State v Ashwin [2004] FJHC 159; HAC0027d.2003s (7 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0027 OF 2003S

STATE

v.

AKASH ASHWIN

Counsel: Mr. W. Kuruisaqila & Ms K. Bavou for State
Ms B. Malimali for Accused

Hearing: 6th October 2004
Ruling: 7th October 2004

RULING

State counsel submits that the defence of provocation should not be put to the assessors. He makes the application on the ground that evidence of cumulative provocation is insufficient to raise provocation as a defence, without a “trigger” event. In this case, says counsel, the alleged “trigger” of the accused being wrongly accused of stealing his mother’s money was 5 to 6 hours before the stabbing and could not constitute “sudden” provocation.

Section 203 of the Penal Code provides:

“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only.”

Section 204 provides:

“The term “provocation” means, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.”

There is no provision in our Code, comparable to section 3 of the English Homicide Act which provides that where there is evidence on which the jury can find that the accused was provoked to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did, should be left to the jury. However, that section does represent the common law on the issue.

The questions for me in respect of this application are:

1. Is there any evidence of specific provoking conduct? and
2. Is there any evidence that the provocation caused the accused to lose his self-control?
   

In R v. Gilbert 66 Cr. App. R. 237, it was held that if both questions are answered in the affirmative, the issue of provocation should be left to the jury even if in the opinion of the judge, no reasonable jury could conclude that a reasonable person would have been provoked to lose self-control. It is only where there is a speculative possibility of the accused having acted under provocation that the issue should not be left to the jury (R v. Alcott [1997] UKHL 5; (1997) 2 Cr. App. R. 94.

The common law definition of provocation includes the component of “sudden and temporary loss of self-control” (R v. Duffy (1949) 1 ALL ER 932). This definition is part of the Penal Code definition of provocation.

Acts of revenge are not provocation because a person bent on revenge has time to plan and think. This negatives the sudden nature of provocation. However the mere existence of such circumstances does not mean that the judge should withdraw the issue from the assessors as long as there is evidence that the accused was provoked. Whether an act was provoked, or was done in revenge is a matter for the assessors to decide.

Further, acts of previous provocative conduct are admissible to allow the assessors to view the act of killing in its proper context. It was held in R v. Thornton 96 Cr. App. R. 112 that previous acts of provocation may be admissible to establish a sudden loss of self-control on the day of the killing.

In R v. Thornton (No. 2) [1995] EWCA Crim 6; (1996) 2 Cr. App. R. 108, the Court of Appeal said that a jury might more easily find that there was a sudden loss of self-control triggered by a minor incident if the accused had endured prolonged insult, on the basis that the trigger event was the last straw.

In R v. Ahluwalia [1992] EWCA Crim 1; (1992) 4 ALL ER 889, a decision cited to me by counsel for the defence, the appellant was charged with murder. She had suffered years of abuse from her husband. On the morning of the murder she killed her husband by setting fire to him as he slept. The judge directed the jury that the defence of provocation was only available to the defendant if there had been a sudden and temporary loss of self-control. She was convicted of murder. On appeal, it was held by the Court of Appeal that the defence had to be founded on a sudden and temporary loss of self-control. However characteristics relating to the mental state or personality of an individual could be taken into account in determining whether a reasonable person having the accused’s characteristics, would have lost his/her self-control in the face of the provocation.

In this case there is evidence of a 7 year period of hostility of false accusations between accused and deceased. On the day of the stabbing the accused’s mother realised that her husband had hidden money knowing that the accused would be blamed for its loss.

Whether or not the history between accused and deceased together with this last incident are sufficient to cause a reasonable man in the accused’s shoes to suddenly lose self-control, and whether the time lapse between the trigger event and the stabbing suggests revenge rather than provocation, are matters of fact for the assessors.

I find on the evidence led in this trial that there is evidence of specific provoking conduct on the part of the deceased, over the years, and on the 30th of July 2003 and of a sudden and temporary loss of self-control which justifies allowing the defence to go to the assessors.

I rule accordingly.

Nazhat Shameem
JUDGE

At Suva
7th October 2004