Absomootly (L)awful

If you are the kind of person who relishes the seamy details, consider the following (otherwise just skip to my tale of ineptitude)

Court of Criminal Appeal DPP V Samantha

Samanta has been married to Edgar for Seven years. Over the last three years, Edgar has taken to going out drinking of an evening and coming back late at night the worse for drink. Samantha frequently scolds him when he returns and tells him she will leave him if he does not mend his ways. Edgar has a violent temper and, on some occasions, has hit Samantha forcefully. On other occasions, Edgar has forced Samantha to engage in sexual intercourse with him despite her protests.

Samantha has recently sought help from a Counsellor who advised her to leave Edgar and move into a hostel for battered wives. The next time Edgar came home drunk he staggered into the bedroom and Samantha told him she was leaving him the next day whereupon Edgar punched out at her several times, breaking her teeth, cutting her lip and badly bruising her. Eventually, Edgar went to sleep on the bed with Samantha sobbing in the corner of the room. Several hours later, in the early hours and while Edgar was still asleep in a drunken stupor, Samantha went to the tool shed in the garden and took out a large hammer. She returned to the bedroom and hit Edgar several times about the head, killing him. She then calmly called the police and said, “ You had better come quickly – I have just murdered my husband.”

Samantha was arrested and questioned the next day. She made a statement to the police. She explained that she could not take anymore and that she had told the counsellor that she would kill Edgar if he ever hurt her again. Samantha was charged with murder and, despite her plea of provocation, was found guilty of murder in the Central Criminal Court on a majority verdict. She is appealing against that verdict on the basis that the judge should have left her plea of provocation to the jury. The judge had not allowed the defence to be put to the jury because of the cooling off period of some hours.

Note for Participants:
Samantha is the Appellant
DPP Is the Respondent.

So in this matter, I was arguing as counsel for the DPP (who is the Irish equivalent of the DA for those of you who are either American or whose only legal knowledge comes from American television).

In Ireland you most often refer to the judge as ‘My Lord’ at the beginning of a sentence (that would be in the literary sense); ‘Your Lordship,’ in the middle of a sentence (again literary), and at all times during and after your sentence (in the penal sense) as ‘That head-up-your-own-ass mother f-er.’

Quasi-Mojo was some help in my preparing for my mock-trial (we call it a moot which is basically the noise that the animal who has one owl parent and one bovine parent makes while it is dropping big stinky pats from a great height) he licked my leather shoes till they were nice and shiny. I really appreciate that (though he’s been licking a lot of leather recently and I think he may actually have a ‘problem’). What I didn’t appreciate so much his attempt at being reassuring by using the tactic that had previously worked so well when I was in a stand-up comedy competition, which basically consisted of him dressing up in a dress, putting on a Carrie’s mother (i.e. Mickey Mouse) voice and repeating the line, “They’re all gonna lafatchoo,” over and over again.

My basic argument (again I’d advise skipping this bit) was to be as follows:

As a preliminary matter, by way of definition of terms, and to point out the only area of convergence between me friend and I.

It is conceded that that the defence of provocation can be successful even though a culpable mens rea may be present in the actions of the accused.

This is on the understandable basis that the mens rea element in the act has its origin in the provocation itself.

More significantly, it is not argued that the appellant would have attacked her husband in the manner she did were it not for his criminally culpable behaviour.

Despite this concession to the appellant’s circumstances however,
Counsel for the appellant is incorrect in making a legal defence of provocation because the facts of this case do not suggest that the actions of the appellant amounted to provocation in the legal sense.

The grounds for appeal are contested by relying
• firstly on the current definitions in case law on the defence of provocation, and
• secondly on the threshold of evidence that is required to allow the question to go to the jury.

The defence was clearly defined in

The people at the suit of the Director of prosecutions respondant V Keith Kelly, Appellant, reported in Volume 2 of the Irish Reports 2000, page 1 which I would like to open with your lordship’s permission.


Page 11, the third sentence of the Second last paragraph beginning: “It will not be sufficient…”

In this passage the elements of provocation are laid out after it is emphasised that one’s propensity to be provoked is irrelevant to the defence of provocation.

It says that
• 1. The reaction cannot be tinged by calculation
• 2. It must come suddenly and before there has been time for passions to cool
• 3. That loss of self-control must be total

On the first point
That the reaction cannot be tinged by calculation

The background evidence to the incident suggests:

• Firstly, the appellant did not bring the continuing assaults against her over the preceding 3 years to the attention of the gardai.

• Also, She refused even to take refuge in a hostel as recommended by her counselor

• But most culpably, she told this professional, her preferred solution which was that she murder her husband the next time he hurts her –this is particularly significant since it seemed most certain that he would given that his violence was a regular occurrence.


ON THE SECOND POINT
That It must come suddenly and before there has been time for passions to cool

• Despite the fact that the deceased did assault the appellant,
• There is a temporal disparity of several hours between this assault which the appellant now attempts to rely on as a provocation, and the attack she made on him as he slept later that night.

