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Create a 6 page essay paper that discusses CRIMINAL LAW : A particularly troublesome issue for the courts [in relation to provocation] has been whether the reasonable person should be endowed with any
Create a 6 page essay paper that discusses CRIMINAL LAW : A particularly troublesome issue for the courts [in relation to provocation] has been whether the reasonable person should be endowed with any c.
rmination of the gravity of the provocation that caused the criminal act, the jury is required to make reference to the personal characteristics and situation of the accused, which includes age, sex, race, ethnicity, personal attributes and relationships, physical features and past history2. In making a determination as to whether or not provocation may be allowed as a defense in a case of homicide, the Court is required to consider a two limb test, that consists of an objective and a subjective element.
Endowing a reasonable person with the characteristics of the accused is the objective aspect of the provocation test. while the subjective test is to determine whether a reasonable person3 would also act in the same way that the accused did when subjected to sudden trauma and threat, thereby eliminating the motive of pre-meditated murder4. During the application of the subjective test, there is no mandate to endow the reasonable person with the attributes of the accused, rather the jury is required to make a general determination of whether an ordinary person would have reacted in the same way.
In applying this two phase test, the jury must first decide whether a reasonable person endowed with all the characteristics of the accused would have been similarly provoked (the objective test)5. The guideline established in the case of R v Howe was that the reasonable person would be a sober individual of reasonable firmness6. For the second limb, individual differences are eliminated from consideration and the jury must determine whether an ordinary person minus the characteristics of the accused, could have lost self control and formed the intent to kill.
Hence a jury is required to construct two different people in arriving at a determination of intent to kill, one with the characteristics of the accused and the other without. This has been a source of considerate difficulty in delivering verdicts, since the definition of relevant provocation being of an extent
