Defences Flashcards

Question

Cosgrove v HMA 1990

Answer 1

(PROVOCATION) => (PROVOCATION OF INFIDELITY) Confronted whether sexually abused a child => Man confronted raised eyebrows and smirked => Cosgrove killed the man => No violence used from man therefore provocation not held Heard victim had sexually assaulted young girl, confronted, no remorse, beat him to death Claimed provocation, jury said not enough. "it must be remembered that every case depends on its own circumstances and I suppose it is possible that is some situations a judge might leave the question of provocation to the jury even though the evidence does not fit the classic definition is still the proper direction to give" Lord Cowie [338] PROVOCATION

Answer 2

(PROVOCATION) interesting case- talks about substantial violence- two individuals entered into a business arrangement- went to confront this person- knew of there violent past- Provoking act- the business partner- shut the door- not prevent him- Didn't entitle Thomson to kill this person- not suffiecent violent Self-defence- operated here- because you were in fear- reasonable person was shut the door- barring the regress- might be able to throw a punch and flee- that did not happen- real injury is important

Answer 3

(PROVOCATION INFIDELITY) sexual taunts and insults were allowed to go to the jury The accused was convicted of the murder of a lady with whom he was endeavouring to have sexual relations without great success He alleged that she had taunted him as to his lack of sexual prowess, comparing him unfavourably to his uncle and questioning whether he was the father of his children, and that it was in a rage at these taunts that he killed her by striking her on the head with a brick (appeal refused!) with the appeal court expressing 'grave doubts' re the trial judge's decision to leave the defence before the jury

Answer 4

P appealed against conviction of the murder of his mother on the grounds that the trial judge erred in directing the jury (1) that there was insufficient evidence to support a plea of provocation, and (2) that the only verdicts open were guilty of murder or acquittal. Both P and his mother, with whom he lived, had a drink problem and were regularly arguing. His mother would throw objects at him and he had a conviction for assaulting her. On the day in question both had been drinking and arguing, and after P's mother had complained at the noise he was making with a hammer and thrown something which hit him, P went into her room and killed her with about eight blows with the hammer. In statements P said that he had lost his head and "went over the top....She is a venomous bugger. I ken what I've done". It had been the last straw for him. P accepted that any violence by his mother that evening did not justify the retaliation used, but argued that provocation could be found in the previous course of violent conduct which had worn him down until he was liable to lose control. Further, the judge had been wrong to rely on Miller v HM Advocate 1991 J.C. 48, noted in Gordon, Criminal Law (2nd ed.), para.23-26, in which the violence was used in the course of robbery: the jury should have been directed, as in Thomson (William Campbell) v HM Advocate 1986 S.L.T. 281, [1985] 12 WLUK 75, that a verdict of culpable homicide was open if they were not satisfied that the mental elements of murder were present. Held, appeal refused. (1) For provocation to apply there had to be a degree of immediacy between it and the blows struck. The past arguments had not been of such a pitch that tempers might not have cooled, nor were the arguments earlier that day of that character. There was simply a gross disproportion between those and the blows struck. (2) The reason for P having a hammer was not important in view of the nature of the assault, and once provocation was out of the case, there was no evidence to support a lesser verdict than murder.

Answer 5

PROVOCATION. The man was living with his wife they wanted to separate. She told him that she was sleeping with another guy. He done nothing but during the second occasion of meeting she killed as she told him (she was screwing that guy under his nose). He killed her, Charge with murder, and convicted. Appeal was allowed. confession of infidelity allowed as provocation as more details provided in the second instance, thus post events are not to be considered provocative without a final violent event (or admission of adultery) at the relevant time

Answer 6

(PROVOCATION)Lord Osborne: “As the law currently stands, in relation to provocation taking the form of violence, the criterion of a reasonably proportionate relationship between the conduct amounting to the provocation and the actings of the accused is well established and has been clearly understood over a period of many years. That criterion appears to us to be apt in the context in which it applies. Violence as provocation can readily be assessed and weighed in comparison to violence in retaliation to provocation. We are unaware of any practical difficulties experienced in the application of this particular criterion within the scope of its operation.” The “reasonably proportionate” criterion is a matter for the judge or jury, so it’s hard to say definitively what would / wouldn’t count. It’s similar – but ultimately different – to the “no cruel excess” test that’s applied when considering self-defence. Provocation by verbal abuse The principles of provocation, when it comes to verbal abuse only, are very similar to those discussed above (in relation to provocation by violence). However, there is one important difference: generally, provocation by words alone is not available when the accused is charged with murder. The accused did not argue that he assaulted and killed victim (with spade, reapetedly striking) he said that victim tried to strike him with the spade.

Answer 7

(PROVOCATION) 'cruel excess' will exclude both defences, '... a grosss disproportion between the provocation affered and the retaliation'L appealed against conviction for assault, arguing that the jury had been misdirected by the trial judge that cruel excess barred provocation. He argued that once a man had been provoked to retaliate, his subsequent acting could not bar the plea of provocation however extreme they might be. Held, appeal refused. The sole purpose of a plea of provocation was to reduce the quality of the act from murder to culpable homicide or to mitigate sentence in cases of assault. It was of no significance unless it mitigated everything done to inflict injury. A gross disproportion between the provocation and the retaliation was a bar to the plea

Answer 8

(PROVOCATION)D appealed against his conviction for the murder of a woman with whom he had been in a relationship, on the ground of misdirection. At the trial he had given evidence that the fatal assault, namely an attack with a hammer, followed his discovery that the deceased was having intercourse with another man, and had pleaded provocation. The trial judge directed the jury as to the standard definition of murder, namely that culpable homicide occurred where there was no intention to kill and the circumstances fell short of the required degree of wicked recklessness for murder and that for provocation to succeed the violence used should not be disproportionate to the provocation offered. Held, allowing the appeal and granting the Crown leave to bring a new prosecution, that (1) murder required a wicked intention to kill or wicked recklessness as to whether the victim lived or died, and a person who killed under provocation was to be convicted of culpable homicide rather than murder because, even if he intentionally killed his victim, he did not have the wicked intention required for murder; (2) while, as a matter of policy, Scots law admitted the plea of provocation only where the accused had been assaulted and there had been substantial provocation, it admitted an exception by recognising that violence due to a sudden and overwhelming indignation caused by the discovery of sexual infidelity, was not committed with the wicked state of mind required for murder; (3) that in such a case the sexual activity and the lethal attack were incommensurable, and where provocation was put in issue the jury should be directed to consider whether on the evidence the relationship between the accused and the deceased was such as to give rise to a bond of sexual fidelity, whether the accused had in fact lost his self control as a result of the provocation, and whether the ordinary man or woman would have been liable to react in the same way in the same circumstances, and (4) that there had accordingly been a material misdirection of the jury resulting in a miscarriage of justice.

Answer 9

(PROVICATION, CONCERT)Two man killed another, a lot of evidenece from witnesses, killed with the knife. One of the accused said that victim approach him with the knife and with intention to have with him sexual intercourse. The trail judge directed the jury that there was no place in the case for plea of provication. Appealed. Sufficient evidence of concert, on acting in concert other not necessery., no question of provocation, first appealan -appeal refused, second appeal allowed (establish if there was 'cruel excess' should be confined to cases of self defence

Answer 10

Man checked if his wife slept with another man, hi shot both(his equipment). At his trial on a charge of murder, Lord Patrick directed the jury that they might return a verdict of culpable homicide and not of murder if they were satisfied that, certiorated for the first time that adultery had been committed, he had acted in sudden indignation and in the heat of the moment and not from motives of revenge.