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.
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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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 cause of the victim's death. The victim was dying because of the gunshot wound, he was not merely in pain. [A]fter the throat was cut he continued to languish from both wounds,33 and he died because of both wounds. The accused, would have been acquitted only if, the wound he inflicted was not substantial or not operative. In such a case, there would not have been the link between the act of the accused and the victim's death. Smith and Hogan, considered that this could have occurred, if the victim had blown his brains out and died instantly for then the bleeding from the original wound would not have been an operating cause.34
At English law, it is considered that where the victim dies as a result of some act or event which would not have occurred but for the agent's act and such act or event is a natural consequence of the agent's act, the agent is considered as having killed the victim. If however, the act or event which caused the victim's death, was not a natural consequence of the agent's act, the agent cannot be held liable.
In Perkins,35 the court gave a clear exposition of the term "natural consequence". It brought the example of a person who knocked down another and left him unconscious in a building. If the building subsequently collapsed because of an earthquake, and the unconscious person died, this was not murder. It is true that the blow was the sine qua non, of the victim's being in the building. However, the blow was not the cause of the earthquake, nor was the deceased left in a position of obvious danger.36 On the other hand, if the victim had been left on the seashore, with an imminent danger of an incoming tide and eventually drowned before recovering consciousness, it would be homicide. The victim's death is, a consequence which might be expected to occur in the normal course of events. [The victim's] being killed by the falling building in the former [example] was an abnormal and unforeseeable consequence.37
Furthermore, human intervention consisting in a foreseeable act, instinctively done for purposes of self-preservation or in the execution of a legal duty, would not be considered to break the chain of causation. In Pagett,38 the accused had fired at armed policemen, holding a girl in front of him as a shield. The policemen, fired back instinctively and killed the girl. It was held that the defendant had caused the girl's death, as the reaction was foreseeable. Insofar as the police were concerned, this was a purely accidental death. Smith and Hogan hold, that even if the killing of the girl by the policemen, had been an unlawful act, the accused would have still been guilty, as there may be two unlawful causes of the same death.
When on the other hand, an intervening act causing death is not foreseeable, it breaks the chain of causation whether it is intentional, negligent or merely accidental. [A]n act which might [not] be expected to occur in the ordinary course of events...[frees the defendant]...from liability.39 Smith and Hogan hold, that if a person is wounded but is carelessly given a deadly poison or improper medication in hospital, then the person who wounded him, would not be liable for his death. If on the other hand, the wounded party is receiving skilful medical treatment, but dies from the anaesthetic or the operation, the person who wounded him would be liable. In such a case, the victim's death could be expected to occur in the ordinary course of events.
The third principle, is that the agent must take his victim as he finds him.40 In Blaue,41 it was stated, that this refers to, the whole man, not just the physical man. In this case, the victim had received a stab wound in her lungs. She refused a blood transfusion, on religious grounds and died. The defendant claimed, that the victim's unreasonable reaction broke the causal link which had been created. However, the court stressed that [t]he question for decision is what caused the death. The answer is a stab wound.42 This was considered as a significant and operative cause of the death. The victim's choice not to have the blood transfusion, was not considered as breaking the causal link.
In a number of other cases, the victim's reaction was however assessed. The test of causation to be applied is whether [the victim's] reaction was within the range of responses which might be expected from a victim in his situation. If the reaction was "so daft to make it [the victim's] own voluntary act" the chain of causation is broken.43 Thus the agent is not expected to take a "daft" victim as he finds him. This principle applies only if the agent is unaware that his victim was so daft. Knowledge on the part of the agent would raise a presumption at law, that he should have foreseen the daft reaction. A failure to do so, would not affect the chain of causation.
Similarly at English law, an intervening act (forming part of the same transaction) performed by the agent, would not affect the chain of causation. So if the agent were to perform an act, which if otherwise performed by a third party, would break the chain of causation, the latter would remain unaffected. For example, D, having wounded P, visits him in hospital and accidentally infects him with smallpox of which he dies.44 This example, taken from Smith and Hogan, was also cited in an English case; Le Brun. It is however submitted, that a number of qualifications are perhaps required. The wound inflicted by the agent should be a significant and operative cause of the death. If this were not so, the infection would not be a contributory cause (konkawza), but the sole cause for the death. Under such circumstances, the victim's death would be purely accidental and no liability could be attributed to the agent.
Other complications arise, when death is caused by medical treatment of an injury. Smith and Hogan submit, that the following propositions at present represent the [English] law:
(i) Medical evidence is admissible to show that the medical treatment of a wound was the cause of death and that the wound itself was not. This is so whether or not the wound is mortal.
(ii) If a wound was an operating and substantial cause of death, [the agent] is guilty of homicide, however badly the wound was treated.
(iii) If a wound was not an operating and substantial cause of death (i.e., it was effectively healed) but P was killed by, e.g., the inadvertent administration of deadly poison by a nurse, the wrongful administration of terremycin, or the ill-treatment of a tracheotomy, D may or may not be guilty of homicide. The test we must now apply is the Cheshire independence/potency test.45 A better test, it is submitted, would be whether the treatment, or the manner of administering it, was so extraordinary as to be unforeseeable - which may be much the same thing as asking whether it was grossly negligent.46
It is submitted that the above principles, blend with the doctrine of homicide and causation at Maltese law. They should thus, serve as very useful guide-lines to the developing jurisprudence in this field of the Maltese Criminal Law.
Another important aspect of causation is dealt with in section 212 of the Criminal Code -
The provisions contained in the last preceding section shall also apply even though the offender did not intend to cause the death of any particular person, or by mistake or accident, shall have killed some person other than the person whom he intended to kill.
Even though the mens rea, and the actus reus do not coincide, (in the sense that the agent obtained a result which was different from the one he intended), or the agent did not have a specific victim in mind, he is still held liable. The principle behind this section is that if the agent, with the mens rea of a...(wilful homicide),...has caused the actus reus of the same,47 he is guilty.
Insofar as the material element of the offence is concerned, there are not many discrepancies between Maltese and English law. However, there are significant differences as regards the mental element. The position at Maltese law was clearly outlined in Repubblika ta' Malta v. Casaletto.48
...[S]kond il-ligi taghna fl-omicidju volontarju l-intenzjoni mhux trid tkun bilfors dik ta' qtil (animus necandi). Hu bizzejjed jekk l-intenzjoni kienet li jpoggi l-hajja ta' dak li jkun f'perikolu car. Meta l-intenzjoni hi li toqtol allura dik hija intenzjoni diretta. Meta l-itenzjoni hija li tpoggi l-hajja f'perikolu car dik hija intenzjoni posittiva indiretta...
