CRW2601 - 15. The Effect of Provocation on Liability Exam Questions with 100% Correct Answers

Discuss Effects of Provocation. Correct Answer 1. May theoretically exclude X's voluntary act. (rarely in practice). 2. May exclude intention. 3. May confirm the existence of X's intention. 4. May serve as ground for mitigation of punishment after conviction. Discuss Test in respect of provocation. Correct Answer Provocation may be either words or conduct or both. The act of provocation need not be unlawful: it can still help exclude criminal capacity or intention even if it was lawful. Provocation can serve as a defence even if provocation was not directed at X but at Y, especially if there is a special relationship between X and Y (X kills Z who he catches in bed with his wife Y). Discuss Strict liability. Correct Answer Legislature sometimes creates crimes in respect of which culpability is not required. Our courts say: when legislature creates a crime, but is silent about culpability, court can interpret the provision as requiring no culpability. Thus: strict liability is found in statutory crimes only. Discuss Principles applied in determining whether culpability required. Correct Answer The rules for determining whether the legislature intended culpability to be an ingredient of the crime, are the following: The point of departure is an assumption or presumption that it was not the intention of the legislature to exclude culpability, unless there are clear and convincing indications to the contrary. Such indications can be found in: 1. the language and context of the provision. 2. the object and scope of the prohibition. 3. the nature and extent of the punishment prescribed for contravening the prohibition. 4. the ease with which the provision can be evaded if culpability is required. 5. the reasonableness or otherwise in holding that culpability is not an ingredient of the offense. 1. Language & Context Ordinary rules relating to the interpretation of statutes must be followed. 2. Object and scope of prohibition If the Act deals with the public welfare / health and safety, it is an indication that the legislature intended to create strict liability: public welfare offenses thus relate to factories, mines, processors of food, etc. According to our courts: when dealing with above mentioned, as much pressure as possible should be exerted on the manufacturers/companies in order to protect the public: thus: no culpability is required.