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Cases - murder - mens rea

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Adams, R v [1957] Devlin J

Attorney-General of Northern Ireland v Gallagher [1961] HL

Attorney-General’s Reference (No.3 of 1994) [1996] HL

Burton v Islington Health Authority (1003) CA

Cunningham, R v (1981) HL

Donnelly, R v [1989] CA

Frankland & Moore v R [1987] (Isle of Man)

Gilmour (Thomas Robert), R v (2000) CA

Hancock and Shankland, R v (1986) HL

Howe, R v (1987) HL

Hyam v DPP (1975) HL

Janjua & Choudhury, R v (1998) CA

Latimer, R v (1886)

Lipman, R v [1969] CA

Meli v R [1954] PC (South Africa)

Mitchell, R v [1983] CA

Moloney, R v (1985) HL

Nedrick, R v (1986) CA

O’Connor, R v [1991] CA

Re A (Children) (2000) CA

Scalley, R v [1995] CA

Sheehan & Moore, R v [1975] CA

Smith, DPP v [1960] HL

Vickers, R v (1957)

Walker and Hayles, R v (1990) CA

White, R v [1910] CA

Woollin, R v [1998] HL

Adams, R v [1957] Devlin J

 


 

^[Murder - intention – doctors – double effect]

D, a doctor was charged with "easing the passing" of elderly patients by giving drugs calculated to hasten their deaths (one had left a bequest - including a Rolls-Royce - to him in her will).


Held: A doctor has no special defence, but "he is entitled to do all that is proper and necessary to relieve pain even if the measures he takes may incidentally shorten life".


Acquitted

Attorney-General of Northern Ireland v Gallagher [1961] HL


 

[Murder - intention – specific intent – Dutch Courage Rule – not a defence of intoxication. Actus and Mens need not coincide]

D stabbed his wife to death. To give himself "Dutch courage" drank a substantial amount of whiskey.


Held: It was enough to have the intention to kill before becoming intoxicated, and not to clearly abandon that intention. It was not necessary to prove that D had the necessary intention at the time of the actual stabbing.


Guilty murder

Attorney-General’s Reference (No.3 of 1994) [1996] HL

 

[Murder - intention –  transferred malice etc]

D stabbed child’s mother whilst pregnant. Child lived for only 121 days. Her premature birth was caused by the injuries that her mother received when the defendant stabbed her. On his own admission D intended to cause the woman grievous bodily harm. So the mens rea for murder was present, if the death of the mother had been the result of his act:


Held: Where a child is born alive, and dies later from injuries inflicted while in utero.


Murder - No.


Manslaughter - Yes.

If the child dies because of injury to the mother rather than injury to the foetus


Murder - No


Manslaughter – No


D could be guilty of manslaughter, but not murder (no intent towards the child).

 

Lord Mustill describe “indiscriminate malice”, he said:

“The terrorist who hides a bomb in an aircraft provides an example [of indiscriminate malice].

 

This is not a case of "general malice" … Nor is it transferred malice, for there is no need of a transfer.

 

The intention is already aimed directly at the class of potential victims of which the actual victim forms part.

 

The intent and the actus reus completed by the explosion are joined from the start, even though the identity of the ultimate victim is not yet fixed. So also with the shots fired indiscriminately into a crowd.

 

No ancient fictions are needed to make these cases of murder.”
 

Burton v Islington Health Authority (1003) CA

[Murder - intention –  reasonable human being - unborn child cannot be victim of murder]

Held: That the child en ventre sa mère (unborn) does not have a distinct human personality, whose extinguishment gives rise to any penalties or liabilities at common law.

 

Cunningham, R v (1981) HL

 


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[Murder - intention –  intention to commit homicide or grievous bodily harm]

D attacked V in a pub, hitting him repeatedly with a chair, which resulted in V’s death.


Held: Intention to cause grievous bodily harm, but not to cause death, is sufficient to establish the mens rea for murder.

Lord Hailsham LC:

‘malice aforethought has never been limited to the intention to kill or to endanger life’.