Skond id-dottrina l-intenzjoni hija indiretta meta l-event kien semplicement konsegwenza possibbli ta' l-actus reus liema event jew ma kienx previst jew kien previst izda mhux mixtieq. Jekk tali event kien previst u minkejja dan l-actus reus kien mixtieq u volontarju allavolja l-konsegwenza ma kinitx mixtieqa, l-intenzjoni indiretta tissejjah posittiva. Jekk mill-banda l-ohra l-event possibbli ma kienx la mixtieq imma lanqas previst, l-intenzjoni indiretta tissejjah negattiva.
Carrara held that, homicide could either be doloso, o colposo, o preterintenzionale. Homicide is doloso, when there is the intent to kill. This intent could be either explicit or implicit. When the intent to kill is direct it is explicit. When the intent to kill is indeterminato, it is implicit. Nell'omicidio consumato l'animo di uccidere implicito equivale all'animo di uccidere esplicito limitativamente al fine di dichiararlo doloso.49 For purposes of punishment, the explicit intention to kill is tantamount to the implicit intention shown by the recklessness as to the possible consequences of one's acts. Carrara pointed out, that there is a very important distinction between the two forms of intent. The notion of attempt, can only be reconciled with the direct intent, but not with the positive indirect intent. Per attentare bisogna volere.50 This element is missing, when the intent is indirect. Mere foresight, does not suffice. The two forms of specific intent, mentioned in section 211(2); the intent to kill and the intent to put the victim's life in manifest jeopardy, correspond to Carrara' direct intent and positive indirect intent, respectively.
On the other hand, L'omicidio è colposo quando si è cagionata la morte di un uomo con un atto che non era diretto a lederne la persona; e dal quale potea prevedersi, ma non fu preveduto, che ne potesse conseguire un triste effetto.51 In the case of involuntary homicide, there has to be a balance between the degree of prevedibilità o prevenibilità and the degree of imprevedibilità o imprevenibilità, which is owed to casus. When the foresight of the event, was so difficile, così fuori dell'ordinario corso degli umani calcoli che la maggior parte degli uomini non vi avrebbe posto mente, si avranno i termini ontologici della colpa, ma sarà colpa tanto lieve che per gli effetti giuridici dovrà equipararsi al caso.52 The whole concept of liability in Criminal law, revolves around the premise that every body is liable for his own acts. From this it follows that a person cannot be held liable for something he did not do. [B]isogna che la uccisione involontaria dell'uomo proceda dalla mano dell'uomo.53 So if the death cannot be attributed to the agent; or using the reasoning employed above, the agent's act was not a significant and operative cause of the death, then the agent cannot incur liability.
The position at Maltese law is regulated by section 225 of the Criminal Code:
Whosoever, through imprudence, carelessness, unskilfulness in his art or profession, or non-observance of regulations, causes the death of any person, shall, on conviction, be liable to imprisonment for a term not exceeding two years or to a fine (multa) not exceeding two thousand liri.
In Pol. v. Perit Louis Portelli,54 it was held that the degree of care required by section 225 is that type of conduct, effettivament adoperata ma' dik ta' persuna li s-sapienza rumana identifikat mal-"bonus pater familias"...persuna ta'intelligenza, diligenza u sensibilità normali. On the other hand, a man or a woman who practises a profession is bound to exercise the care and skill of an ordinary competent practitioner in that capacity.55 Jekk jiehu zball fil-professjoni tieghu, hu ma jirrispondix ghad-danni, jekk l-izball ma jkunx grossolan, u jekk tkun giet minnu adoperata d-diligenza ordinarja li trid il-ligi. Huwa mhux tenut ghad-danni rizultanti minn zball professjonali, ammenokkè dan l-izball ma kienx grossolan, u ammenokkè l-htija ma tkunx tista' tigi lilu addebitata minhabba nuqqas ta' prudenza u attenzjoni ta' missier tajjeb tal-familja.
The third category of homicide recognised by Carrara, was l'omicidio preterintenzionale. This form of homicide, presuppone per necessità assoluta l'animo di nuocere alla persona di colui che si è ucciso; e questo è ciò che lo stacca dalla famiglia degli omicidii meramente colposi, e lo mantiene nella famiglia degli omicidii dolosi. Ma presuppone che la morte oltre a non essersi voluta, non fosse neppure preveduto, benchè potesse prevedersi.56 This form of homicide, is classified by Carrara as being between the omicidio doloso and the omicidio colposo. The agent has the animus nocendi, but not the animus necandi, as he does not even foresee the possibility of killing the passive subject. This offence does not fall exactly within the parameters of the direct intent or of the indirect intent. Vi è la intenzione diretta quanto all'offesa. Vi è la intenzione indiretta negativa quanto alla strage. Non vi è mai la intenzione indiretta positiva; nè quanto all'offesa, perchè è diretta (voluta); nè quanto alla strage, perchè è negativa (non preveduta).57
Carrara considered this offence as particularly similar to the offence of ferimento susseguito da morte. However Carrara noticed that there was a difference between the two offences. Il titolo di omicidio preterintenzionale, e il titolo di ferimento susseguito da morte differiscono in questo: che l'omicidio preterintenzionale suppone che il fatto del delinquente sia stato causa immediata della morte: il ferimento susseguito da morte suppone invece che il fatto del colpevole sia stato della morte causa occasionale, o mediata.58 Thus he considered the actus reus of an omicidio preterintenzionale, as being more serious than that of ferimento susseguito da morte. This slight imbalance, is according to Carrara, counter-balanced by the fact that the formal element of the offence of grievous bodily harm followed by death, does not necessarily exclude the desire and the foresight of the death of the passive subject.
However, this distinction does not seem to apply within the context of the Maltese Criminal code. Section 214 of the Maltese Criminal code, excludes explicitly the animus necandi, from the notion of bodily harm. This section states:
Whosoever, without intent to kill or to put the life of any person in manifest jeopardy, shall cause harm to the body or health of another person, or shall cause to such other person a mental derangement, shall be guilty of bodily harm.
Thus it seems that the notion of grievous bodily harm followed by death, is closer to Carrara's omicidio preterintenzionale, rather than to what he understood as ferimento susseguito da morte. In fact at Maltese law, grievous bodily harm followed by death, is considered as meaning omicidio preterintenzionale. Professor Mamo, considered grievous bodily harm followed by death as a homicide "praeter intentionem".59 He seemed to have ignored the distinction created by Carrara.
At English law, the mens rea for murder is Coke's, malice aforethought. This consists in the intention to kill any person or to cause grievous bodily harm to any person. The term, malice aforethought, might be a bit confusing. [T]he 'malice' may have in it nothing really malicious; and need never be really 'aforethought'.60 Archbold, refrains from referring to the term. He refers specifically to the intent to kill or to cause grievous bodily harm. The term grievous bodily harm, was defined in R. v. Cunningham,61 as meaning an injury which is really serious but not necessarily dangerous to life.
