Homicide - Maltese Law.

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HOMICIDE

Maltese Law

Manzini commenting on the offence of wilful homicide, considered that, [o]ggetto della tutela penale, in relazione ai delitti di omicidio, è l'interesse dello Stato concernente la sicurezza della persona fisica, in quanto riguarda particolarmente il bene giuridico della vita umana, considerato nella relazione fra uomini.1 From this reflection it seems quite evident that the law in creating the offence of wilful homicide, tries to protect human life from ending preternaturalmente per il fatto dell'altro uomo.2

Some authors thought that, homicide could be simply defined as: la uccisione dell'uomo commessa dall'altro uomo.3 Carrara however observed that this definition is rather unsatisfactory, as it excludes an essential characteristic of the material element of the offence. The death of a person, which could in some way or another be attributed to another person, does not necessarily entail the perpetration of a homicide. Thus Carrara opted for a more precise definition of the material element of the offence. He stated that [l']omicidio...si definisce - la strage dell'uomo ingiustamente commessa da altro uomo.4

The definition of wilful homicide in section 211(2) of the Maltese Criminal Code, is to a certain extent even more complete than the above statement as it incorporates also an illustration of the mental element. Under this section, A person shall be guilty of wilful homicide if, maliciously with intent to kill another person or to put the life of such other person in manifest jeopardy, he causes the death of such other person.

The position at English law is quite similar to that under Maltese law. There are nonetheless a number of differences, which are quite significant. The classic definition of murder at English law is that provided by Coke:

Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within a county 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, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same.5

The general notion of homicide in civilised countries, requires that both the active subject and the passive subject of this offence be persons. Per uomo qui s'intende ogni qualsiasi individuo che alla specie umana appartenga.6 This premise, insofar as the agent is concerned, is however subject to the exemptions from criminal responsibility granted by the Criminal Code. Even under English law the active subject must be a man of sound memory, and of the age of discretion. This simply means that the active subject must be a man [or a woman] who is responsible according to the general principles,7 at law.

As regards the passive subject, any distinction as to sex, age, race or status is irrelevant within the context of this offence. Even at English law, Coke's reasonable creature in rerum natura simply means any human being. Archbold held that this distinction referred to the appearance rather than to the mental capacity of the victim. Thus Archbold considered Coke's definition as being apt to exclude monstrous births. Carrara was to a certain extent more precise in this respect and he held that, the passive subject could even be di forme mostruose purchè umane.8

The killing of an unborn child, does not amount to a wilful homicide. Non può essere soggetto passivo dell'omicidio il feto prima della nascita, perchè qualunque sia lo stadio della così detta vita intrauterina, il prodotto del concepimento non ha ancora acquistato il bene tutelato, la vita in senso proprio.9 L'uccisione del feto durante il parto, quando il feto stesso sia nato vivo, costituisce invece comune omicidio.10 There could be instances, where the child is born and dies owing to injuries suffered prior to his birth. In such a case, the child would have acquistato il bene tutelato, la vita in senso proprio, as required by Manzini. At English law, [i]f the child is poisoned or injured in the womb, is born alive and then dies of the poison or injury, this may be murder or manslaughter.11 Smith and Hogan held that in modern law, a person who intends to kill or cause serious injury to an unborn child, does not have the necessary mens rea for murder, as the victim was not a person in being. It is submitted that this depends on the agent's intent. If the agent foresees that the child could be born and die subsequently or that the child's life could be put in manifest jeopardy, after birth, there could be a wilful homicide at Maltese law. Murder is a result crime. It is consummated with the death of the passive subject. If the agent had the required mens rea, and his acts caused the death of the child, after birth, the agent would be guilty of wilful homicide.

As in English law, under Maltese law it is generally held that the foetus becomes a person as understood in section 211(2), if it has an existence independent of its mother. The killing of a child prior to this independence, would not amount to a wilful homicide. At English law, it is essential that the child must have been wholly expelled from its mother's body and be alive.12 The umbilical cord, need not have been expelled from the mother or severed from the child.

