind.
2. This must be due to one of the causes enclosed under sec 12A(l) PC - Thus (i)
condition of arrested development of mind or (ii) a condition of retarded
development of mind or (iii) any inherent, or induced by disease or (v) induced by
Injury.
3. Any one of these causes or conditions has substantially impaired the D mental
responsibility.
What does 'Abnormality of Mind'
mean?
• abnormality of mind - not clear what constitutes
abnormality of mind - different attempts to define the
meaning of the phase for instance in R v. Byrne (1960)3
All ER 1 could be considered as a definitive statement of
what constitutes abnormality of mind -
 'Abnormality of Mind'
• In order to establish Abnormality of Mind medical evidence is required
( R v. Byrne [1960] 3 ALL ER 1.
• Abnormality of mind Lord Packer, in R v Byrne (1960) ...... 'Abnormality
of mind ... means a state of mind so different from the ordinary Human
beings that the reasonable man would term it abnormal.
• Abnormality of mind could be caused by depression, jealousy, Post natal
Stress, premenstrual stress, post-traumatic effects of rape or assault,
• Or any other condition that has the capacity of reducing the P\ person's
will power to control actions.
 'Substantial impairment of
responsibility
• substantially impairment of responsibility suggests at least two requirements must
be met
• 1. The abnormality of the mind had substantial effect on the accused capacity of
judgement & understanding or control ( 12A)
• Such a condition reduces in a substantial way, the accused responsibility with the
result that the accused's criminal liability is reduced
• What constitutes 'Substantial impairment' is a matter of fact which must be proved
in Court.
• As it was established in the case of R v Llyod (1967) 1 ALL ER 107, for the
impairment of an accused's mental capacities, that impairment 'must be more than
trivial or minimal'.
• Whether it is a question of abnormality of mind or the
extent of the substantial impairment, medical evidence is
required in support of the defence pleaded.
• The defence of diminished responsibility is to be raised by
the defence and to be supported by it to the satisfaction of
the court.
• Where this is not raised by the defence, the judge may
alert the defence to avail themselves to the defence.
 Exercise
• 1. Can the defence of diminished responsibility be used in
attempted murder?
• 2. Differentiate the defence of insanity with that of
diminished responsibility.
 Provocation
• Provocation arises where someone does an act or utters
offensive words, or both, against another reasonable
person which causes him or her to lose self-control, in
consequence of which has reasonable loses self-control,
kills the person who did the act or uttered an insult or
both in 'the heat of passion.'
• Under such circumstances the accused person may plead
provocation as a defence to reduce his or her guilt from
murder to manslaughter.
 Provocation
• Provocation arises where someone does an act or utters
offensive words, or both, against another reasonable
person which causes him or her to lose self-control, in
consequence of which has reasonable loses self-control,
kills the person who did the act or uttered an insult or
both in 'the heat of passion.'
• Under such circumstances the accused person may plead
provocation as a defence to reduce his or her guilt from
murder to manslaughter.
 Provocation