Malice aforethought, distinguishes murder from manslaughter. Murder is unlawful homicide with malice aforethought. Manslaughter is an unlawful homicide without malice aforethought.62 If the agent has the intent to kill or to cause a grievous bodily harm, and there is a causal link between his act and the death of the passive subject, he would be guilty of murder. At common law, all unlawful homicides which are not murder are manslaughter.63 This offence, could be sub-divided into two main groups; voluntary and involuntary manslaughter. In the former type, the agent may have malice aforethought, but the homicide is not treated as a murder owing to the presence of one (or possibly more) of three elements. Voluntary manslaughter, could occur: (i) when the agent acts under provocation; (ii) when the agent is suffering from diminished responsibility and (iii) when the agent kills in pursuance of a suicide pact.
Involuntary manslaughter, includes all varieties of homicide which are unlawful at common law but committed without malice aforethought.64 This form of manslaughter, has created a number of problems, owing to the fact that it cannot be easily defined. Smith and Hogan however, recognised two main forms of involuntary manslaughter: (i) manslaughter by an unlawful and dangerous act; (ii) manslaughter by recklessness, or possibly, gross negligence.
According to section 211(2), it is not enough for the agent to have the specific intent to kill or to put the life of the passive subject in manifest jeopardy. This section states that, A person shall be guilty of wilful homicide if, maliciously... The agent must first and foremost have a malicious intent, in other words the intent to commit something which he knows to be against the law. It is possible for a person to kill another person, with the required specific intent and yet incur no liability if the homicide is justified or be awarded a reduced punishment when the homicide is excusable. The [English] common law of homicide [too], distinguished between justification and excuse. [At English law], [a]n act is justified when we positively approve of it. It is merely excused when we disapprove of it but think it is not right to treat it as a crime.65 The position at Maltese law seems to be quite similar. There is however an apparent difference, as those homicides which are classified as excusable, would afford only a reduction in punishment.
Defences are in the wide sense of two main sorts. Some may be called exculpatory, because if successful they show that the defendant was not guilty of the offence charged at the time when he acted. Other defences are not exculpatory in this sense, although all defences if successful result in an acquittal on the charge in question... [At English law], [e]xculpatory defences may again be of two kinds: justifications and excuses.66
Manzini held that, [p]erchè un fatto possa costituire reato è sempre necessario che sia antigiuridico, e quindi, perchè l'uccisione di una persona costituisca giuridicamente omicidio, essa deve presentare anzitutto il carattere della illegittimità obiettiva.67 Section 223 of the Criminal code, states that -
No offence is committed when a homicide or a bodily harm is ordered or permitted by law or by a lawful authority, or is imposed by actual necessity either in lawful self-defence or in the lawful defence of another person.
A homicide which occurs in the circumstances specified in section 223, is considered at law as lacking il carattere della illegittimità obiettiva. Manzini held that there was a distinction between the two forms of justifiable homicide, as mentioned in section 223. He considered that a homicide, was legitimate, cioè conforme al diritto, only when it is authorised or permitted by law or by a lawful authority. Those forms of homicide, which are not permitted or authorised by law or by a lawful authority, but imposed by the state of necessity specified in section 223, non sono propriamente legittime, e quindi astrattamente, costituiscono omicidi, ancorchè, per considerazioni di politica penale, non siano punibili nel caso concreto.68
English law, has distinguished between justifiable an excusable homicide, in the same way as Manzini. Archbold, said that a justifiable homicide occurred; (i) where the proper officer executes a prisoner in strict conformity with its sentence, and (ii) where the killer is otherwise acting in pursuance of a duty to prevent crime or arrest of offenders etc.69 The latter circumstance is currently regulated, by section 3 of the Criminal Law Act 1967. According to subsection 1 of this section
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in the effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
Homicide in lawful self-defence, is on the other hand classified as excusable, at English law. This is where a person uses no more force than is reasonably necessary to defend himself, or his spouse, parent, child, master or servant.70 This could also apply to the defence of one's own house.
Under the Maltese Criminal Code, a justifiable homicide is not considered as being an offence and is not punishable. An excusable homicide, affords a reduction in punishment. The difference between the Maltese and English systems is only formal. Those homicides which are classified as justifiable and those which are classified as excusable at English law, are all grouped under section 223 of the Maltese Criminal Code, dealing with justifiable homicides. In both systems these forms of homicide, are not punishable. Those forms of homicide which are classified as excusable under Maltese law, would at English just reduce the conviction to manslaughter.
[A] homicide or a bodily harm [that] is ordered or permitted by law or by a lawful authority, should be perhaps considered as the justifiable homicide, par excellence. [These] homicides classed as strictly justifiable have never involved any legal penalty... In them the act is either enjoined or permitted by the law...71
The mere permission or order by the law or by a lawful authority, do not authorise a person to kill another in any way he likes. [L']uccisione è legittima soltanto quando avvenga nelle prescritte condizioni di tempo e di modo.72 Thus a person who was not authorised by law to perform the justifiable homicide, even though the passive subject was condemned to death, would still be guilty of homicide. Similarly, the person entitled to perform the homicide, would still be liable for wilful homicide, if he kills the passive subject before the sentence can be executed or in a different mode from that prescribed by the law or by the lawful authority. According to Manzini, this could occur even where the homicide is executed in a harsher way than that prescribed by law.
Homicide in lawful self-defence, was classified by Manzini as an imperfect form of justifiable homicide. The main principle behind this justification is that, [c]on l'imporre che l'innocente si lasci uccidere, si imporrebbe un disordine, e si andrebbe così a ritroso della legge di natura che è la unica base del giure penale umano.73 Carrara considered the protection of one's own life from an illegitimate aggression, as a right. The principles of this defence at Maltese law were summarised in Pol. v. Salvu Psaila,74 -
Il-gustifikazzjoni tal-legittima difiza timplika illi:- (1) Id-deni li jigi repullit mill-agenti jkun ingust fil-kawza tiegu u l-attakk ta' l-assalitur ikun ingust u illegittimu u ghalhekk dana jrid jigi rigwardad fis-sens intrinseku u mill-impressjoni soggettiva li jircievi l-vjolentat eppure min bl-imgieba u kontenju tieghu, ikun kawza immedjata qabel ma jinstab fil-periklu ma jikkompetilux li jkollu l-impunità shiha; (2) Id-deni jrid ikun attwali u prezenti fil-waqt tar-reazzjoni u fl-ahharnett li (3) id-deni jkun inevitabili l-ghaliex bla ma jkun hemm in-necessità tad-difiza ir-reazzjoni ta' min igib 'il quddiem il-"feci sed jure feci" ma jistax li jkun ipprova l-legitimità ta' l-att "per se" antiguridiku tieghu. Jinghad mbaghad li huwa accertat di-dottrina l-deni imminaccjat u l-perikolu sovrastanti jridu jkunu ta' gravità u bejniethom (deni minn banda u perikolu minn nahha l-ohra) il-fatt tar-reazzjoni estrinsikata biex l-istess deni jigi evitat irid ikun hemm proporzjonalità.
