Question)

Zoe and Yan are partners in a long-standing relationship. Yan is a heroin addict. Zoe is an ex-addict.
One day Yan asks Zoe to inject him. At first Zoe refuses. Yan threatens to inject himself unless she
agrees. Reluctantly Zoe complies, concerned that, if she does not, Yan may overdose. After a short while,
Yan finds breathing difficult and he collapses. Zoe, hoping Yan will recover and anxious not to get herself
into trouble, puts him to bed and watches over him. Two hours later Yan has not regained consciousness
and so Zoe calls for an ambulance. At the hospital, Yan’s breathing gets worse and he appears to be in
great distress. Dave, a junior doctor, mistakenly administers a strong sedative. The combined effect of the
heroin and sedative results in Yan’s death. Medical evidence indicates that administering a sedative to
someone unconscious due to heroin ingestion is potentially lethal and that if the sedative had not been
administered Yan would probably have survived.

When Dave tells Zoe about the mistake, he has made she flies into a fury and stabs Dave through the
heart with a pair of scissors. Dave dies immediately.

Discuss the potential criminal liability of Zoe.

Answer)

The issues in this question are whether Zoe is liable for homicide of Yan and Dave and if Dave is liable for
Yan’s death. To hold Merys liable for murder, it needs to be proven beyond reasonable doubt that Merys
committed the actus reus and had mens rea for murder. The actus reus of murder consists of the conduct (act or
omission) of the defendant, death of the victim, and the causal link between the Defendant’s conduct and the
victim's death. In our facts, the conduct is present which is Merys’ voluntary act of smashing Frasier's head
several times with a paperweight. Secondly, the result is present, which is that the victim, Frasier, has died.
Thirdly, to determine whether there was a causal link between Merys’ conduct and Frasier's death, it needs to be
determined whether Merys’ act was the factual and legal cause of Frasier's death.

The law stated that a person is the cause of the result if they make more than a negligible contribution to its
occurrence. Moreover, as per R v White, an act is the factual cause if but for that act, the consequence would
not have happened. If the consequence would have happened just as it did irrespective of the defendant's act, it
is not caused by the defendant. In our facts, Merys’ act of smashing made a more than negligible contribution to
Frasier’s death. Moreover, but for Merys’ act of smashing, Frasier would not have died since he would not have
become unconscious and hence would not have sustained injuries from falling while being taken to the hospital.
Therefore, Merys’ act is the factual cause of Frasier's death. Similarly, for Merys’ act to be the legal cause, it
has to be both substantial and operative (R v McKechnie). Moreover, the defendant's act is not the cause if an
act/event subsequent to its occurrence occurs which is the immediate and sufficient cause of the result, which
the Defendant did not foresee, and which could not in the circumstances reasonably have been foreseen. In our
facts, subsequent to Merys’ act, an event (stumble/fall) occurred which as per the facts is the immediate and
sufficient cause of Frasier's death, and which Merys might not have foreseen, but it is an event which could in
the circumstances reasonably have been foreseen. It could have been foreseen that Merys could fall while
holding Frasier, an unconscious adult of her age, and that Frasier could sustain injuries as a result. People call
ambulance in such situations since they know that they cannot manage the patient on their own. Hence, it might
be held that the stumble did not break the chain of causation. Now, the issue is whether Merys’ act is the
substantial and operative cause of Frasier's death. In R v Smith, the court held that the defendant’s initial act
was still the substantial and operative cause of the Victim’s death even though the intervening act (involuntary
fall) contributed to the death. Similarly, the court might hold Merys’ initial act to be both substantial and
operative.

After the causation is proved and the actus reus is established, it needs to be proven beyond reasonable doubt
the mens rea for murder which is either an intention to kill the victim or an intention to cause Grievous Bodily
Harm (R v Vickers and R v Cunningham). To find intention, Merys’ objective must be considered. In this case,
two facts suggest that Merys’ objective in acting as she did at that time was to cause Frasier serious injury.
Firstly, her action of smashing paperweight (which is heavy enough to cause serious harm) over Frasier's head
several times and secondly, her later regret (regret means that she intended it when she was doing it). Hence, the
judge would give a standard direction to the jury that it should find intention for murder. However, it could be
argued that Merys’ state of intoxication negated her mens rea for murder but here it cannot be used as a form of
defense as the intoxication was voluntary.

If, however, the mens rea is established, the next issue would be whether Merys has any interference available
to her. The most likely defense is the partial defense of loss of self-control as there is no evidence that she had
any recognized medical condition. It reduces a murder conviction to a conviction for voluntary manslaughter
and gives sentencing discretion. Under the law, s.54 of the Coroners and Justice Act 2009 states that Merys is
not to be convicted of murder if Merys’ act resulted from the loss of self-control, and loss of self-control had a
qualifying trigger and a person of Merys’ sex and age with a normal degree of tolerance and self-restraint might
have reacted in a similar way. To establish the first element, it must be shown that the act resulted from loss of
self-control and not due to a premeditation or a desire for revenge. The facts suggest that Merys lost her self-
control and did not pre-plan the killing or act in revenge. This loss of self-control does not have to be sudden (R
v Ahluwalia, s.54(2)). In our facts, this is not at issue since the killing was sudden. The second element of the
defense is that Merys’ loss of self-control must have been triggered by a qualifying trigger (s.54(1)(b)). Sexual
infidelity alone is not a qualifying trigger (s.55(6)), however, if it provides a context within which another
trigger operates, it must be considered (R v Clinton, R v Dawes, R v Hatter). In our facts, Merys’ loss of self-
control triggered by sexual jealousy when she discovered her husband's affair with her sister cannot form the
basis of deference. However, it must be considered if it provides a context within which another trigger operates
i.e., Frasier's words that 'he considers Merys as sexually repulsive and that he cannot stand her touching him'
amounted to circumstances of extremely grave character which caused Merys to have a justifiable sense of
being seriously wronged (s.55(4)). In our facts, Frasier's words coupled with Sexual Infidelity can amount to
circumstances of extremely grave character and are capable of causing Merys to have a justifiable sense of
being seriously wronged as Frasier and Merys were married and discovering that she has been living with a
person who never found her physically attractive and had an affair with her sister for a good time is very
disturbing. Hence, the court might hold that Merys’ loss of self-control had a qualifying trigger. The third
element of the defense i.e., that a person of Merys’ sex and age with a normal degree of tolerance and self-
restraint might have reacted in the same or similar way (s.54(1)(c)), might be established since Merys according
to the normal standard.

In view of the above, the defense of loss of self-control may be established. Moreover, the defense of
Diminished responsibility would not be available since it requires recognized medical condition of the
defendant and voluntary intoxication is not a recognized medical condition.