Homicide: Voluntary manslaughter - Loss of control

Question 1

What are the three key elements to the loss of control defence?

Answer 1

• D must have lost self-control;
• due to the fear and/ or anger qualifying trigger; and
• a normal person might have acted in a similar way to D.

Question 2

Burden of proof?

Answer 2

With the prosecution once the defence is raised; needing to prove that one of the components of the defence is absent for it to fail.

Question 3

What do we mean by the first requirement ‘loss of self-control’?

Answer 3

The loss of control need not be sudden.
A mere loss of temper is not enough; D must have been unable to restrain themselves.

PS! The defence will be lost if defendant was acting out of a ‘considered desire for revenge’,

Question 4

What do we mean by the second requirement: Qualifying trigger?

Answer 4

1- Fear trigger:

Requires the defendant to fear serious violence.

Using defensive force, but that the level of force used was unreasonable.

2- Anger trigger:

• things said and/ or done;
• that constitute circumstances of an extremely grave nature; and
• that caused D to have a justifiable sense of being seriously wronged.

Question 5

What do we mean by the third requirements: Normal person test?

Answer 5

might a normal person have acted similarly?

OBJECTIVE test:
1. The gravity of the qualifying trigger to a person in the defendant’s circumstances; then

2. Whether as a result of that trigger a normal person might have done what the defendant did or something similar.

Question 6

What are the three categories to consider with circumstances and characteristics?

Answer 6

3 categories to consider for circumstances and characteristics:

1- under the assessment of normal person test.

2- which will be excluded (intoxication, bad temper, PTSD etc..)

3- which will be considered in assessing the magnitude of the qualifying trigger, but ignored in assessing how much tolerance and self-restraint the normal man would have

i.e mental disorder affecting the conduct but not bearing on the tolerance for self-restraint.

Question 7

What are the limitation of loss of control?

Answer 7

1. In an act of ‘considered desire for revenge’.
2. As an excuse to use violence.
3. If the thing said/done constituted sexual infidelity.
4. If the defendant is charged with attempted murder.

Question 8

What do we mean by ‘considered desire for revenge’?

Answer 8

Where there is clear evidence of planning.

‘Considered’ implies the defendant has had time to think about the qualifying trigger - D will not have lost self-control.

Question 9

What do we mean by ‘Excuse to use violence’?

Answer 9

Only applies where the defendant’s actions were
done with a view to providing an excuse for violence; it is not enough that the defendant ‘started it’ to invoke.

D must have had the intent from the outset to provoke the reaction that then led to the killing.

Question 10

What do we mean by ‘thing said/done constituted
sexual infidelity’?

Answer 10

• if sexual infidelity is in the background, but is not the true trigger or the sole trigger for
  the loss of control.
• where there has not in fact been any sexual infidelity - someone lied or made it up to taunt D.
• if the sexual infidelity has not taken place yet.

Question 11

What do we mean by the limitation ‘attempted murder’?

Answer 11

Loss of control ‘is not a defence to a charge of attempted murder or any other charge other than murder’.