CUMULATIVE PROVOCATION IN DOMESTIC VIOLENCE AGAINST WOMEN: A COMPARATIVE ANALYSIS BETWEEN MALAYSIA AND ENGLAND AND WALES

• Published in: JOURNAL OF NUSANTARA STUDIES-JONUS
• Main Authors: Na'aim, Mohd Safri Mohammed; Rajamanickam, Ramalinggam; Nordin, Rohaida; Bolhil, Abang Ikhbal Abang; Kadir, Nur Hafidah Abd; Idris, Ashran
• Format: Article
• Language: English
• Published: UNIV SULTAN ZAINAL ABIDIN 2024
• Subjects: Area Studies
• Online Access: https://www-webofscience-com.uitm.idm.oclc.org/wos/woscc/full-record/WOS:001289759000014
• ISSN: 0127-9319; 0127-9386
• DOI: 10.24200/jonus.vol9iss2pp318-339

Background and Purpose: In Malaysia, there is no specific defence for female victims of domestic violence who in the unfortunate event killed their abusive partners due to provocation. In this instance, they can raise the defence of provocation as expressly stated in Exception 1 to section 300 of the Penal Code (Exception 1). Since the defence was not formulated specifically in the context of domestic violence, the application of the defence may not be able to appreciate the uniqueness of female victims of domestic violence. One notable issue is that of cumulative provocation. Exception 1 is silent as to the legal status of cumulative provocation. However, there have been cases where the accused raised cumulative provocation as a defence against the offence of murder. The research therefore, aims to analyse the legal position of cumulative provocation in Malaysia. Methodology: This research employed a doctrinal legal research approach, conducting a thorough analysis of relevant laws, including the Penal Code (Act 574), Homicide Act 1957 (HA 1957), and the Coroners and Justice Act 2009 (CJA 2009). In addition to statutory analysis, an examination of case law was undertaken to gain insights into the court's interpretation of the legal status of cumulative provocation. Furthermore, scholarly writings in this field were examined to provide a thorough understanding of the subject. Findings: The decisions of the Federal Court's cases of Che Omar bin Che Akhir v Public Prosecutor [2007] 4 MLJ 309 and Public Prosecutor v Surbir Gole [2017] 2 CLJ 621 show that cumulative provocation does not fall under Exception 1. This might lead the court to look only at the events that took place immediately before the killing as a single act. This can lead to a perception that the accused's response, including female victims of domestic violence to provocation is not sufficiently grave. Hence, it is proposed that the cumulative provocation is given statutory recognition under Exception 1 which allows the circumstances of the accused to be taken into account by the court in deciding the defence of provocation. Contributions: This research contributes to the corpus of legal knowledge on cumulative provocation in domestic violence against women within the legal framework of the criminal justice system.