It is evident, that the Maltese courts have adopted Carrara's entire theory on self-defence. The latter stressed that, in tutti i casi necessario per regola assoluta, che nel male minacciato si trovino questi tre requisiti - 1º ingiustizia - 2º gravità - 3º inevitabilità.75
The first requirement would be missing, if the harm the agent tries to avoid is a legitimate harm. Thus a convict who kills his executioner, could not be able to benefit from this justification. This requirement could also be lacking, quando sebbene il male che si minaccia ecceda i limiti della legittimità, vi fu ingiustizia per parte del minacciato.76 In Pol. v. Maria Agius,77 the court with reference to an instance of excess in legitimate defence, (the argument is also applicable to legitimate defence proper) held, that ...ma tistax tigi nvokata din id-difiza meta min jinvokaha kien huwa li aggredixxa l-ewwel.
Carrara held that the gravity of the harm, should be assessed from the point of view of the party who was going to suffer it; nella ragionata opinione dell'aggredito medesimo.78 Carrara considered that only a harm in relation to life, the body or chastity, could be considered "grave". He equated the concept of gravità with that of irreparabilità. He thus excluded those harms which relate to property or to reputation, which do not cause un danno irreparabile. Section 224 of the Maltese Criminal Code, indicates instances of actual necessity.
Cases of actual necessity of lawful defence shall include the following:
(a) where the homicide or bodily harm is committed in the act of repelling, during the night-time, the scaling or breaking of enclosures, walls, or the entrance doors of any house or inhabited apartment, or of the appurtenances thereof having a direct or indirect communication with such house or apartment;
(b) where the homicide or bodily harm is committed in the act of defence against any person committing theft or plunder, with violence, or attempting to commit such theft or plunder;
(c) where the homicide or bodily harm is imposed by actual necessity of the defence of one's own chastity or of the chastity of another person.
At first, it may seem that paragraphs (a) and (b) of this section, afford a justification in the case of a homicide committed in the defence of property. However, it is quite evident, that the law is looking at the situation from the, ragionata opinione dell'aggredito, as suggested by Carrara himself. Paragraph (a), refers to a homicide committed, in the act of repelling, during the night-time... and paragraph (b), refers to a defence against, Theft or plunder (or attempted theft or plunder) with violence. It is not the scaling or the theft or plunder, in themselves which afford the justification, but the situation, as in paragraph (a), or the way in which the offence is carried out, as in paragraph (b). In fact, a homicide carried out in repelling, during the day-time, the scaling... would only afford an excuse under section 227(a) of the Criminal Code. The law has presumed that at night-time, the situation would seem much more serious. It is this factor alone which has distinguished between the two situations, affording a justification in one and a mere excuse in the other.
The third paragraph of section 224, refers to the defence of one's own chastity or a third party's chastity. Carrara held, that it is justifiable to kill in defence of another's chastity only where the party whose chastity is in danger, is, innocente, ingiustamente aggredito, e impotente a salvarsi.79
The harm, must be "inevitabile". If it can be avoided, then there can be no justification for a homicide. In Pol v. Emily Zarb,80 it was held that, [f]ost l-elementi li huma mehtiega biex tigi akkordata l-iskriminanti tal-legittima difiza hemm il-fattur tal-inevitabbilità; u minghajr il-konkors ta' dan il-fattur ma tistax tinghata ta' dik l-iskuzanti. In Pol v. Philip Muscat,81 the court said that, this defence is not available to a person who not only failed to avoid the harm, but actually caused it himself. Similarly in Pol. v. Toni Micallef,82 it was held that, r-rekwizit ta' l-inevitabilità jirrekjedi illi l-hsara ghall-persuna ma setghetx tigi evitata hlief bir-reazzjoni u l-forza; b'mod illi jekk kien hemm xi mezz biex wiehed jehles mill-pressjoni u l-vjolenza xort' ohra milli bir-reazzjoni u l-forza, allura m'hemmx legittima difiza. Fost dawn il-mezzi hemm anki dak li wiehed jahrab. Jekk wiehed seta' jevita l-hsara billi jahrab, u minflok huwa rreagixxa u kkaguna hsara lill-aggressur, huwa ma jimmeritax il-gustifikazzjoni tal-legittima difiza, imma jisthoqqlu biss l-iskuzanti tal-provokazzjoni.
The degree of inevitabilità, can be assessed through three distinct criteria - 1º che sia improvviso - 2º che sia presente - 3º che sia assoluto.83 If the danger was foreseen, there can be no justification for having faced it. La necessità in cui ci trovammo ebbe causa da noi stessi, e questa elegemmo nella pienezza del nostro libero arbitrio.84 However, this element is not excluded by a mere suspicion. It is only a firm knowledge of what is going to happen, which will exclude the element of inevitabilità.
The danger must be presente. If the danger has already passed, any reaction could be possibly classified as a revenge. It is submitted that this depends on the interval between the harm suffered and the reaction to it. Following the principle vim vi repellere licet, a reaction which is confestim (immediate) should not be considered as a revenge. On the other hand, an ex intervallo reaction, is usually held to be a revenge.
Carrara considered that when the danger is foreseen, it is always possible to avoid it. In Pol. v. Carbonaro,85 the court adopted this reasoning and held that, [i]l diritto di difesa non può esercitarsi per anticipazione, ma dev'essere il risultamento della necessità attuale in cui è l'uomo.
The third criterion is that, the danger must be assoluto. The homicide of an assailant, could only be justified when there is no other alternative. Carrara considered these alternatives, si riducono alla preghiera, all'acclamazione, alla fuga. These means must have been objectively valid. It is also important that the person who was about to suffer the harm, saw this validity. If either of these two elements is lacking, the harm will be considered as assoluto. Carrara considered, that these situations cannot be assessed from an objective point of view. Il moderame deve sempre misurarsi secondo le ragionevoli opinioni di colui che si vide minacciato della vita; non con ciò che con freddo calcolo e maturo esame si è conosciuto dal giudice.86 If the party in danger assessed badly whether the danger was assoluto, but was in good faith and thus agì con la coscienza di fare atto legittimo...non può rimproverarsi dolo giammai.87 [A] person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.88
Whenever our courts have attempted to list the elements of legitimate self-defence, they have always stressed that, [i]r-rekwizit tal-gravità jezigi certu proporzjoni bejn l-offiza u r-reazzjoni.89 A similar principle is also found at English law. The general principle, however, is that the law allows such force to be used as is reasonable in the circumstances of the particular case: and, for the purposes of offences requiring mens rea, what is reasonable to be judged in the light of the circumstances as the accused believed them to be, whether reasonably or not.90 In the passage just quoted, the term mens rea, does not refer to the mental element in a general way. It refers literally to those crimes where a "guilty mind", is required. It would however be possible in an offence which can be committed through gross negligence or recklessness that a grossly negligent or reckless mistake would not excuse the offender, at English Law.