Lord Edmund-Davies (dissenting):

"I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another’s arm, an action which, while undoubtedly involving the infliction of ‘really serious harm’ and, as such, calling for severe punishment, would in most cases be unlikely to kill. And yet, for the lesser offence of attempted murder, nothing less than an intent to kill will suffice. But I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill."

Guilty

Donnelly, R v [1989] CA

[Murder – intention – virtual certainty]

V was killed by the accidental discharge of a shotgun being used by D as a club. At D’s trial for murder the judge told the jury to consider the likelihood of such a discharge as an indication of possible intention.


Held: There was no evidence that such a likelihood had been anywhere near a "virtual certainty", and if D had intended to cause death or serious injury he could simply have pulled the trigger.


Not guilty of murder guilty of manslaughter

Frankland & Moore v R [1987] (Isle of Man)

[Murder – intention – what a reasonable man would have foreseen not the test]

DD were charged with murder in the Isle of Man, where no provision corresponding to s.8 of the Criminal Justice Act 1967 was at the time in force and the law of murder was essentially the English common law. The trial judge followed DPP v Smith and directed the jury that the test was what a reasonable man would have foreseen as the probable consequence of DD’s acts.


Held: DD’s appeal against conviction, strongly disapproving DPP v Smith and declaring that no such objective had ever been part of the common law so far as murder was concerned


Conviction for murder quashed

Gilmour (Thomas Robert), R v (2000) CA

[Murder - intention –  Manslaughter; Murder; Northern Ireland]

D drove three others to a house, which was petrol, bombed, resulting in the deaths of three children.

D contended that he had been unaware that the intention of throwing the petrol bomb had been to kill or cause grievous bodily harm to the occupants of the house, rather than to frighten them.

 

Held:

  1. there was insufficient proof that G realised the actual intention of those throwing the petrol bomb, and

  2. there were no policy grounds why in circumstances where a principal committed an act contemplated by an accomplice, that that accomplice should not be guilty of the level of offence appropriate to the actual intent with which it was carried out.

Not guilty of murder

Hancock and Shankland, R v (1986) HL


'Must know' content indicated by red triangle

[Murder - intention –  includes knowledge or foresight]

In the midst of a miner’s strike in which they were participating, H and S pushed a concrete block and post from a bridge over the road along which V was driving M; the latter was killed in the collision.

 

Held:

Lord Scarman:

The issue of probability regarding death or serious injury is critical to determining intention, yet Moloney omitted any reference in its guidelines to this issue.

‘[T]herefore, the Moloney guidelines as they stand are unsafe and misleading. They require a reference to probability. They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended.’

H and S were not guilty of murder.

Howe, R v (1987) HL


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[Murder - intention – duress]

D (19) took part in a ‘nauseating’ killing of the first victim aged 17 and the killing of the second victim aged 19 at the isolated location. D claimed he took part because he was in fear of his own life from M aged 35.

 

Held: Duress no defence to murder overruled Lynch which said it was to 2nd degree murder, or manslaughter

 

Guilty

Hyam v DPP (1975) HL

 

 

'Must know' content indicated by red triangle


 

[Murder - intention –  intention to commit homicide or grievous bodily harm]

D sought to frighten an occupant of a house by pouring petrol though the letterbox and then igniting it, resulting in the death of two occupants by asphyxia.

 

Held: Intention is to be distinguished from desire and foresight of probable consequences.

Lord Hailsham LC:

 ‘[A] man may desire to blow up an aircraft in flight in order to obtain insurance moneys. But if any passengers are killed he is guilty of murder, as their death will be a moral certainty if he carries out his intention.’

Therefore, intention is established

‘where the defendant knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse ... It does not matter in those circumstances whether the defendant desires those consequences to ensue or not, and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed.’

 

A man may do an act with a number of intentions. If he does it deliberately and intentionally, knowing when he does it that it is highly probable that grievous bodily harm will result ... [then] whatever other intentions he may have had as well, he at least intended grievous bodily harm.’

Guilty

Janjua & Choudhury, R v (1998) CA

[Murder – intention – really serious harm]

DD stabbed V several times with a knife at least five inches long killing him.

 

Held: In this case there was no risk that the jury would think anything less than "really serious harm" was meant.

