Criminal Law - Problem Question - Homicide

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Assignment No.2

"Alan, a soldier, was home for the weekend.  He possessed several rifles. In a drunken argument with his father, Brian, as to who was the better shot with a gun, Brian threatened to break Alan’s nose.  Alan was afraid of his father but he was the first to load one of the rifles and, a little wobbly on his feet, took aim at Brian and, in haste, shot and injured him.  Feeling shocked, Alan fired a second shot at an expensive vase which shattered.  Alan managed to call for an ambulance but the ambulance was delayed by a freak storm.  Eventually, Brian arrived at hospital where his injuries were treated.  After several days he developed an infection in the wound.  He was treated by Doctor Chris with an antibiotic to which Brian was allergic.  The next day, seeing that he was no better, Doctor Chris administered more of the same antibiotic to Brian in extremely large doses.   That night, weak, delirious and close to death, Brian jumped out of the window when he saw the doctor approaching.  He fell two storeys to the ground and was killed.

Alan confessed to the police that he had lately been hearing voices and believed that his father Brian was the devil.  He had not wanted to kill but had wanted to frighten his father.  Doctor Chris confessed to the police that he was diabetic and had not had time to eat properly after taking his insulin.

Discuss the liability of the following:

1. Alan for the death of Brian.

2. Alan for the destruction of the vase.

3. Doctor Chris for the death of Brian.

Alan for the death of Brian

The first issue here is whether Alan is, prima facie, guilty of homicide, either murder or manslaughter, and, if he is, whether he will be able to rely on the defences of insanity, intoxication, provocation or diminished responsibility.

        The actus reus of murder and manslaughter, both common law offences, was given by Coke in the seventeenth century: “Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party or implied by law”. There are four elements to this which must be proven by the prosecution beyond all reasonable doubt.

        The first element of the actus reus, the unlawful killing, is satisfied in Alan’s case because he does not have any justification, such as self-defence, which would render the killing lawful. The second element, causation, constitutes both factual and legal causation. In order to establish factual causation, the ‘but for’ test is applied (White). Since Brian had not died but for Alan’s act of shooting at him, Alan has factually caused Brian’s death.

The next aspect which needs to be examined is legal causation. For this, there needs to be an unbroken chain of causation which will solely be broken by a novus actus interveniens of free, deliberate and informed nature as for example in Rafferty. It is however not easy to break a chain of causation (Pagett). A novus actus interveniens usually occurs through a third party but can theoretically also occur through a natural cause. Thus, not only the doctor’s wrong medical treatment, but also the delay of the ambulance as a result of a freak storm could constitute an intervening act. The latter is however unlikely to have broken the chain of causation. The more relevant event is the administration of the antibiotic to which Brian was allergic. A case with very similar facts, Jordan held that where the doctor’s act is ‘palpably wrong’, the chain of causation will be broken. Doctor Chris’ act certainly worsened Brian’s condition but Alan need not be the sole cause. Important is whether the wounds from Alan’s shot were still an operating and substantial cause after Brian had been in hospital for several days. In Smith and Cheshire, Jordan was distinguished and was said to be a case on special facts. Accordingly, apart from a completely overwhelming event, the courts have demonstrated a distinct reluctance to hold that an intervening act exists (McKechnie) and the court might consequently hold that Chris’ act did not break the chain of causation.

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Furthermore, it must be considered whether the victim’s act of jumping out of the window broke the chain of causation. The general rule is that the defendant needs to take his victim as he finds him (Blaue), meaning that the victim’s unforeseen physical or psychological abnormalities will not prevent the defendant’s liability. However, in Dear it was held that the victim committing suicide will break the chain of causation, as long as it is not connected to the defendant’s offence. Whether Alan is the legal cause of Brian’s death is debatable as these two events might have broken the chain of ...

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On the whole, a fairly thorough examination of the law on murder. Better application of medical treatment in the context of causation, to the facts, is needed here. The law on provocation is also now outdated; the new defence of "loss of control" applies. 4 stars.