There could be certain instances where the person in danger, exceeds the limits imposed by necessity. Section 227(d) of the Criminal Code, deals with this particular instance. In such circumstances, the homicide would no longer be justifiable but merely excusable. According to this section, a wilful homicide shall be excusable -
(d) where it is committed by any person who, acting under the circumstances mentioned in section 223, shall have exceeded the limits imposed by law, by the authority or by necessity:
Provided, moreover, that any such excess shall not be liable to punishment if it is due to the person being taken unawares, or to fear or fright.
In Pol. v. Grazio Mallia,91 it was stated that it is, necessario che vi sia stato il concorso di questi elementi per lo eccesso di legittima difesa e cioè:
. Che l'imputato abbia voluto respingere una violenza contro di se;
2. Che tale violenza sia stata attuale;
3. Che sia stata ingiusta;
4. Che vi sia stata necessità della difesa;
5 E che egli mosso dallo spavento e dal timore abbia ecceduto nei limiti di tale difesa.
From the above principles, it appears that the excuse afforded in section 227(d) would only be available in those circumstances where a legitimate self-defence could be pleaded, were it not for the excess of the limits imposed by the necessity. In Pol. v. Maria Agius,92 it was held that, Il-minoranti tal-eccess tal-legittima difiza tippostula tabilfors l-istat tal-legittima difiza, u kwindi ...ma tistax tigi nvokata din id-difiza meta min jinvokaha kien huwa li aggredixxa l-ewwel.
Carrara distinguished between a simple eccesso di difesa and an eccesso di moderame. The first instance is, sempre configura il dolo;93 in the second there is always colpa. Carrara considered that an eccesso di moderame, could occasionally even be left unpunished. Section 227(d) affords a mitigation in punishment, every time a person exceeds the limits imposed by the necessity of defending himself, irrespective of any dolo on his part. If however the agent exceeds the limits of necessity, because he is taken unawares, or [because of] fear or fright, the law presumes that this would be an instance of eccesso di moderame, and does not provide for any punishment.
Section 227(d), does not refer only to an excess in the case of actual necessity. An excuse is also available when a homicide is ordered or permitted by law or by a lawful authority (according to section 223), but the agent exceeded the limits imposed by law, [or] by the authority. Even in this case, the law seems to take into consideration that the killing would have been fully legitimate, were it not for the excess. The agent is not considered to deserve the full punishment. Furthermore, the proviso in section 227(d), referring to the person being taken unawares, or to fear or fright, applies also to these two forms of excess.
Section 227 affords three other forms of excuses to homicide.
Wilful homicide shall be excusable -
(a) where it is provoked by a grievous bodily harm, or by any crime whatsoever against the person, punishable with more than one year's imprisonment;
(b) where it is committed in repelling, during the day-time, the scaling or breaking of enclosures, walls, or the entrance of any house or inhabited apartment, or the appurtenances thereof having a direct or an indirect communication with such house or apartment;
(c) where it is committed by any person acting under the first transport of a sudden passion or mental excitement in consequence of which he is, in the act of committing the crime, incapable of reflecting;
the offender shall be deemed to be incapable of reflecting whenever in cases of provocation, the homicide be in fact attributable to heat of blood and not to a deliberate intention to kill or to cause a serious injury to the person, and the cause be such as would, in persons of ordinary temperament, commonly produce the effect or rendering them incapable of reflecting on the consequences of the crime;
The excuse contained in paragraph (b), has already been considered in connection with the justification under section 224(a).
Carrara considered that a violence exercised over the agent's will, even by a mere internal force, affects the spontaneità della determinazione.94 This reduces the gravità politica and the gravità morale of the offence, thus reducing the agent's responsibility. It is essential that the impulse which made the agent commit the homicide, rappresenti una coazione sulla facoltà volitiva.95 Under such circumstances, the agent's actions may be excused. Carrara distinguished between, passioni cieche e passioni ragionatrici.96 Only the first affords an excuse, as the agent is not in a position to reflect. On the other hand the second form, sharpens the agent's rational faculties. It may occur that the two forms of passion, could arise from identical circumstances. They differ, in the way they affect the agent. The passioni cieche e passioni ragionatrici, could be distinguished since [l]e passioni mosse dall'aspetto di un bene sono sempre ragionatrici. Quelle eccitate dall'aspetto di un male divengono cieche.97
Carrara held that there were two possible reactions to a harm; ira and timore. Anger arises after having suffered a harm. Fear arises when a harm is foreseen. An excuse will be available, only when the agent's reaction was conditioned by these feelings. Carrara considered that fear should have afforded a heavier mitigation, owing to the fact that it is more difficult to control.
Nel linguaggio forense l'ira eccitata da un male recato alla nostra persona dicesi costituire la scusa della provocazione.98 Article 62(2) of the Italian Penal Code (1930) defined the reaction to a provocation as l'aver reagito in stato di ira, determinato da un fatto ingiusto altrui. The Maltese Criminal Code, deals with provocation as an excuse to homicide, in paragraphs (a) and (c) of section 227.
The classic English Common Law definition of provocation is, ...some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.99
The common law rule was modified by section 3 of the Homicide Act 1957:
Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.
Manzini held that, this excuse is based on a riconoscimento giuridico d'un fenomeno fisio-psicologico, mediante l'attribuzione di determinate conseguenze di diritto ai più veementi stati emotivi.100 According to Manzini, even though man has noticeably diminished the instinct's influence on his actions, there are still latent forces which could occasionally reappear and determine a person's actions. This is a characteristic which pertains to almost every individual. The law cannot conceive the uomo medio, as being better than what he really is.
Certain impulses could force a person to react instinctively, without the opportunity to reflect. This reduces the degree of control which the will usually enjoys over human actions. [L]a scusa della provocazione, lasciando inalterata la imputabilità, diminuisce soltanto la responsabilità, cioè le conseguenze dell'imputabilità: la pena.101
[G]li estremi di una passione per fornire la scusa debbono essere appunto la violenza, e la istantaneità.102 I criteri misuratori della scusa si desumono dal combinato calcolo dei modi, del tempo, e delle cagioni: si desumono cioè: - 1º dalla gravità del male patito: - 2º dallo intervallo più o meno lungo interceduto fra la offesa sofferta e la reazione: - 3º dalla giustizia maggiore o minore della causa eccitatrice dell'ira.103 If the impulse provoking the agent's reaction is not strong enough or is not instantaneous to his reaction, it is presumed that the agent possessed his full rational capabilities upon reacting. In Pol. v. Angelo Gialanzè,104 it was held that, rekwizit indispensabbli ghal din l-iskuzanti hi l-immedjatezza ta' passjoni istantanea; ghax, apparti konsiderazzjonijiet ohra, ikun jonqos il-fatt kollegatur tal-mument mal-incident li fuqu hi bazata l-provokazzjoni. After a certain time-lapse, anger could become hatred. The latter does not affect the faculty of reason and as such does not afford any excuse.
