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LA205 - Criminal Law and Procedure 1 - R v. Ahluwalia

 

COURT OF APPEAL

(Criminal Division)

REGINA

-v-

 

AHLUWALIA

Court of Appeal Criminal Division: Lord Taylor CJ- Swindon Thomas and Judge JJ.: July 31, 1992.¹

 

Murder - Homicide Act 1957, s.3 - provocation - "sudden and temporary loss of self-control" - whether proper test - definition of "characteristics"- of reasonable person-whether special characteristics admissible - proper direction

Criminal Appeal Act 1968, s.23-retrial-fresh evidence-not disclosed at original trial - whether proper to order retrial

A was charged with murdering her husband. There was a long history of domestic violence by him. On an occasion at Easter 1989 (about a month before his death) he knocked her unconscious; and on an occasion when he left her in April 1989 she had to write him a grovelling letter to induce him to return. On the night of May 8-9, 1989, he made further threats to beat her and burn her with a hot iron which he was using; and demanded money from her. A who had bought some caustic soda with a view to using it on her husband, also bought a can of petrol then threw some at him in his bed, throwing a lighted stick after the petrol. He received burns from which he died some days later. There was evidence that A was standing in the burning house with a glazed expression, saying "I'm waiting for my husband". Later she said that she had given him a fire bath to wash away his sins. However she said in police interview that she did not intend to kill him, only give him pain. She did not give evidence at trial; her defence was lack of intent to kill and (secondarily) manslaughter due to provocation. She was convicted (10:2) of murder and appealed, submitting that (1) the judge misdirected the jury on provocation in inviting them to consider if there had been sudden and temporary loss of self-control; (2) the judge misdirected the jury concerning the "characteristics of the reasonable person in looking at the provocation test; (3) the murder conviction was unsafe and unsatisfactory because of A's diminished responsibility (not put forward at trial).

 

Held, allowing the appeal and ordering a retrial, (1) the judge followed faithfully the test of provocation laid down in Duffy [1949] 1 All E.R. 932 (Devlin J.) when directing the jury. It had been boldly submitted that the Duffy test, in referring to sudden and temporary loss of self-control, was wrong. However, the test had been approved in a number of later cases (Ibrams & Gregory (1982) 74 Cr.App.R. 154; Whitfield (1976) 63 Cr.App.R. 39) and most recently in Thornton [1992] 1 All E.R. 306 per Beldam L.J. All these cases made it clear that section 3 of the Homicide Act 1957 had not changed the law in this regard. (Camplin (1978) 67 Cr.App.R. 14, H.L.; Smith & Hogan, Criminal Law (6^th ed.), p.337 considered.) It was open to the judge when leaving the question of provocation to the jury to take account of the interval between the provocative conduct and the reaction of the defendant to it. It had been submitted that delay or a "cooling-off period" might cause a defendant to react more strongly, in a "slow-burn" case. Certainly lapse of time would not in law negative provocation but the longer the delay the more likely it was that provocation could be negatived. The court was essentially being asked to change the law on provocation and only Parliament could do that. (2) The judge also directed the jury properly on personal characteristics according to the test in D.P.P. v. Camplin (above) at p.21 per Lord Diplock. Counsel had complained that the judge had not directed the jury concerning the "battered woman syndrome" which was an important characteristic in the present case. Special characteristics were admissible to show provocation (Newell (1980) 71 Cr.App.R. 331; McGregor [1962] N.Z.L.R. 1069, Taaka [1982] 2 N.Z.L.R. 198, Leilua [1985] Recent Law 118 (New Zealand) considered.) In the present case there had however been no medical evidence that A suffered from the battered woman syndrome or post-traumatic stress disorder. The directions referred fairly to the history and left to the jury the question whether the deceased's acts or words might have caused a reasonable person to lose self-control. (3) However, the Court of Appeal had been furnished with a quantity of material, not before the trial judge and jury, suggesting that A suffered from diminished responsibility. Usually such evidence should have been available at the trial; but this was an exceptional case. One report which was available at the trial but for some reason not pursued then referred to A's endogenous depression at the time of the killing; and the new material would be admitted under section 23 of the Criminal Appeal Act 1968. Coupled with A's strange behaviour after lighting the fire, an arguable defence was disclosed which was not raised below and accordingly a retrial was appropriate.

 

[Reported by Tom Rees, Barrister]

Commentary. See commentary on Thornton [1992] Crim.L.R. 54, a case in which similar points were argued. The law is well established and could be changed only by the House of Lords, or by Parliament. There is, however, an important passage in the present judgment dealing with the alleged "slow-burn reaction".

"We accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing a 'sudden and temporary loss of self-control' caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation."

It is clear from Thornton and the present case that judges do not lightly decline to leave the defence to the jury because in both there was evidence of premeditation. Even after acts of preparation have been done there is still the possibility of a sudden explosion. It is respectfully agreed that the judge was right to instruct the jury to take into account the whole history of the marriage; cf. the criticism of Davies (1974) 60 Cr.App.R. 253 at [1992] Crim.L.R. 56.

Relevant characteristics of the defendant. The case leaves open the possibility that post-traumatic stress disorder or "battered woman syndrome" is a relevant characteristic for the purposes of provocation. The court holds that there was no evidence of such a characteristic before the jury but, had the evidence adduced in the Court of Appeal been given at the trial, "different considerations may have applied." This suggests that the rejection at the trial of the defence of provocation might have been regarded as "unsafe or unsatisfactory" if the conviction had not been quashed on another ground.

The remarks of North J. in McGregor [1962] N.Z.L.R. 1069 concerning the relevant characteristics of the defendant have been incorporated into English law by the decision in Newell and other cases; but it should be noted that these remarks seem to have fallen into disfavour in their country of origin. In McCarthy [1992] 2 N.Z.L.R. 550, 557, Sir Robin Cooke P., delivering the judgment of the Court of Appeal, said:

"Among the cases showing that these observations have caused continual difficulty are R. v. Tai [1976] 1 N.Z.L.R. 102; R. v. Taaka [1982] N.Z.L.R. 198; R. v. Nepia [1983] N.Z.L.R. 754; R. v. Lafaele (1987) 2 C.R.N. 677; and R. v. Trounson [1991] 3 N.Z.L.R. 690. In the judgment in Trounson, delivered by Casey J., it was forecast that this Court might have to revisit McGregor. The powerful criticism of McGregor in Adams on Criminal Law (2nd ed.), paragraphs 1264 to 1269 is well known. It is a matter of weighing the arguments there stated against the full discussion in McGregor itself.

Cooke P., referring to the difficulty of answering the question, "whether a person with ordinary powers of self-control would in the circumstances have retained self-control notwithstanding such characteristics," added: ".... we cannot avoid thinking that the difficulty is unjustifiably aggravated by the suggestion that provocation must be 'directed at' a particular characteristic." It may be that the problem has emerged more clearly in New Zealand because there is no defence of diminished responsibility in that jurisdiction, so that provocation is relied on where, in England, a defence of diminished responsibility would succeed.

Diminished responsibility. The court stressed the exceptional nature of the decision to admit fresh evidence of diminished responsibility:

"Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth." [J.C.S.]

 

ENDNOTES:

1. For the appellant: G. Robertson, Q.C. and A. Nicol. For the Crown: R. Harman, Q.C. and M. Fortune.

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