When Can I Raise the Defence of Provocation in Singapore?

Last updated on March 18, 2022

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When someone is on the receiving end of provocative actions or words, and as a result kills the other party who had provoked him, will this be considered a defence?

This article will discuss:

What is the Defence of Provocation in Singapore?

In simple terms, provocation is an action or statement done/made with the intention to cause a reaction, especially anger or annoyance from the person being provoked.

In the context of law, provocation is a partial defence to murder found in Exception 1 to section 300 of the Penal Code. It can therefore be raised as a defence by someone who has been charged with murder.

Exception 1 to section 300 of the Penal Code provides that culpable homicide will not be considered as murder if the offender had, while deprived of the power of self-control by grave and sudden provocation, caused the death of:

  • The person who gave the provocation; or
  • Any other person by mistake or accident.

This defence recognises common human behaviour where individuals can, in limited situations, be emotionally overwhelmed to the point that they kill another person under conditions of extreme fear, sadness, depression or even jealousy.

What Happens If the Defence of Provocation is Successfully Established?

As mentioned above, provocation is only a partial defence to murder as opposed to a complete one. Hence, a person who successfully pleads this defence after being accused of murder will not be able to entirely avoid punishment. Instead, they will have their murder charge reduced to a charge of culpable homicide not amounting to murder, and be convicted of that reduced charge.

That said, this reduction in charge can literally mean the difference between life and death for the accused. This is because the maximum penalty for culpable homicide not amounting to murder is life imprisonment, which is a less severe sentence than the maximum penalty of death for the offence of murder.

You may learn more about the differences between murder and culpable homicide, including their penalties, in our other article.

Elements that Must be Established for a Successful Defence of Provocation

In order for the defence of provocation to succeed, there is a 2-stage test that must be satisfied.

  1. First, the accused has to prove that he had been deprived of his self-control by the provocation. In ascertaining “self-control”, the accused’s behaviour during the time of the offence would be of great evidential value. The loss of self-control has to be sudden and temporary, causing the accused to be so subject to passion as to make him lose control over his mind.
  2. Second, the provocation must have been “grave and sudden”, which involves the use of an objective “reasonable man” test. This test considers whether an ordinary person of the same gender and age as the accused, and sharing such of the accused’s characteristics would affect the gravity of the provocation, and if placed in the same situation as the accused, would have been so provoked as to lose his self-control.

In the case of Pathip Selvan s/o Sugumaran v Public Prosecutor, the accused managed to successfully raise the defence of provocation after being charged with murder for stabbing his girlfriend to death. The accused and the victim had had a tumultuous relationship where they fought over her infidelity, but eventually always reconciled. He even had plans to marry her, and bought her a “Thali” (Hindu nuptial chain) as a symbol of their relationship. Leading up to the incident, he had caught her kissing another man in bed and confronted her about it. While he was crying, she told him that “he is better than you in bed that is why I am after him”.

The court found that the accused’s being taunted in such a way, while already in a heightened emotional state, resulting in him losing self-control when he stabbed her. The fact that he had stabbed the victim in an entirely random and frenzied manner also suggested that the accused had lost self-control. Accordingly, the first stage of the test was met.

The second stage of the test, namely that the provocation must have been objectively grave and sudden, was also satisfied. The accused had had intensely passionate feelings for the victim and fully expected to reconcile with the victim after the latest confrontation. However, instead of seeking forgiveness for her infidelity as she had done in the past, the victim taunted him, provoking him into losing self-control and stabbing her almost immediately after.

The court found that this constituted grave and sudden provocation for the purposes of the second stage of the stage. With both stages of the test satisfied, the defence of provocation was made out and the accused was convicted of culpable homicide instead of murder.

When Will the Defence of Provocation Not be Available?

The accused will not be able to successfully raise the defence of provocation if it is shown that:

  • The provocation had been self-induced (brought on/about by the offender himself).
  • The provocation had been done in obedience to the law or by a public servant, within the exercise of powers given.
    • An example of this would be when the accused is provoked by a police officer lawfully arresting him and hence kills the police officer. The defence of provocation would not be made available as the provocation had been lawfully done by a public servant.
  • The provocation had been given by anything done in the lawful exercise of the right of private defence.
    • An example of this would be when A attempts to punch B, but B, in exercising the right of private defence, holds A down to prevent him from doing so. A then becomes provoked and kills B in the process. This would constitute murder as the act of provocation was done in the right of private defence.

As seen from the above discussion, successfully raising the defence of provocation involves more than claiming that you had been provoked at the relevant point in time. There are strict legal criteria to be met, from establishing that you had in fact lost self-control at the material time, and also being able to convince the court that an ordinary person in your position would have similarly found the provocation grave and sudden. Proving the defence hence requires specialised expertise in the law that only a criminal lawyer will be able to provide.

If you have been charged with murder, you will automatically be assigned a lawyer under the Legal Assistance Scheme for Capital Offences (LASCO) to defend you in court if you don’t have a lawyer of your own. However, you may wish to consider engaging your own criminal lawyer if you have the means to do so.

By doing so, you will be able to look for a lawyer whom you feel can best represent your interests. When speaking to your lawyer, seek their advice on the defences available to you and how you should proceed with your case. In particular, they will also be able to advise on whether it is in your interests to raise the defence of provocation, or some other defence, in view of the severe penalties that may follow from being charged with murder.

You may get in touch with experienced criminal defence lawyers in Singapore here.

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