The two tests of independent existence, that are generally accepted, are: i) that the child must have breathed after birth and ii) it must have an independent circulation from that of his mother. There are however a number of problems with both tests. There is no means to ascertain, when the child's circulation is so dissociated from his mother's, as to allow it to live without the help of parental circulation. Furthermore, this dissociation could precede birth. Smith and Hogan comment, that the courts have not delved into such intricacies in the recent years. As regards the "breathing test", Park J in Brain,13 held that, it is not essential that it should have breathed at the time it was killed; as many children are born alive and yet do not breathe for some time after their birth. This reasoning would seem to limit significantly the general applicability of the test.

In 1991 in Rance v. Mid-Downs Health Authority,14 (a civil action which dealt with the issue), it was held that a child is to be considered as being "born alive" if -

after birth, it exists as a live child, that is to say breathing and living by reason of its breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with its mother.

This reasoning is correct, yet it does not seem to consider the problem mentioned in Brain. It could be that in many instances, the two tests provide an adequate solution. Yet the above mentioned flaws have not been solved, but merely disregarded by the English courts. This solution of the issue is far from being satisfactory. Smith and Hogan, have justified this approach; with the fact that there are very few reported instances of this sort. Apparently, in Malta, the cases are even less common. In the absence of recent local authorities on the matter, it would seem appropriate to use the English principles as guide-lines within the Maltese ambit.

The passive subject in the offence of wilful homicide, must necessarily be alive. Non può commettersi omicidio in relazione a un cadavere, che non è persona.15 With the constant evolution of medical techniques, it is becoming increasingly difficult to establish the moment at which the death of an individual occurs. Is P dead and therefore incapable of being murdered, if his heart stopped beating but a surgeon confidently expects to start it again...? Is P dead if he is in a "hopeless" condition and kept alive only by an apparatus of some kind? There is, at present, no certain answer to these questions which are being raised in an acute form by...[organ]...transplant operations.16 The current view is that, the test is one of cerebral death. This can be determined with certainty.

Carrara held that the means employed could generally be classified as diretti or indiretti, per commissione o per omissione. Each category could then be further subdivided into fisici, meccanici, materiali or morali. These classifications have only a technical value, as in practice the means employed are irrelevant. Carrara himself admitted that [i]ndifferenti pure sono alla essenza di fatto di questo titolo i mezzi adoperati ad uccidere.17 Alla essenza di fatto dell'omicidio basta solo che un uomo sia morto, e che di questa morte sia stato causa volontaria il fatto ingiusto dell'uomo.18

There has to be a causal link between the agent's act and the death of the passive subject. L'elemento materiale del delitto di omicidio richiede che l'agente sia causa della morte di una persona.19 Section 211(2) of the Criminal code, requires that he (the agent) causes the death of... the passive subject. Under Maltese law, è indifferente il tempo interceduto tra l'azione della causa e la produzione dell'effetto.20 Manzini points out, that when the death does not follow immediately the fact causing the death, the causal nexus must be ascertained with particular attention, owing to the possible contribution of other causes.

This is one of the main differences between the English notion of murder and the Maltese notion of wilful homicide. According to Coke's definition, the party wounded, or hurt, etc. [must] die of the wound or hurt, etc. within a year and a day after the same. If the death occurs after the lapse of a year and a day, there is a presumption juris et de jure that there is no actus reus. The idea behind this rule originated in medieval times, as after a certain lapse of time between the cause and the death, medical science could not attribute with certainty the death to a particular cause. Thus whereas Maltese doctrine, has opted for the approach suggested by Manzini, according to whom, occorre accertare con particolare rigore il nesso di causalità,21 without however imposing any time-bar, English penal doctrine has opted for this arbitrary approach. Smith and Hogan, do not think that this justification for the rule applies any more, owing to the development of medical science. They think that the rule, can be justified only on the ground that the one who has injured another should not remain indefinitely at risk of prosecution for murder.22

It seems however that finally, England is doing away with this rule. -

The change follows pressure from members of parliament and lawyers, who argued that modern medical technology means people can now be kept alive longer after injuries which would once have been rapidly fatal... [T]he home secretary Michael Howard said the government had decided to abolish the rule, although with safeguards.23

Any kind of homicide is simply an acceleration of death. It is immaterial whether the victim, is already suffering from a fatal disease or injury or is under sentence of death.24 The only relevant issue, is the causal link between the agent's act and the passive subject's death. Ma quando il caso esce da una forma semplice, e si complica per la concorrenza di più cause,25 the question of causation, becomes a rather complicated issue.

