Luc Thiet Thuan [1997] AC 131 Privy Council (Appeal from Hong Kong)

The appellant killed his ex-girlfriend. He claimed she owed him money and tied her up and took her to a cash point and forced her to reveal her code knife point. He then claimed that she mocked his sexual ability and boasted that her new lover was a better performer. He lost his control and stabbed her multiple times. At his trial medical evidence was given that the defendant suffered from an organic brain problem induced by a head injury. However, the defendant's responsibility was not found to be substantially impaired. The trial judge did not refer to the medical evidence in directing the jury on the issue of provocation and whether the organic brain problem could be taken into account in assessing whether a reasonable man would have done as the defendant did. The jury convicted him of murder (which carries the death penalty in Hong Kong). The defendant appealed on the grounds that the judge should have directed the jury on the medical evidence in relation to provocation.

Held:

Appeal dismissed conviction for murder upheld. (Lord Steyn dissenting)

Lord Goff gave the leading speech in which he stated that English law had taken a wrong turning in Newell as applied in Aluwahlia and Thornton in allowing mental characteristics to be taken into account when assessing whether a reasonable man would have done as the defendant did. Allowing such mental characteristics blurs the distinction between diminished responsibility and provocation. It also lowers the evidential burden on the defendant. Mental characteristics may only be taken into account where the provocation is by words such as taunts or insults about the characteristic which affect the gravity of the provocation but not in the assessment of whether a reasonable man would have reacted in the same way as the defendant.

Back to lecture outline on the defence of provocation in criminal law