The element of instantaneità, is also important within the context of fear. When a harm is remote, the fear to which it may give rise, would not in normal circumstances excuse the reaction. E quindi la reazione in stato d'ira esclude necessariamente il calcolo, il proposito, la riflessione presente, ed ogni altro processo psichico incompatibile con la nozione di emozione stenica (d'impeto).105 Manzini did not exclude the possibility, that a person could be provoked to react in a particular way, by his own memories. This could mean that there could be a considerable interval between the provocation and the reaction. He also refuted Carrara's conclusion that provocation cannot operate so as to excuse a homicide, when the agent has time to reflect. Smith and Hogan, point out that at English law, "cooling time", is not a matter of law, but a question of fact. Its relevance, should be assessed on a case-to-case basis and all the circumstances of the case should be taken into consideration. The position under Maltese law, is totally different. Section 235 of the Maltese Criminal Code, states that [t]he provocations referred to in sections 227 and 230 shall not benefit the offender, unless they shall have taken place at the time of the act in excuse whereof they are pleaded. This is one of the safeguards to, l-principju li wiehed ghandu l-obligu li jikkontrolla l-passjonijiet tieghu, mentioned in Pol. v. Philip Muscat.106
The agent's reaction, must be (i) improvvisa and (ii) (at least apparently) just. If either of these two elements are missing, the reaction would not be excusable. Similarly section 227(c), requires that the homicide must be committed by the agent when acting under the first transport of a sudden passion or mental excitement. [I]t is the loss of control and not the provocation which must be "sudden"... The fact that provocative behaviour has continued over a long period does not rule out the defence, provided it has culminated in a sudden explosion.107 The act which provokes the reaction, must be unjust. Section 227(a) specifies that the homicide must be provoked by a grievous bodily harm, or by any crime whatsoever against the person, punishable with more than one year's imprisonment. Section 227(c) specifies that in cases of provocation...the cause [must] be such as would, in persons of ordinary temperament, commonly produce the effect or rendering them incapable of reflecting on the consequences of the crime. Even though no offence is specified, it is implicitly required that the cause be unjust. This seems to be supported by section 229. This section excludes the excuse when the passion is provoked by (i) a lawful correction; (ii) a lawful performance of a duty by a public officer and (iii) where the offender has either sought provocation as a pretext or even endeavoured to kill the passive subject before he was provoked. These three instances, were also classified in Pol. v. Philip Muscat, as safeguards to, l-principju li wiehed ghandu l-obligu li jikkontrolla l-passjonijiet tieghu.
Manzini held that [l]a provocazione è una circostanza che ha fondamento subiettivo ed obiettivo ad un tempo.108 Within the English legal system, the Homicide Act 1957, introduced a dual test with an objective and a subjective criterion. The subjective test verifies whether the defendant was provoked to lose his self-control. The objective test, assesses whether the provocation was enough to make a reasonable man behave like the defendant.
The third safeguard, listed in Pol. v. Philip Muscat, is the proviso to paragraph (c) of section 227. This proviso, gives a subjective and an objective test, which are very similar to those introduced by the Homicide Act 1957. It is submitted that, even though paragraph (a) of section 227 does not refer explicitly to an objective or a subjective test, the law presumes juris et de jure, that the two specific forms of provocation would certainly satisfy an objective test (as mentioned in the proviso) and should thus excuse the agent's reaction. Furthermore paragraph (a), presumes a subjective test as the accused must be provoked. Carrara stated, non ammetto però che al solo dolore fisico debba restringersi la genesi della scusa.109
Paragraph (c) goes beyond the mere physical aspect contemplated in paragraph (a), as the means by which the agent is provoked are not mentioned. The provocation must be such, as to render the agent incapable of reflecting. From the subjective point of view, the offender shall be deemed to be incapable of reflecting whenever, in cases of provocation, the homicide be in fact attributable to heat of blood and not to a deliberate intention to kill or to cause a serious injury to the person. The objective test is that, the cause be such as would, in persons of ordinary temperament, commonly produce the effect of rendering them incapable of reflecting on the consequences of the crime. If both tests are satisfied, the agent is presumed to have been incapable of reflecting at the moment of the commission of the offence. If the homicide, is [then] committed by any person acting under the first transport of a sudden passion or mental excitement in consequence of which he is, in the act of committing the crime, incapable of reflecting, then it would be excusable.
The current position at English law, is that the reasonable man must be endowed by the jury with the age, sex and other personal characteristics of the accused, whether normal or abnormal.110 The characteristic must be something definite and of sufficient significance to make the offender a different person from the ordinary run of mankind, and have also a sufficient degree of permanence to warrant its being regarded as something constituting on the part of the individual's character and personality.111 The Maltese courts, seemed to have adopted a similar approach. In Frangisk Sciberras v. Stella Cannataci,112 it was stated -
Il-principju aktar korrett jidher dak illi ghandhom jigu ezaminati c-cirkustanzi partikulari ta' kull kaz; u biex jigi stabilit jekk hemmx ir-rekwizit tas-serjetà, wiehed ghandu jiehu in kalkolu l-fatt ta' l-ecittament jew tal-provokazzjoni flimkien mac-cirkustanzi l-ohra.
Our courts have thus applied a test which is simultaneously objective and subjective. They have assessed the degree of provocation on a case-by-case basis, but have also kept in mind an objective criterion. In Pol. v. Angelo Scicluna,113 the court with reference to mistake of fact within the context of provocation (the argument however applies to the whole doctrine of provocation), adopted this double test. The court stated -
Tkun haga ferm perikoluza ghall-individwi u ghas-socjetà kieku kellha tigi ammessa l-iskuzanti tal-passjoni ghal kull kredenza falza, u li min jikkaguna offiza fuq il-persuna ta' haddiehor ikun jista' jinvoka d-diminwenti tal-passjoni u jallega li huwa agixxa taht eccitament, ghaliex haseb li dik il-persuna l-ohra ghamlitlu xi tort. Jista', certament, ikun hemm kazijiet eccezzjonali fejn l-iskuzanti tista' tkun talvolta ammessa f'kaz ta' kredenza zbaljata; imma jehtieg li din il-kredenza tkun bazata fuq ragunijiet gravi, valutabbli "caso per caso", u tali li l-bniedem ta' temperament normali u ekwilibrat kien ukoll jitqarraq bihom, u fl-assenza ta' dawn ir-ragunijiet gravi, l-iskuzanti tal-passjoni ghandha tigi eskluza.
