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Apex court refuses defence of ‘cumulative provocation’

 | January 12, 2017

Only the defence of 'grave and sudden provocation' is provided for as an exception to murder, says court.

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PUTRAJAYA: The Federal Court has declined to recognise the defence of “cumulative provocation”, better known as “battered wife syndrome”, as mitigating grounds for an accused charged with murder.

This was made clear in the case of Nepalese worker Surbir Gole who was found guilty of killing a woman supervisor at a bakery in Johor Bahru four years ago.

Surbir faced a murder charge but the High Court later reduced it to culpable homicide not amounting to murder

His lawyer, Salim Bashir, argued that the words uttered by the deceased were grave enough for a person to lose his self-control and that amounted to an act of provocation.

The Court of Appeal had upheld the defence (of cumulative provocation). The Federal Court affirmed Surbir’s 10-year jail term — but on grounds of “grave and sudden provocation”.

Justice Zaharah Ibrahim, who delivered the judgment of the five-man bench, said the apex court only recognised the defence of grave and sudden provocation, as established in past Federal Court judgments.

“We ought to be reminded that the defence of cumulative provocation does not exist in our criminal law, and therefore we are not persuaded that it is a permissible defence for murder (under section 300 of the Penal Code),” she said.

She said only the defence of grave and sudden provocation was specifically provided for as an exception to murder.

“We are not inclined to agree with any departure from the established law,” she said in the judgement, made available in the judiciary’s website.

She said it appeared that that the term “cumulative provocation”, referred to by the High Court and Court of Appeal in this case, was used in relation to a series of provocations, each of which was not by itself grave.

“It is only when all the provocations in the series are accumulated that the total sum becomes grave provocation,” she added.

Salim urged the bench to depart from its earler decisions and to extend and liberalise the definition of provocation, but the court refused this argument.

Government lawyer K Mangai had urged the court to find the accused guilty of murder.

The defence of cumulative provocation (battered wife syndrome) was first introduced in the United Kingdom in the 1992 case of Regina v Aluvalia. The Malaysian Court of Appeal adopted it in the case of Rikky Purba v Public Prosecutor in 2014.

Surbir, 27, was found guilty of committing culpable homicide, not amounting to murder against Tan Ai Ping at the Ming Ang Bakery house in Johor Bahru on Sept 6, 2012.

He stabbed the victim with a knife several times before cutting his wrist and neck.

Zaharah said the accused had testified that the deceased had mistreated him by using abusive and harsh words.

A few days before the incident, the abusive words became worse.

Zaharah said the final straw that broke the camel’s back was when the deceased had uttered the words “Which woman gave birth to a son like you?” (“Ibu manakah yang melahirkan anak seperti kamu ini?”)

The judge said given the accused’s psychological stress, social and religious background, given his claim that his mother was sick in Nepal and that he was trying to return home, these words constituted grave provocation.

She said the multiple stabbings showed that Surbir was enraged, which resulted in him acting in that way.


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