Vincent stabs Kay, she survives long enough to give birth to the infant, but dies a few weeks later. The baby survives for 140 days, and then also dies.a) Explain the offence with which Vincent may be charged in respect of the death of Kay

Paper 2, November 1998, Question 6 Trina Soon

Vincent and Kay live together. Kay becomes pregnant by another man, and Vincent cannot come to terms with this. The relationship becomes more and more strained until eventually, when Kay is 28 weeks pregnant, they have a violent argument and Vincent stabs Kay in the abdomen.

She survives long enough to give birth to the infant, but dies a few weeks later. The baby survives for 140 days, and then also dies.

Explain the offence with which Vincent may be charged in respect of the death of Kay (15)
Explain the offence with which Vincent may be charged in respect of the death of the baby. (10)

a. In relation to the death of Kay, there is the possibility that Vincent would be charged under homicide. Vincent has the pertinent actus reus of homicide, whereby he has committed an unlawful killing in the Queen’s peace in the county of the realm and death occurs within 1 year and 1 day. Although Kay died after a few weeks after the stab, it was Vincent’s act that provided that cause in fact. Contrasting to the case of R v. White, where the defendant’s mother died not from the poison he served her but from a heart attack, here, it is quite clear that Kay died due to the stab. Furthermore, Vincent also provides for the cause in law, as Kay’s wound is both substantive and operative. This is because it was his doing that caused the injury (substantive) and this injury was still present at the time of Kay’s death (operative), as in R v. Malcherek & Steel, where it was held that original injuries were still an operative cause of the victim’s death. Furthermore, there was no sign of Novus Actus Intervenis, any intervening event that may direct the liability away from Vincent. The chain of events points out that Vincent retains the relevant actus reus for homicide.

This is a preview of the whole essay

According to the mens rea of murder, proof of intention to kill or cause grievous bodily harm must be shown, as established in R v. Moloney, holding that intention may be inferred from the defendant’s foresight of consequences. By standards of any reasonable man, stabbing any person in the abdomen would unquestionably cause harm. In R v. Woollin, the defendant killed his child by throwing him onto a hard surface, and it was held that intention can be found when the defendant foresaw the consequence as a virtually certain result of conduct. Also, in R v. Nedrick, the defendant poured paraffin through a letterbox and set it alight just to scare the occupants, but ended up killing two people. It was held that intent couldn’t be inferred unless the defendant appreciated that the consequence was a virtual certainty. As such, Vincent knew the consequences of his actions, and still had an intention to harm. Thus, he has the apt actus reus and mens rea, and can be charged for homicide.

However, Vincent’s charge for murder may be reduced to voluntary manslaughter, if he can prove any of the mitigating factors, namely diminished responsibility and provocation. According to Section 2 of the Homicide Act 1957, diminished responsibility is defined as an abnormal state of mind (at the time of murder) that does not constitute insanity. In R v. Byrne, it was held that diminished responsibility may be caused by disease, injury, mental sub normality, and covers conditions like depression, irresistible impulse and other inherent factors. The law on provocation is under Section 3 Homicide Act 1957. For the defense of provocation to succeed, there must have been some act(s) or word(s) of provocation, so that the defendant loses control. The circumstances must also be as such that a reasonable man would have reacted the way the defendant did. Vincent could also plead automatism, as in R v.T, where automatism might be a defense when post traumatic stress disorder was induced by rape. In Vincent’s case, the stress might have been caused by Kay’s pregnancy and his non-acceptance of their situation, and if automatism is recognized, all charges against Vincent would be quashed and he will be acquitted.

b. Vincent may be charged with homicide in relation to the death of Kay’s baby. It is true that it is an unlawful killing in the Queen’s peace in the county of the realm and occurred within 1 year and 1 day. The baby is also already considered as a person, as stated in R v. Poulton that the child must have been fully expelled from the womb. Kay’s baby was also born after 28 weeks, and lived for 140 days, and as such can be identified as a “person”, as outlined in C v. S. In R v. West, it was held that if a person inflicts injury on a pregnant woman, and the fetus is also injured, the defendant’s liability to the child would depend on whether the child dies in the womb- if the child dies after being born alive, the defendant is liable. As such, Vincent holds the apt actus reus for homicide.

Kay’s child was born alive, and subsequently dies, due to the injuries caused by Vincent. In R v. Moloney, proof of intention to kill or cause grievous bodily harm must be shown and intention may be inferred from the defendant’s foresight of consequences. By stabbing Kay in the abdomen would unquestionably cause harm to both her and the baby. In R v. Woollin, the defendant killed his child by throwing him onto a hard surface, and it was held that intention can be found when the defendant foresaw the consequence as a virtually certain result of conduct. As such, Vincent’s intention to harm is evident. However, it is not known if Vincent’s rage was directed at Kay or at the baby. If it was directed at Kay, transferred malice is applicable here, as the actus reus is of the same type. Vincent’s act and intention to harm Kay, is the same as the act to harm the baby, contrary to R v. Pembilton where the act is not the same. In R v. Latimer, the defendant used a belt to strike a man, but injured a woman next to him. It was held that if the defendant had the mens rea of a crime and causes the actus reus of that crime against another person, the original mens rea is transferred to the actual actus reus. As such, any intention Vincent had to harm Kay, can be transferred to the baby.