Just because the defendant is generally behaving badly and / or provoking trouble does not automatically mean the qualifying triggers are disqualified under ss55(6) (a-b).
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VIDEO CHAPTERS
00:00 Introduction
00:14 Case facts
01:06 Case outcome & legal principle
CASE SUMMARY
Facts:
The defendant had returned home to find his estranged wife asleep on the sofa with a man that he did not know. The defendant began punching the victim and hitting him with a vodka bottle. The victim took hold of the vodka bottle and tried to attack the defendant, who then went to get a knife and stabbed the victim. The judge did not leave the defence of loss of control to the jury upon the grounds that the defendant had incited the violence, and this prevented the defence being available under the new statute as it meant that there was no available qualifying trigger.
Outcome: Appeal dismissed. Defence not available.
Legal principle:
Just because a defendant starts a conflict, or is aggressive does not automatically mean the qualifying triggers are not available, … ‘the mere fact that in some general way the defendant was behaving badly and looking for and provoking trouble does not of itself lead to the disapplication of the qualifying triggers.’ Though the court did speculate that ‘One may wonder (and the judge would have to consider) how often a defendant who is out to incite violence could be said to "fear" serious violence; often he may be welcoming it. Similarly, one may wonder how such a defendant may have a justifiable sense of being seriously wronged if he successfully incites someone else to use violence towards him’.
