PROVOCATION AS A DEFENCE TO CRIMINAL LIABILTY

CHAPTER 1

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

It is a grievous offence and a serious crime under the common law for a person to cause the death of another person and no defense will avail such person. However, it soon developed that there is a rebuttable presumption that practically speaking every common law crime (offense) requires adequate proof of guilty soul.

Generally, the presumption of the law is that a man intends the natural consequences of his act.1 The canal principle of criminal law of intention as it is in the legal maxim “actus non fact reum nisi men sit rea” which means an act does not make a person legally guilty unless the mind is legally blame worthy.2

The law says where a person kills another in circumstances which but for provision of the section, it would give rise to murder. There are certain unlawful killing which does not amount to murder section 3173 provides that any unlawful killing which does not amount to murder is manslaughter. Manslaughter may be voluntary or involuntary; involuntary manslaughter covers cases in which there is no intention to kill or cause grievous harm. Voluntary manslaughter on the other hand occurs when a person intentionally kills another but the offence is reduced from murder to manslaughter because of provocation.

Thus the provision of section 318 4of the Criminal Code is to effect that a person is guilty of manslaughter only if he unlawfully kills another in circumstances which would otherwise have constituted, Murder, so far it is done in the heat of passion caused by sudden provocation and before there is time for his passion to cool. However, before the defense of provocation can avail a person, the test to be a applied Is to see what effect the act or series of acts of the decreased would have on a reasonable man, so that an unusually exactable or pugnacious person will not be able to rely on it as a defense to charge unless the provocation was such as to have led an ordinary person to act in the way the accused did.

It must be observed that provocation, where it is a defense, does not negate Mens rea. It is allowed as a defense because, even though the accused has committed the actus reus of an offense with the requisite means rea, the law considers that at the moment of the commission of the physical act resulting in the actus reus, the accused by reason of passion arising from the act of provocation was not master of his mind.

1.1.0: Background of the study

It is an establish fact under the law that any act of killing which is unlawful is a criminal act. Such acts under the specific offence are referred to as „‟unlawful homicide which includes murder, manslaughter, suicide, infanticide.

Also any intention to kill or cause grievous harm by a person to another and which eventually results into death is an unlawful killing which is usually termed

„ murder‟. However, there are certain killings which do not amount to murder

section 317 of the criminal code provide that an unlawful killing which does not amount to murder is manslaughter.

Manslaughter may be voluntary or involuntary; involuntary manslaughter covers cases in which there is no intention to kill or cause grievous harm. Voluntary manslaughter on the other hand occurs when a person intentionally kills another but the offence is reduced from murder to manslaughter because of provocation. Thus the provocation of section 318 of the criminal code is to the effect that a person is guilty of manslaughter only, if he unlawfully kills another in circumstances which would otherwise have constituted murder so far it is done in the heat of passion caused by sudden provocation and before there is time for his passion to cool. However before the defense of provocation can avail a person the test to be applied is to see what effect the act or series of acts of the deceased would have on a reasonable man, so that an unusually excitable or pugnacious person will be able to rely on it as a defense to a charge unless the provocation was such as to have led an ordinary person to act in the way the accused did.

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