• Provocation is an partial defence to murder only S. 205 PC

• D can only plead provocation if he/she killed because
he/she was provoked & that at the time he/she lost self-
control
• Need evidence of provocation
 The law on Provocation
• Read Sections 205, 206 PC - Essence of provocation
• What does s 205 PC provide?
• What does section 206 PC?
• What are the essential ingredients of the defence of
provocation?
 Sections 205, 206 PC - Essence of
provocation
• A kills a person in heat of passion (moment) after having lost his or her
self- control.
• Provocation need to be sudden.
• The A must have no time for passion (no moment) to cool down.
• N.s loss of control is judged against a ordinary person (reasonable) -s.206
• An average person in a similar situation.
• Concept of ordinary person is broad takes into account background,
traditions, beliefs of person.
• Contrary to common law concept of reasonable man.
 The Law on Provocation
• PC, Cap 8 7 sections
• S206 (1)- definition of provocation
• Based on s.206(1) the following conclusion is drawn;
• Provocation comprises of an act (conduct), or an insult or both
• Act or insult could be any wrongful act done by one person to another
• The provocative act or insult must cause the A to lose self-control
• act must induce A to assault that person
• Provocative act or insult done must be capable of inducing an ordinary person
of the community which the A belongs.
 Therefore under S206 PC
• Words alone can constitute a provocation considering that they
can provoke an ordinary person.
• The manner in which one responds to the provocation is judged by
the response of an ordinary person under similar circumstances
• Provocation must cause the A to lose self-control & cause the A to
react as an ordinary person would under such circumstances.
• Note definition of provocation under s 206 PC is the same as that
offered R v. Duffy [1949] 1 ALL ER 932 (CCA)
 Ingredients of Provocation
• Two basic questions must be asked & answered.
1. To what extent did the victim provoke the accused into
losing self-control?
2. Would an ordinary person have reacted as the accused
did?
• In order to respond to question, the court takes S205 PC
CAP 87 into account - common law terms used in the
consideration of provocation.
Liyumbi v. The people (1978) ZR
25 (SC)
• Leading case on the law of provocation, case stated that
there are three inseparable elements to the defence of
provocation
• Read the Liyumbi v. The people (1978) ZR 25 (SC)
decision.
Liyumbi v. The people (1978) ZR
25 (SC)
• Crt held that provocation in law consists of three elements
1. The act of provocation.
2. The loss of self-control both actual & reasonable.
3. The retaliation proportionate to the provocation.
 Read also the fallowing cases;
1. MUTOPAVTHE PEOPLE (1976) ZR212 (SC);
2. Notion of Loss of self-control' read the case ROSALYN
ZULU V THE PEOPLE (1981) ZR 342 (SC)
3. CUMULATIVE PROVOCATION: ESTHER MWIIMBE V
THE PEOPLE SUPREME COURT (1986) ZR 15
 ESTHER MWIIMBE V THE PEOPLE
SUPREME COURT (1986) ZR 15
• The requirement of provocation is that there should be an
act of provocation, the loss of self-control, both actual and
reasonable, and the retaliation proportionate to the
provocation.
• All three elements must be present before the defence is
available.
• The court agreed that there was nothing in the evidence to
suggest that the appellant suffered sudden or any provocation by
reason of any of the factors put forward.
 Summary of the defence of
Provocation
» ss. 205 & 206 PC Cap 87 of the Laws of Zambia
~ Proof of provocation.
» The causing of death ( AP must have caused the death of the
victim, with the necessary MR).
» The provocative act must be sudden ( S. 205 PC).
» The provocative act must induce the accused person to cause
death in the heat of passion before there is time to cool as a
result of loss of self-control ( ss. 205 & 206 PC).
 Summary of the defence of
Provocation II
Time to cool
);;;> act that causes the death must be taken 'before time to cool'
);> Based on evidence, there must be no lapse of time between the time of the provocative
act and the time of the actual causing of death.
}i; > Jt has been argued that this requirement is unfair to women whose reaction to
provocation is very slow.
);;;> It is argued in the case with battered women who endure long periods of assault from
their husbands or partners before reacting and killing the man on the fateful day or
night.
);;;> Defence of provocation can never be available to such women.
);;;> See Mupota v. The people (1976) ZR 212 SC
 Summary of the defence of
Provocation III
>- cumulative provocation
>- ss. 205 & 206 does not address Cumulative provocation.
>- This is the opposite of 'sudden provocation'
>- cumulative provocation was considered in Esther Mwiimbe v. the
people (1986) ZR 15 - where the accused person poured boiling
cooking oil on her aggressive husband causing death. During trial,
self-defence and alternatively provocation were put forward as
defence. Both defences were dismissed by trial judge and by the
supreme court.
 Cumulative provocation -Esther
Mwiimbe v. the people (1986) ZR 15
• Ngulube DC] held that:
• On evidence, there was no dispute that the couple's
marriage was an unhappy one. The husband was driven to
extreme violence and frequently assaulted and injured his
wife. The prosecution case that on the night in question,
the appellant deliberately boiled some cooking oil in a big
black cooking pot, which was exhibited in the case and
that she deliberately poured this boiling oil on her
husband as he lay asleep on the bed. She then ran out of
. .
•
 Liyumbi v. the People (1978) ZR
25
Held in the case that, there are three inseparable elements
to the defence of provocation, namely:
(i) The act of provocation;
(ii) The loss of self-control, both actual and reasonable
(iii)And the retaliation proportionate to the provocation.
All three elements must be present before the defence is
available.
 objective test- s. 206 (1) PC
• The ordinary reasonable person (objective test) s. 206 (1)
PC requires that the provocation act or insult must be
such as might cause an ordinary person to lose self
control.
• Standard ordinary person in the community to which the
accused persons belongs.
 Subjective test applied on AP in S205 ( 1) PC

• S205 (1) provided 'to deprive him of power of self-control and to

induce him to assault the person by whom the act or insult is done or
offered.'
• It must be evident based on facts that the AP lost 'self-control' - A
subjective test is applied to ascertain loss of self-control.
• The AP must have killed in 'the heat of passion' and 'before there is
time to cool',
• The killing must have resulted from sudden provocation or cause the
AP to react in 'the heat of passion, where he is the master of himself.
 Readings
• Kulusika, Simon E. Criminal Law in Zambia: Doctrine
Theory and Practice, 2020 - Chapter 14
• S. 12A PC
• Relevant cases