 

Guilty of murder

Latimer, R v (1886) CCR

 

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[Murder - intention – Transferred malice]

D, a soldier during an argument with another man C in a pub, took off his belt swung it at C, missed and wounded the landlady V.

 

Held: The intention to strike C was transferred to V under the doctrine of transferred malice.

 

Guilty

Lipman, R v [1969] CA



 

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[Murder - intention –  not formed when intoxicated]

D and his girlfriend V each took a quantity of LSD (a hallucinatory drug). During his "trip", D imagined he was being attacked by snakes at the centre of the earth and had to defend himself; in doing so, he actually killed V by cramming eight inches of sheet down her throat.

 

Held: He was acquitted of murder because the jury were not sure that he had the necessary intention, being intoxicated, but convicted of manslaughter

 

Guilty of manslaughter

Meli v R [1954] PC (South Africa)


 

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[Murder - intention –  actus and mens to coincide at some point]

Thabo Meli and his friends took their victim to a small hut and beat him over the head intending to kill him. Thinking they had succeeded, they rolled his body over a cliff to make the death appear accidental. In fact, the victim survived both the beating and the rolling, but died from exposure shortly afterwards.

 

Held: Where the actus reus consists of a series of linked acts, it is enough that the mens rea existed at some time during that series, even if not necessarily at the time of the particular act which caused the death. The doctrine of "transferred malice" applies here as elsewhere: an intention to kill one person can be transferred to another if the second is the one who actually dies from the defendant’s act

 

Guilty of murder

Mitchell, R v [1983] CA

 

'Must know' content indicated by red triangle

[Murder - intention – manslaughter – transferred malice]

D and another man S became involved in a scuffle in a Post Office; D pushed S, who fell onto an elderly lady C, causing C injuries from which she later died.

 

Held: His intention to assault X was transferred to C.

 

Guilty of manslaughter

Moloney, R v (1985) HL


'Must know' content indicated by red triangle
 

 

[Murder - intention –  includes knowledge or foresight]

D and V (D’s stepfather of whom D was very fond) had a contest as to loading and firing a shotgun. D a serving soldier shot V without aiming. V taunted D to fire the gun. Incident occurred during a late night of drinking.

 

Held:

Lord Bridge:

‘foresight of consequences, as an element bearing on the issue of intention in murder, or indeed any other crime of specific intent, belongs, not to the substantive law, but to the law of evidence ... In the rare cases in which it is necessary for the judge to direct a jury by reference to foresight of consequences, I do not believe it is necessary for the judge to do more than invite the jury to consider two questions. First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence.’

D was not guilty of murder

Nedrick, R v (1986) CA


'Must know' content indicated by red triangle

[Murder - intention –  includes knowledge or foresight]

D poured paraffin through the letterbox of a house and set it alight, resulting in the death of a child.

 

Held: Per Lord Lane CJ:

‘Where the charge is murder and in the rare cases where the simple direction [on intent] is not enough, the jury should be directed that they were not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant realised that such was the case. Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury, to be reached on consideration of all the evidence.’

D was guilty of manslaughter, not murder.

O’Connor, R v [1991] CA

[Murder - intention – manslaughter – intention – not formed when drunk]

In a drunken state, D killed another man in a fight.

 

Held: The trial judge should have instructed the jury to consider D’s specific intent or lack of intent in the light of his intoxication, and had failed to do so.

 

Not guilty of murder guilty of manslaughter.

Re A (Children) (2000) CA

[Murder - intention – can be inferred]

"Conjoined twins" Jodie and Mary were joined in such a way that Jodie’s heart and lungs were providing oxygenated blood for both; medical opinion broadly agreed that both would die in three to six months - or possibly slightly more - if nothing was done. Doctors sought the leave of the court to separate the twins, giving Jodie a good chance of a fairly "normal" life but causing the immediate death of Mary. The twins’ parents opposed the application for religious reasons.

 

Held: Brooke LJ said there could be no doubt that in English law, a surgeon who performed the separation knowing that it would inevitably hasten Mary’s death would be held to have caused that death and to have done so intentionally, even though that would not have been his primary motive. So far as the law was concerned, the doctrine of double effect did not apply here because Mary’s death would not be a side-effect of treatment that was in her best interests overall.

