Van Dongen and Another, Regina v: CACD 5 Jul 2005

The defendant brothers appealed convictions for murder. They had pleaded self defence. The injuries on the deceased suggested a substantial number of wounds were inflicted when he was in a curled up defensive post.
Held: The provocation direction was requested, and there was evbidence to support it as a possibility. It could have been given with care so as to avoid undermining other defences. Its absence was a misdirection. The court consideerd under what circumstances it might be correct to apply the proviso to allow a conviction to stand and ‘Justice in a criminal trial rightly and necessarily concentrates on justice for the appellant. But the court must not overlook the matter of justice for those concerned with the victim also, nor the requirements of a proportionate criminal appellate system, which include that those who are surely and fairly shown to be guilty of murder, and have been so found by a jury, should not escape that consequence on gossamer grounds. In our judgment, the unavoidable facts of this case and the necessary logic of the jury’s verdict rule out any possibility of a miscarriage of justice.’ The appeal failed.
May LJ
[2005] EWCA Crim 1728
Bailii
England and Wales
Citing:
CitedRegina v Acott CACD 5-Apr-1996
To decide whether a judge’s duty under section 3 was triggered it was essential to bear in mind that the word ‘provocation’ was used in an active and not a passive sense. Provocation was that which provoked; it was not the state of being in a temper . .
CitedRegina v Miao CACD 17-Nov-2003
The defendant appealed his conviction for murder. His main defence had been that there had been no intention to kill, but the judge had refused to leave to the jury the possibility of provocation.
Held: There was evidence of potentially . .
CitedRegina v Acott HL 12-Mar-1997
Provocation is not an issue in murder until evidence is given which takes the issues beyond a mere refuted cross examination. If there was ‘insufficient material for a jury to find that it is a reasonable possibility that there was specific . .
CitedRegina v Jones CACD 22-Oct-1999
Roch LJ said: ‘Trial judges are inevitably aware that the giving of a provocation direction must tend to undermine lines of defence such as those which were advanced on behalf of the appellant in this case. It is unlikely that a person who has lost . .
CitedRegina v Whitfield CACD 1976
The court declined to apply the proviso to allow conviction of the defendant where the judge had given a msidirection, saying that to do so would be to determine the issue otherwise than by verdict of the jury. . .
CitedRegina v Burgess and McLean CACD 1995
Section 3 of the 1957 Act spells out the function of the judge and jury at the trial. The section is dealing with the trial, not the appeal. . .
CitedConfessor Valdez Franco v The Queen PC 14-Aug-2001
(Antigua and Barbuda) The appellant had been convicted of murder, with his defence of self-defence rejected by the jury. His defence was self-defence. No defence of provocation was advanced at trial and the trial judge gave no direction to the jury . .
CitedRegina v Cox CACD 12-Apr-1995
The proviso may be applied by the Court of Appeal despite the Judge’s failure to leave the issue of provocation with the jury. As a matter of law, the court in an appropriate case might apply the proviso to section 2(1) of the Criminal Appeal Act . .
CitedBullard v The Queen PC 1957
The question was whether there was evidence on which the jury could have found a verdict of manslaughter on grounds of provocation rather than the verdict of murder which had been returned.
Held: There is naturally a tendency for an appellate . .
CitedRegina v Rossiter CACD 1992
The defendant was charged with a murder. The very manner of the killing suggested that he was at the time of the killing in a state of uncontrolled frenzy. However, Russell LJ said: ‘We take the law to be that wherever there is material which is . .
CitedRegina v Smith (Morgan James) HL 27-Jul-2000
The defendant had sought to rely upon the defence of provocation. He had suffered serious clinical depression.
Held: When directing a jury on the law of provocation, it was no longer appropriate to direct the jury to disregard any particular . .
CitedHer Majestys Attorney General for Jersey v Holley PC 15-Jun-2005
(Jersey) The defendant appealed his conviction for murder, claiming a misdirection on the law of provocation. A chronic alcoholic, he had admitted killing his girlfriend with an axe. Nine law lords convened to seek to reconcile conflicting decisions . .
CitedRegina v Dhillon CACD 27-Nov-1996
The defendant appealed against his conviction for murder saying that the defence of provocation had not been left to the jury. The trial judge had thought that there should be a provocation direction, but neither prosecuting nor defence counsel . .

Cited by:
CitedJames, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
CitedSerrano, Regina v CACD 1-Dec-2006
The defendant had been convicted of murder in 1972. He now appealed on a reference by the Criminal Cases Review Commission questioning the failure of the judge to direct on provocation. He had killed a girl after they tried but failed to have . .

These lists may be incomplete.
Updated: 10 April 2021; Ref: scu.228483