The adoption of the subjective element in the objective assessment of the agent's act, stands out in Pol. v. Angelo Gialanzè -
Tista' tirrikorri l-provokazzjoni favur l-imputat, konsistenti fil-kredenza soggettiva tieghu, billi jista' jkun hemm kazijiet eccezjonali li fihom l-imputat ikollu ragunijiet gravi biex jirritjeni li jkun sar xi fatt provokatur ghad-dannu tieghu, u li hu ghalhekk ikun intitolat ghall-iskuzanti. Imma biex jista' jkun kunsidrat il-punt tal-iskuza, jehtieg li jigu pruvati l-fatti mill-imputat allegati bhala bazi tal-iskuzanti.
The subjective test (whether the accused was in fact provoked), must be answered before the objective test. If a person kills another without losing his self-control, in circumstances which would have made a person of ordinary temperament incapable of reflecting, the homicide would not be excusable. It must first be established whether the accused lost his self-control. If the answer to this question is yes, then his behaviour must be assessed objectively.
The consideration of the elements of the case, becomes particularly important when considering mistake of fact, within the context of provocation. English authorities suggest that, where D is provoked partly as the result of a mistake of fact he is entitled to be treated as if the facts were as he mistakenly took them to be.114 In Pol. v. Angelo Scicluna, (quoted above) the court adopted a careful approach. It stated that there could be exceptional cases where, a mistake of fact could still afford the excuse of provocation. It is however necessary that this mistake is based on ragunijiet gravi, and so not every mere mistake of fact will be accepted by the courts.
The provocation must be caused by a person and must refer to another person. Manzini excluded the excuse of provocation when A killed B, because B's dog had previously bitten A. The wording in section 227 seems to confirm Manzini's view. In paragraph (a), the provocation must be carried out by means of, a grievous bodily harm, or by any crime whatsoever against the person, punishable with more than one year's imprisonment. Only a person could be found liable for a criminal offence. In paragraph (c), the law provides the objective test of the, persons of ordinary temperament. This would seem to exclude particularly strange (or perhaps daft) reactions, as illustrated in the example above. At English law, [m]ere circumstances, however provocative, do not constitute a defence to murder.115
The common law definition, required that the dead man provoked the accused and that the latter killed the former. However, section 3 of the Homicide Act 1957, amended the common law position. It did not impose such restrictions. Thus the accused could be provoked by any third party and he could kill any other third party, not just the person who provoked him. The only questions that must be answered, are those of the dual test. The wording of paragraphs (a) and (c) of section 227 of the Maltese Criminal Code, does not impose any such limitation either. However, the agent's reaction must still pass the objective test. If it would have been reasonable for a person of ordinary temperament to react in the way the agent did, the act would be excusable.
The agent must not provoke the incident himself. In Pol. v. Benjamin Curmi,116 the court stated that, [m]eta ikun il-kagun ta' incident billi jipprovokah huwa stess, u f'dan l-incident huwa jikkaguna offizi lil min jirreagixxi kontra tieghu, ma jistax jitlob a favur tieghu l-iskuza tal-provokazzjoni jew ta' agitazzjoni tal-mohh. Similarly in Pol. v. Philip Muscat, it was held that
L-iskuzanti tal-provokazzjoni ma tistax tinghata semplicement ghax l-imputat, fil-waqt tad-delitt, kien agitat; imma jehtieg li din l-agitazzjoni tkun giet prodotta minn cirkustanzi tali li jintitolawha ghall-indulgenza tal-ligi. U ghalhekk il-ligi taghna, fil-waqt li minn naha wahda tammetti l-provokazzjoni, minn naha l-ohra tirrikonoxxi illi din il-minoranti ghandha tkun limitata b'mod li ma ghandiex tmur kontra l-principju li wiehed ghandu l-obligu li jikkontrolla l-passjonijiet tieghu.
Fost ir-restrizzjonijiet tal-iskuzanti tal-provokazzjoni hemm anki dik illi min ikun qed jitlob dan il-beneficcju ma jkunx hu stess il-provokatur; u ghalhekk, min f'kollutazzjoni jikkaguna feriti lil haddiehor ma jistax jitlob l-iskuzanti tal-passjoni, ma jistax jinvoka l-"calor rixæ", jekk il-kollutazzjoni pprovokaha hu stess.
Section 227(c) requires the agent to be incapable of reflecting and his reaction must be the result of the first transport of a sudden passion or mental excitement in consequence of which he is, in the act of committing the crime, incapable of reflecting.
Besides provocazione Carrara recognised another stimulus which could result in a loss of the faculty of reflecting: giusto dolore.
Il principio radicale della scusa è lo identico; perchè sempre consiste nelle alterate condizioni psicologiche di chi agisce sotto l'impeto di grave commozione. Ma varia la materialità della causa eccitatrice dell'animo alla subitanea commozione, avvengachè non si consideri come causa dello sdegno e della reazione un'offesa recata alla propria persona....Tutte le volte che la passione non è destata da offesa recata alla nostra propria personalità, ma cade sopra qualche oggetto di nostra legittima affezione, altrettante volte alla formula della provocazione sottentra la formula delgiusto dolore. Esso si esemplifica specialmente: - 1° nella reazione contro una offesa recata a persona a noi cara: - 2° nel proprietario che uccida il ladro colto in flagrante, o commuovasi per cagione di un danno recato in qualsiasi forma alla sua proprietà: - 3° nel marito o nel padre che uccida gli adulteri.117
The Maltese Criminal Code, does not refer to giusto dolore, nor does it afford any specific excuse for any of the three above-mentioned cases. Formerly the Criminal Code, dealt specifically the adultery case. This excuse was repealed in 1990. This omission does not entail that if an agent, were to act under the first transport of a sudden passion or mental excitement in consequence of which he is, in the act of committing the crime, incapable of reflecting; not because of a provocazione but because of giusto dolore, the homicide would not be excusable under section 227(c). This is suggested by the very fact that [i]l principio radicale della scusa è lo identico. Furthermore, Professor Mamo commenting on the excuse in the adultery case, held that the law dealt with this heading specifically, because it wanted to afford a greater mitigation. Otherwise, this special excuse or extenuation might well have been comprised in the general excuse of instantaneous passion or provocation.118
Finally, it could be argued that the English classification of what amounts to a justifiable and an excusable homicide, is more precise than the Maltese classification. The difference seems to be owed to the fact that only those homicides authorised by law, are considered to be justifiable at English law, whereas those homicides termed as excusable under Maltese law, fall under the English notion of voluntary manslaughter. An attempt to alter the Maltese classification, would require the introduction of a notion similar to the latter. This would in turn alter several other concepts, which are by now, well established under Maltese law. When considering that this inaccuracy is negligible in practice, it would seem that a re-classification would be rather pointless.
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Manzini, Trattato di Diritto penale italiano, Vol VIII, p. 7.
2 Carrara, Programma del Corso di Diritto Criminale, Parte Speciale Vol I p. 67.
3 op.cit p. 53.