Also here.

Scalley, R v [1995] CA

[Murder - intention – foresight is evidence of intent, not necessarily is intent]

D set fire to a house by pushing lighted newspaper through the letterbox, and a child died in the fire; D was charged with murder. The judge told the jury they should convict if they were sure that D intended death or grievous bodily harm, in the sense that he foresaw either consequence as virtually certain to result from his actions.

 

Held: The judge should have made it clear that foresight was merely evidence of intent and was not to be equated with it.

 

Not guilty of murder guilty of manslaughter.

Sheehan & Moore, R v [1975] CA

[Murder - intention – intention must be proved]

In revenge for a minor theft, and in a drunken state, D1 (assisted by D2) poured petrol over a man V and burned him to death.

 

Held: The question was not whether DD were capable of forming the necessary intention but whether they had in fact done so, and the onus of proving that was on the prosecution

 

Not guilty of murder guilty of manslaughter.

Smith, DPP v  [1960] HL

 

 

[Murder - intention – intention to kill or GBH – intention can be formed instantly – intention can be inferred]

D trying to escape from the police in a car was signalled to stop. He did not do so. A PC jumped onto the car’s bonnet. D drove at high speed, swerving from side to side, until the officer was thrown off and killed.


Held: It was clear that he had intended to cause grievous bodily harm, which meant no more and no less than really serious injury.

 

Viscount Kilmuir LC;

"I can find no warrant for giving the words “grievous bodily harm” a meaning other than that which the words convey in their ordinary and natural meaning. “Bodily harm” needs no explanation and “grievous” means no more and no less than “really serious”."

Guilty murder

Also regarding assaults

Vickers, R v (1957) CA

 


 

[Murder - intention –  constructive malice]

During D’s burglary of V’s shop, V discovered D whereupon D struck V with several blows. V eventually died from shock due to general injuries.


Held: Lord Goddard CJ

‘because he has killed a person with the necessary malice aforethought being implied from the fact that he intended to do grievous bodily harm ... in considering the construction of s 1(1) [Homicide Act 1957], it is impossible to say that the doing of grievous bodily harm is the other offence which is referred to in the first line and a half of the subsection [i.e. which abolishes constructive malice]. It must be shown that independently of the fact that the accused is committing another offence, that the act which caused the death was done with malice aforethought as implied by law’

D guilty of murder

Walker and Hayles, R v (1990) CA

[Murder - intention –  includes knowledge or foresight]

W and H threw V from a third-floor balcony. V was not killed.

 

Held:

‘[O]nce one departs from absolute certainty, there is bound to be a question of degree. Reading Lord Scarman’s speech in Hancock and [reading] Nedrick we are not persuaded that it is only when death is a virtual certainty that the jury can infer intention to kill. Providing the dividing line between intention and recklessness is never blurred, and provided it is made clear ... that it is a question for the jury to infer from the degree of probability in the particular case whether the defendant intended to kill, we would not regard the use of the words "very high degree of probability" as a misdirection.’

W and H guilty of attempted murder.

White, R v [1910] CA


'Must know' content indicated by red triangle

[Murder - intention –  intention to kill]

D put cyanide into his mother’s lemonade drink, but she died of heart failure before the poison could kill her. The answer to the question ‘But for what the defendant did would she have died?’ is ‘No’. She would have died anyway.

 

Held: He was acquitted of murder on the grounds that he had not actually caused his mother’s death.

 

Guilty of attempted murder.

Woollin, R v [1998] HL


'Must know' content indicated by red triangle

[Murder – intention – Nedrick correct test in most circumstances]

D lost his temper with his three-month-old son and threw the child onto a hard surface, causing head injuries from which the child died.

 

Held: The jury, should be directed that they are entitled to find the necessary intention if they feel sure that death or serious bodily harm was a virtual certainty - barring some unforeseen intervention - as a result of the defendant’s actions, and that the defendant realised such was the case, but should be reminded that the decision is one for them on a consideration of all the evidence. Murder is a crime of specific intent. If for any reason (including self-induced intoxication) the killer does not form the necessary intent, he cannot be convicted of murder

 

Not guilty of murder, guilty manslaughter.

 

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