problem question on murder

Furthermore, prosecution will determine the question that –was there a break in the chain of causation, any intervening act?

The prosecution must look at Dr Dan’s act, that he was so busy to monitor the condition of Ali for six hours. The prosecution must prove that Dr Dan’s negligence ‘giving a blood transfusion of the wrong type of blood’ was so wrong that it could break the chain of causation. Boris will be able to evade liability of his act and omission. The prosecution will look at the case Cheshire 1991. In this case, the court ruled ‘Even though negligence medical treatment was the immediate cause of death that should not exclude the accused responsibility’ and the accused act was the significant cause of death. Furthermore, if Boris wants to use medical negligence for his defense, then he must prove that it was ‘so palpably wrong’ that it could possibly break the chain of causation (Jordan 1956) . On the other hand, prosecution may look at the case of R v Blaue and consider that Boris must take his victim as he found him. This means ‘the whole man, not just the physical’.

Although, the chain of causation can be broken by the victim’s conduct (Dear 1996).

In proving mens rea Boris would be found guilty if the intention to commit crime will be proved. The jury must be convinced that he intended to kill or cause grievous bodily harm under s.18 OAPA 1861. It will require proof of ‘serious bodily harm’ (DPP v Smith). Firstly, the prosecution has to prove that Boris ran over Ali with the intention to kill him. However, if the circumstance of the defendant’s intention is unclear, the judge will direct to the jury on a meaning of the intention – oblique intention. Moreover, the crime needs proof of intention and it will be established by the evidence of what Boris could have foreseen.    

S.8 of the Criminal Justice Act 1967 provides that ‘a court and jury in determining whether he intended or foresaw a prohibited result’ (subjective test) in the case of Hancock and Shankland [1986], R v Nedrick [1986] and Woolin [1998] the decision based on foresight. In the case of Woollin (confirmation of the Nedrick judgment), it was stated that the jury may not assume an intention, unless they are satisfied by the evidence that death or serious bodily harm was ‘virtually certain’ and the defendant appreciated it.

In this case, Boris intention was not to kill or bodily harm Ali, it was only to frighten him. The defenses will need to have sufficient evidence to prove, that Boris has not foreseen Ali’s death because the risk was slight. Therefore, the charge of murder may be quashed to constructive manslaughter. Although, the unlawful act must be a crime requiring mens rea greater than negligence (R v Lamb) and is dangerous, has got a risk that causes death (R v Church).  Whether the act is unlawful and dangerous it is for the jury to decide according to the objective test by the view of all sober and reasonable people (R v Dawson). The jury will consider the circumstances encountered by Boris, but may not accept his allege that his misjudgment releases him from liability (R v Ball). The prosecution most likely will set aside Boris’s defense, and they need to prove that Ali’s death was virtually certain. Moreover, through the Nedrick test has to be proved that Boris’s act to run over Ali by his car was therefore virtually certain and he appreciated it. If the prosecution succeed in proving the Nedrick test, then the jury will find Boris guilty of an unlawful intention to kill Ali and they will convict him for murder.

Even though, Boris would be convicted for murder he may raise a defense on the basis of provocation and diminished responsibility what could reduce the conviction of murder to voluntary manslaughter.

Whether Boris has killed Ali or not, he shall not be convicted of murder if he was suffering from such abnormality of mind (arrested or retarded development of mind, inherent causes, disease or injury) substantially impaired his mental responsibility of his act (R v Byrne). Boris had suffered from personality disorder from an early age, but this may not be enough to stand for his defense, because it must result in a significant damage of mental responsibility (R v Gittens). By s 2(2) of the act expressly puts the burden of proof on the defendant and it has been the standard of proof required on a balance of probabilities. Boris will need medical evidence to prove his illness. The jury will be the body to decide after they had heard the entire defense of the doctors.

There is another possible way for Boris to reduce his conviction through provocation. Along with the diminished responsibility, this defense is a ‘partial defense’ reducing the conviction to one of manslaughter. The common law rule was stated by Devlin J in the case of (R v Duffy) which rule was amended by s 3 of the Homicide Act 1957. Boris was provoked by Ali’s aggressive manner. Boris’s defense will need evidence of his provocation (words or action), and that he had sudden and temporary loss of self control (subjective test) and the jury must be satisfied that the reasonable person would have acted (objective test) in a way as Boris, under his provocative situation. Boris would be entitled to this defense if he suffered from sudden loss of self control on the basis of Ali’s aggressive act, and A has immediately provoked B by hammering on his car and shouting at him. The jury must be satisfied that Ali’s act was serious enough to unbalance the behavior of Boris as a reasonable man with reasonable self control (Smith (Morgan)), and the question is that; was it a reasonable level of self control for him? Everything must be taken into the account such as depressive illness and so on. However, s 3 of the Homicide Act says that Smith was wrong, so the latest decision in the case of Holly, the objective test may be regarded as subjective. The jury will require to access to the defendant’s characteristic to decide if he lost self control.

The prosecution has to question Colin’s omission, who has seen Ali being injured and unconscious but still alive. Therefore, he has driven away. The question is, is there any legal issue to prove Colin’s liability, was an omission and has he failed to act? Under (Road Traffic Act) statute imposes such a duty, that stop after a road traffic accident but this is not a legal moral duty. However, academics says on the lines of (Dytham), where the police officer was determined to be liable, virtue officii, to intervene and  stop an assault, that Colin may have similar duty to act by virtue of his office, in which case his omission would be sufficient to attract liability. Although, Colin was on off duty, his liability maybe questioned, but it is for the jury to decide.

In order to discuss criminal liability of Dr Dan, the prosecution will put forward the charges of murder or manslaughter by gross negligence, which is serious enough to be considered as crime. First, to be applied is the ‘but for’ test (White).Would Ali has died but for Dan’s action. The answer is no, but could be yes. However, Dan’s action has not killed Ali -he actually killed himself (R v Blaue), (R v Dear) - but the end result is death. Ali did not want to suffer from the consequences of the wrong blood anymore. Furthermore, the prosecution and the defense will argue whether or not Dan‘s action was unlawful for the reason that he has given the wrong blood to Ali.

As the causation has been mentioned above it is the jury who decides, that Dan’s action was ‘palpably wrong’. Prosecution will question that; did he have a duty of care, and did he breach his duty? Was there any risk of death -and most importantly- did it cause Ali’s death? Moreover, if the jury will be satisfied in all these questions, then Dan may not be liable for Ali’s death.

However, Dan may be charged with manslaughter by gross negligence, that is a strict liability offence, and it would no need proof of mens rea. It was stated in the case of Adomako where the accused has had a duty of care, had breached his duty, and had caused death, so it is for the jury to consider as grossly negligent. The risk, that the doctor had taken - working for 24hrs with no break - must have been foreseeable for a reasonable man. Therefore his liability is unquestionable.

If the prosecution will prove, that Ali’s death was foreseeable then the Dr would be convicted of manslaughter by gross negligence.    

Bibliography

Lecture Notes

Lecture Outlines

Module Booklet

Criminal Law Text Book, Smith and Hogan, 11th Edition, Oxford Press

Criminal Law Cases and Materials, Smith and Hogan, 9th Edition, Oxford Press

Criminal Law Revision Workbook, Mischa Cobley, 4th Edition, Old Bailey Press

Electronic Sources

Iolis 2006-07

Westlaw (Case Summary)

Lexis-Nexis Butterworth (Full Cases)

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