The very first premise, is that a person cannot be found guilty of having caused a particular event, when in fact that same event would have occurred in the very same way, even without his intervention. It must be proved that, but for, [the agent's] act, the event would not have occurred.26 Thus the act must be the sine qua non cause of the event. This is an essential element in the field of causation. It is however, a mere starting point. Many events, would not occur, but for, a particular act. This does not mean that the person responsible for that act, is also responsible for the consequence. If a person invites a friend to his house, and the latter is run-over and killed on the way, it might be argued that the victim, would not have died, if there had not been an invitation in the very first place. This however would not mean that the person who invited the victim, is also responsible for his death.

Many a time, the act of the accused is not the sole or main cause of the victim's death. There may be other contributory causes, performed by third parties or by the passive subject himself. At English law it is generally held that, the act of the accused, must be a substantial cause of the death.27 In other words, there must be something more than a merely minimal cause (de minimis). In Cato,28 it was held that, ...it need hardly be added that [the cause] need not be substantial to render the accused guilty. In other words, the cause must merely be, "other than minimal".

The issue, becomes even more complicated, when intervening causes are taken into account. In Repubblika ta' Malta v. Casaletto,29 it was correctly pointed out that [i]d-dottrina tal-konkawza ma tista' qatt tapplika ghad-delitt ta' l-omicidju volontarju. Section 219 of the Criminal Code, dealing with the decrease of punishment in case of a supervening accidental cause, considers this possibility only in the case of a grievous bodily harm as contemplated in section 216 and in the case of a "very grievous" bodily harm as contemplated in section 218 (other cases of grievous bodily harm). The principle behind the mitigation of punishment in section 219, is that the supervening accidental cause, may have caused a harm which is more serious than that which the accused would have caused by himself. On the other hand, in the case of wilful homicide, if the act of the accused would have sufficed to cause the death of the victim, he should not benefit from such a mitigation. A supervening accidental cause, would in such a case be superfluous, as the agent's act would have sufficed. There is no point in decreasing the punishment.

The issue, is completely different where the accused attempts to kill the victim, but the latter dies because of a totally different cause. If X gives a lethal dose of poison to Y, but the latter is shot to death by Z, X would not be responsible for Y's death. This remains so, even though Y would have died eventually because of the poison. The accused must be judged by what actually happened, not by what would have happened but for subsequent events.30 This is no longer a case of konkawza, as the act of the accused did not contribute to the victim's death, and was thus extraneous to it. Under such circumstances, one can no longer speak of a supervening accidental cause, as X's act is not a cause of Y's death. The harm inflicted by Z was not a supervening cause to the harm inflicted by X, as his act was not even a cause of the victim's death, in the very first place. There is a very important distinction, between a supervening act or event which is a contributory cause to the event and one which is the sole cause of the event. The former is a konkawza, and does not afford any mitigation in wilful homicide. The latter is the only cause of the event, breaking the causal link with the first act. Z's act broke the possible causal link, which could have been created between X's act and the victim's death. The difficulty is really in distinguishing between a supervening accidental cause (which merely facilitated the attainment of the agent's objective) and an act or event which was by itself the cause of the victim's death. From this point of view, reference to English case law, might be particularly helpful.
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In Smith,31 it was held that where the act of the accused, was still an operating cause and a substantial cause, of the victim's death, any other supervening accidental cause, would merely be a contributory factor and thus allow no mitigation to the accused. In an American case, People v. Lewis,32 the victim had received a mortal gunshot wound from the accused. This wound would have caused the death within an hour. However, the victim accelerated his own death by cutting his throat. It was considered, that the gunshot wound was still an operating cause and a substantial ...

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