4 op.cit p. 60.
5 3 Inst 47.
6 Carrara, op. cit., Parte Speciale Vol I p. 60.
7 Smith & Hogan, Criminal Law, 7th edition, p. 327.
8 Carrara, op. cit., Parte Speciale Vol I p. 60.
9 Manzini, op.cit., p. 9.
0 ibid.
1 Smith & Hogan, op, cit., p. 329.
2 Smith & Hogan, op, cit., p. 328.
3 (1834) 6 C & P 349 at 350.
4 [1991] 1 QB 587, [1991] 1 All ER 801, QBD.
5 Manzini, op. cit., p. 9
6 Smith & Hogan, op. cit., p. 330.
7 op.cit., p. 60.
8 op.cit., p. 61.
9 Manzini, op. cit., p. 13.
20 Manzini, op. cit., p. 16
21 ibid.
22 Smith & Hogan, op. cit., p. 331.
23 The Times of Malta, 20.6.1995, p. 3.
24 Smith & Hogan, op. cit., p. 331.
25 Carrara, op. cit., Parte Speciale Vol I p. 74.
26 Smith & Hogan, op. cit., p. 333.
27 R. v. Hennigan (1971) 55 Cr.App.R. 262, C.A.
28 [1976] 1 All ER 260 at 265-266.
29 Criminal Appeal, [8.11.1988], Vol LXXII.5.893.
30 Smith & Hogan, op. cit., p. 335.
31 [1959] 2 QB at 42-43, per Parker LCJ.
32 124 Cal 551 (1899) Sup Ct of California.
33 Smith & Hogan, op. cit., p. 336.
34 ibid.
35 (1946) 36 J Cr L & Cr at 393.
36 See Smith & Hogan, op. cit., p. 337, for full passage.
37 ibid.
38 (1983) 76 Cr App Rep 279.
39 Smith & Hogan, op. cit., p. 338.
40 ibid.
41 [1975] 3 All ER 446.
42 Smith & Hogan, op. cit., p. 339.
43 ibid.
44 ibid.
45 "Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causng death, that they regard the contribution made by his act as insignificant." - excerpt from Cheshire [1991] 3 All ER 670.
46 Smith & Hogan, op. cit., p. 342.
47 Smith & Hogan, op. cit., p. 74.
48 Criminal Appeal, [8.11.1988], Vol LXXII.5.893.
49 Carrara, op. cit., p. 87.
50 Carrara, op. cit., p. 88.
51 Carrara, op.cit., p. 89.
52 Carrara, op.cit., p. 90.
53 Carrara, op.cit., p. 92.
54 Criminal Appeal, [4.2.1961]
55 Eddy, "Professional Negligence" (ed.1956, p.2) - quoted by the court in Pol v. Portelli.
56 Carrara, op.cit., p. 108.
57 ibid.
58 Carrara, op.cit., p. 121.
59 Mamo, Notes on Criminal law, p. 254.
60 Kenny, Outlines of Criminal Law (15th ed.) pp.153.
61 (1981) 73 Cr.App.R. 253, H.L.
62 Per Stephen J in Doherty (1887) 16 Cox CC 306 at 307.
63 Smith & Hogan, op. cit., p. 350.
64 Smith & Hogan, op.cit., pp.365.
65 Smith & Hogan, op.cit., p. 187.
66 Glanville Williams. The Theory of Excuses, Criminal Law Review (1982) pp.732.
67 Manzini, op. cit., p. 11.
68 Manzini, op. cit., p. 11-12.
69 Archbold, Criminal Law, para. 20-17.
70 Archbold, op. cit., para. 20-18.
71 Kenny, Outlines of Criminal Law (19th ed.) pp.141.
72 Manzini, op. cit., p. 13.
73 Carrara, op. cit., Vol 1 parte generale, p. 273.
74 Criminal Appeal, 9.11.1963, Vol. XLVII F.4.1270.
75 Carrara, op. cit., Vol 1 parte generale, p. 278.
76 ibid.
77 Criminal Appeal, 22.10.1960, Vol. XLIV E.4.964.
78 Carrara, op. cit., Vol 1 parte generale, p. 279.
79 Carrara, op. cit., Vol 1 parte generale, p. 281.
80 Criminal Appeal, 15.2.1958, Vol. XLII E.4.1245.
81 Criminal Appeal, 12.3.1960, Vol. XLIV D.4.834.
82 Criminal Appeal, 16.10.1937, Vol. XXIX M.4.764.
83 Carrara, op. cit., Vol 1 parte generale, p. 283.
84 ibid.
85 Criminal Appeal, 12.4.1897, Vol. XVI C.4.5.
86 Carrara, op. cit., Vol 1 parte generale, p. 285.
87 Carrara, op. cit., Vol 1 parte generale, p. 286.
88 Smith & Hogan, op.cit., p. 252.
89 Pol. v. Toni Micallef, Criminal Appeal, 16.10.1937, Vol. XXIX M.4.764.
90 Smith & Hogan, op.cit., p. 252.
91 Criminal Appeal, 22.2.1930, Vol. XXVII G.4.760.
92 Criminal Appeal, 22.10.1960, Vol. XLIV E.4.964.
93 Carrara, op. cit., Vol 1 parte generale, p. 286.
94 Carrara, op. cit., Vol 1 parte generale, p. 292.
95 Carrara, op. cit., Vol 1 parte generale, p. 294.
96 Carrara, op. cit., Vol 1 parte generale, p. 295.
97 Carrara, op. cit., Vol 1 parte generale, p. 299.
98 Carrara, op. cit., Vol 1 parte generale, p. 300.
99 Duffy [1949] 1 All ER at 932n.
00 Manzini, op. cit., p. 187.
01 Manzini, op. cit., p. 188.
02 Carrara, op. cit., Vol 1 parte generale, p. 301.
03 Carrara, op. cit., Parte Speciale, Vol I p. 477.
04 Criminal Appeal, 2.4.1960, Vol. XLIV D.4.861.
05 Manzini, op. cit., p. 191.
06 Criminal Appeal, 12.3.1960, Vol. XLIV D.4.834.
07 Smith & Hogan, op.cit., p. 355.
08 Manzini, op. cit., p. 189.
09 Carrara, op. cit., Parte Speciale, Vol I p. 483.
10 Smith & Hogan, op.cit., p. 359.
11 Smith & Hogan, op.cit., p. 360.
12 Criminal Court, 19.6.1937, Vol. XXIX M.4.724.
13 Criminal Appeal, 19.10.1957, Vol. XLI F.4.1470.
14 Smith & Hogan, op.cit., p. 363.
15 Smith & Hogan, op.cit., p. 353.
16 Criminal Appeal, 11.1.1941, Vol. XXXI D.4.384.
17 Carrara, op. cit., Parte Speciale, Vol I p. 537.
18 Mamo, op. cit., p. 264.