Domestic violence problem

For Ghori to be liable of any homicide offence there are three common elements that must be established: (1) She must cause, (2) the death of a, (3) human being. It is not evident that she has killed her son.  When a post mortem is done we will know the cause of his death.  The prosecution must prove that the death was caused by Ghori.  There must be both a factual cause and a legal cause.  Factual causation; the satisfaction of the “but for test”, that is but for the conduct of the accused the victim would not have died.  

In “R v Pagett (1983) 76 Cr App R 279 – an armed criminal used his girlfriend as a human shield.  The police returned his fire; the girlfriend was killed by a police bullet.  It was found that if it was not for his actions she would not have died.   The original injury must be more than the minimal cause of death – the de minimis principle.  This can be questioned; it is not clear that Televir actually drank the poisoned drink.  Legal causation: even if the factual causation is established then the court must still direct the jury as to whether the accused acts were sufficient in law to be a cause of the victims’ death.  R v White (1910) 2 KB 124 – “A Defendant will not be liable for the death if the victim would have died at the same time regardless of the defendant’s act or omission.”  Section eight of the criminal justice act (1967) looks at what the accused intended.  Prior to this, it was the reasonable man test.  This came about because of DPP v Smith (1961) AC 290.  The “jury is now not bound to find that the defendant intended the result, just because it was a natural and a probable result of the defendant’s act. The jury must now look at all the relevant evidence and decide the defendant’s intention”.  Did Ghori intend to kill her son?  “The mens rea of murder is the intention to kill or commit grievous bodily harm”.  The actus reus and mens rea must coincide, this is known as the contemporaneity rule.  “However, the courts are sometimes prepared to hold that they must coincide at some point in time, R v Jakeman (1982) 76 CR APP R 223”.  Ghori does have the intention for murder to her husband.  “Intent is defined as covering both “purpose” and knowledge that a result “would occur in the ordinary course of events if she Ghori were to succeed in her purpose of causing some other result”.  The latter part of the definition means that she will not intend something which she wishes to avoid;” e.g. she did not intend to hurt her child by leaving a poisoned drink on display, but the result is obvious.  In law, there are two types of intent; Ghori has shown direct intent; this is the typical situation where the consequence is foreseen as virtually certain.  Ghori has shown oblique intention to her son,  she knows that someone will certainly die, although she can honestly say that she does not want Televir to die, and would hope that he would survive.  

The second offence Ghori could be charged with is manslaughter.  “Manslaughter is not defined by statute.”  This is “where the defendant kills with the fault required for murder but, because of the presence of a defence recognised by law, the offence is reduced to manslaughter”.  Manslaughter is split into two brackets voluntary and involuntary, if Ghori is charged she will only be charged with manslaughter.  “Voluntary manslaughter was a construction of Parliament, done under the Homicide Act 1957”.  It is the more serious; the accused has to have the mens rea for murder, but there is a defence e.g. in Ghori’s case provocation.  

Involuntary manslaughter; “this expression covers cases where there was no intention to kill or to cause serious injury, but where the law considers that the person who caused death was blameworthy in some other way”. It is most likely that Ghori will be convicted of this with regards to the death of her son.  “Under the law as it stands at present, a person who unintentionally causes death is treated as sufficiently blameworthy to attract serious criminal sanctions in two cases. The first, known as “unlawful act manslaughter”, arises where the person who causes death was engaged in a criminal act which carried with it a risk of causing some, perhaps slight, injury to another person”.  R v Goodfellow (1986) 83 Cr App R23 – the court held that all that was necessary was to show that there was an unlawful, intentional act which reasonable people would feel was likely to result in serious injury”.  “The second type of involuntary manslaughter, “gross negligence manslaughter”, is harder to define. To put it very simply, the offence is committed by those who cause death through extreme carelessness.” “In order to determine whether an act constitutes the offence of, the Crown must establish that: There was a duty of care owned by the accused to the deceased.  There was a breach of the duty of care by the accused.  Death of the deceased was caused by breach of the duty of care by the accused.  The breach of the duty of care by the accused was so great as to be characterised as gross negligence and therefore a crime.” Ghori has satisfied both cases.  Ghori did intend to kill her husband; a likely defence is provocation because of this she could be charged with manslaughter for Televir’s death.  This is the concept of transferred malice.  Ghori’s intent is transferred by the mens rea to kill Ameerika; this can be intention or recklessness.  She fails to poison Ameerika but inadvertently kills her son (has to be proven); she causes an actus reus which transfers the result of death by poisoning.  R v Pembliton (1876) LR 2 CCR - Lord Coleridge C.J. said, “It is common knowledge that a man who has an unlawful and malicious intent against another, and, in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the person is doing an unlawful act, and has that which the judges call general malice, and that is enough.”

Ameerika has behaved unacceptably to his wife, he cannot go unpunished.  It would be an injustice.  The offences discussed below are relevant to Ameerika and what he could be charged with.  Assault – this is putting a person in fear of harm.  Battery – like assault is regulated by section 39 of the criminal justice act 1988, this is applying unlawful force to another person.  This can amount to just touching if the touching is not welcome.  Battery can also be indirect force.  The next offence is actual bodily harm covered by section 47 of the offences against the person act 1861.  This is causing assault or battery and in doing this causing actual bodily harm.  To be charged with this the defendant must have the appropriate mens rea for battery.     

In R v Donovan [1934] 2 KB 498 at 509, [1934] All ER Rep 207 at 212 – “Swift J expressed the view that “‘bodily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere with the meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such injury need not be permanent, but must…be more than merely transient and trifling.”  The most serious offence is wounding and inflicting causing grievous bodily harm; this is regulated also by the offences against the person act 1861.  It can be a difficult to prove, the harder to prove is section 18.  Section 18 carries a life sentence and the intention must be specific.  Section 20 is easier to prove it relates to recklessness and carries a 5 year prison sentence.  The intention is subjective recklessness.  Although legislation is not clear enough with regards to grievous bodily harm.  C (a minor) v Eisenhower (1984) QB 331 (1983) 3 WLR 537;78 Cr App R 48 – a child was shot by an air gun, the pellet ruptured a blood vessel causing internal bleeding, hence the injuries were not visible to the naked eye, no breaking of the skin was evident.  No offence committed.  All of these offences are dependant on Ghori, often victims do not want to report crimes especially ones involving domestic violence.  Clearly it will be beneficial for Ghori to mention this because this is a defence for her causing her son’s death.  

If it is found that the poisoned tea killed Televir then Ghori will go to prison for a long time.  Manslaughter (possibly for Televir) and attempted murder (for Ameerika) both carry a maximum sentence of life imprisonment.  Provocation is only a defence for murder and not attempted murder.  Ameerika is looking at a five year sentence most probably been charged with actual bodily harm.  Both parents should not have left Televir alone in the house.  The “law does not specify an age when a child can be left unsupervised. However, parents may be prosecuted for neglect if they leave a child alone “in a manner which is likely to cause unnecessary suffering or injury to health” (Children and Young Persons Act, 1933).”  This is another possible offence that both parents could be charged with.  Common sense should have prevailed the child should have never been put in the situation which eventually ended with his death.  Both parents are guilty in some way all in all a child has died and someone has to pay.

   

   

   

 

         

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