ON THE THIRD POINT
That loss of self-control must be total

• There is no evidence of a total loss of self control as the defendant had to be the master of her senses to go to the garden shed to retrieve a hammer and then to use it on the deceased while he slept.
• Though this much is convincing enough, Compounding it, is the evidence of her calm when she reported the crime.

The passage reads:

It will not be sufficient for the defence to show merely that the accused lost his temper or merely that he was easily provoked or merely that he was drunk though all of these may be factors in the situation. The loss of self-control must be total and the reaction must come suddenly and before there has been time for passions to cool. The reaction cannot be tinged by calculation and must be genuine in the sense that the accused did not deliberately set up the situation which he now invokes as provocation. To justify the plea of provocation there must be a sudden unforeseen,
onset of passion which, for the moment, totally deprives the accused of his self-control."


It is thus clear that there was a weight of contradictory evidence against a defence of provocation in this matter, as weighed against negligible submissions affirming the defence, if there were any.

It is conceded of course that in assessing whether or not the evidence for provocation is credible, this is a matter for the jury and not for the trial judge.

This is only the case however, if there is prima facie evidence of provocation. This issue arose in the matter of

The people at the suit of the Director of prosecutions V Steven Davis in the court of criminal appeal, reported in Volume 2 of the Irish Law Reports Monthly 2001 at page 65. which I would like to open with your lordship’s permission.

I would like to draw the court’s attention in this judgment to the final paragraph on page 75. Beginning with the second sentence on the second line starting with the words, “We entirely accept…”

In this passage, the criteria for allowing the question of provocation to go to a jury are enunciated and it is stated
• not merely that some of the elements of provocation must be possible from the evidence
• but in fact that all the elements be present.
• Furthermore, it is held that it may not be merely a vague possibility but must in fact be ‘an issue of substance’

The passage reads:

We entirely accept that the burden on the Defendant is not a heavy one but it necessarily involves being able to point to evidence of some sort suggesting the presence of all the elements of provocation. Provocation is not an issue which will automatically go to the jury simply because the defence is invoked. The burden which rests with the accused is to produce or indicate evidence suggesting the presence of the various elements of the defence.

As I have already outlined, the facts in this matter seem to contradict, not merely some of the elements of the defence of provoation in this matter, but in fact all of them, and it was a substantial possibility of the latter that was required of the learned trial judge to allow the issue to go to the jury.

In the event, the issue was not allowed to go to jury on the grounds of there being a ‘cooling off’ period, and this entirely correct in law as this is certainly an element which is necessary for the defence and for the issue to be considered by the jury.

It is also submitted in the alternative however that there were also other grounds on which the question would have rendered the same verdict.

And is submitted as a second alternative that even if the trial judge had allowed the question to go before the jury, they could not have found the definition to be applicable and so no injustice was done to the appellant in this defence not being considered by the jury

But in reality, I didn’t actually get to do any of it, apart from some reference to the minutely important argument quoted in the Davis case.

What happened was that my opponent (who you bizarrely always have to refer to as your ‘friend’), focused his argument entirely on the admissibility of psychiatric evaluations of women suffering from ‘battered woman syndrome.’ So I thought I’d begin my speech with some words on the inadmissibility of psychiatric evidence to the particular defence of provocation as it is a defence which excludes both the concepts of diminished responsibility and criminal insanity, being based entirely on a loss of self-control that is caused spontaneously by some outward act of…well, provocation – d’uh. The judge had some difficulty with the concept (refer to correct formal address in the penal sense above) which caused critical dallying on the point.

So these (albeit sophisticated) imprudent ramblings on my part, took me entirely off the point and as I said, left me with about 30 seconds to mention some shite about Davis.

Then my ffffffffffrrrrrrr… my fffffffrrrrrrr… my… the other guy, quoted a passage from Davis thus ‘schoolin me in ma own crib,’ as they say in legal circles… now. So in my surrebuttal (funny if you look this up in the OED it says ‘another word for SURREBUTTER – which leads me to suggest that what I was doing here was – apologies in advance – a ‘I can’t believe it’s not surrebutter’), I decided that I would also quote a quote a forthright passage from Davis, however when I looked down at the quote I had before me, I saw it was from Kelly, so having not opened the case of kelly in my submission because I didn’t have time, I rifled through my notes and just rehashed the shlop from Davis that I’d already (badly) done.

So I messed up royally, and apparently, since the ’37constitution, the prerogative was abolished (that’s a law-joke by the way, but you know what isn’t funny? Yes, you’re right – law-jokes).

On they upside, they didn’t all laugh at me. They just flinched with vicarious pain.

So it’s nice to know that even the cocky primate messes up sometimes, and Quasi-Mojo was wrong about the ‘lafatchoo’ thing as well (what can I say? An oldy but a goldy).