Murder

Criminal Law
 Murder

Murder has been classically defined by Sir Edward Coke as far

back as the 17th century as:

“… when (1)a man of sound memory, and (2) of the age of

discretion, (3) unlawfully killeth within any country of the
realm (4) any reasonable creature in rerum natura under the
King's peace, (5) with malice aforethought, either expressed
by the party or implied by law, (6) so as the party wounded, or
hurt, etc. die of the wound or hurt, etc. (7) within a year and a
day after the same."
 Murder

For ease of reference and without taking anything away from the
classic definition, we can simply say that murder is

the killing of a human being by another human, under the

Queen’s peace with malice aforethought

bearing in mind that death no longer need occur within a year and
a day and bearing in mind that malice aforethought simply means
intention.
 Murder
This is said to occur when:

(1)A man of sound memory, and of the age of discretion,

(2) unlawfully killeth within any country of the realm any reasonable creature
in rerum natura under the King's peace,

(3) with malice aforethought, either expressed by the party or implied by law,

(4) so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within
a year and a day after the same."
 Murder

A Man Of Sound Memory/ Age Of Discretion

In order to be capable of committing a crime, one has to be in his

her right mind/otherwise known as “being a man of sound
memory” , or must have reached the age of capacity which in
Jamaica is the age of twelve (12.)
 Murder

A Man Of Sound Memory/ Age Of Discretion

Section 25 of the Criminal Justice (Administration) Act makes

provisions for dealing with mentally insane persons who are
indicted for crimes but found upon arraignment to be insane.

See Section 63 of The Child Care and Protection Act which states:
It shall be conclusively presumed that no child under the age of
twelve years can be guilty of an offence.
 Murder

A Man Of Sound Memory/ Age Of Discretion

Section 3 of the Juveniles Act contains the exact wording found in

the CCPA:

It shall be conclusively presumed that no child under the age of

twelve years can be guilty of an offence.
 Murder

A Man Of Sound Memory/ Age Of Discretion

It is important to note also that a corporation, though recognized

as a legal person cannot be tried for murder either as it is
incapable of suffering the only penalty prescribed by law which is
life imprisonment.

See Section 3 of the Offences Against the Person Act (OAPA)

which prescribes the penalty for murder.
 Murder

A Man Of Sound Memory/ Age Of Discretion

A man of sound memory is therefore any person who may be

found criminally liable for his actions under the principles of
criminal liability.
 Murder

Unlawfully Killeth

Remember your notes and cases on actus reus.

Note also : Not all killing is unlawful.

 Murder

Unlawfully Killeth

The killing must be unlawful. A hangman or executioner is acting

in accordance with State Law. He is not guilty of murder.

A person who kills another in defence of self where he would have

been killed by the deceased if he had not acted is also not guilty
of murder.
 Murder

Unlawfully Killeth

Sec 10 of the Offences Against the Person Act makes provision for
where a person kills another person in self defence or through
misfortune when it states:

“No punishment or forfeiture shall be incurred by any person who

shall kill another by misfortune, or in his own defence, or in any
other manner without felony”.
 Murder

Unlawfully Killeth

Section 14 of the Jamaican Constitution makes it lawful for the

state to take a life in “execution of the sentence of a court in
respect of a criminal offence of which he has been convicted”
 Murder
It also makes it lawful where a person is killed as the result of the
use of force in certain circumstances namely:

(a) the defence of any person from violence or for the defence of
property;
(b) in order to effect a lawful arrest or to prevent the escape of a
person lawfully detained;
(c) for the purpose of suppressing a riot, insurrection or mutiny;
(d) in order lawfully to prevent the commission by that person of a
criminal offence, or (e) if he dies as the result of a lawful act of war.
 Murder

In order for a killing to be deemed unlawful therefore, it must been

occasioned outside the permissible ambits of the law and it must
also be proven that the act (or omission) of the defendant was the
legal cause of the death of the victim.

We will visit causation shortly.

 Murder

Creature in Rerum Natura

The victim must be a human being.

This concerns foetuses and those who are considered brain dead as
opposed to heart dead.
 Murder

Creature in Rerum Natura

• The foetus must have been expelled

• The foetus must have been alive at birth
• The foetus must have been alive at the time the fatal act was
done

If the act was done before birth but results in subsequent death
after being born alive, prosecution may be successful with a
MURDER charge against the accused. See S72-75 of OAPA.
 Murder

Re AG’s Reference (NO.3 of 1994) [1997] 3 All ER 936

The defendant stabbed his pregnant girlfriend in the face,

abdomen and back when she was 22-24 weeks pregnant. 17 days
after the incident the woman went into premature labour and gave
birth to a live baby.

The baby died 121 days later due to the premature birth. The
defendant was charged with wounding and GBH on the mother
and convicted for which he received a sentence of 4 years.
 Murder

Re AG’s Reference (NO.3 of 1994) [1997] 3 All ER 936

On the death of the baby he was also charged with murder and
manslaughter. The trial judge held that he could not be convicted
of murder or manslaughter since at the time of the attack the
foetus was not in law classed as a human being and thus the mens
rea aimed at the mother could not be transferred to the foetus as it
would constitute a different offence. The Attorney General referred
the following point of law:
 Murder

Re AG’s Reference (NO.3 of 1994) [1997] 3 All ER 936

"1.1 Subject to the proof by the prosecution of the requisite intent
in either case: whether the crimes of murder or manslaughter can
be committed where unlawful injury is deliberately inflicted:
(i) to a child in utero
(ii) to a mother carrying a child in utero
where the child is subsequently born alive, enjoys an existence
independent of the mother, thereafter dies and the injuries
inflicted while in utero either caused or made a substantial
contribution to the death.
 Murder

Re AG’s Reference (NO.3 of 1994) [1997] 3 All ER 936

"1.2 Whether the fact that the death of the child is caused solely as
a consequence of injury to the mother rather than as a
consequence of direct injury to the foetus can negative any liability
for murder or manslaughter in the circumstances set out in
question 1.1."

The Court of Appeal reversed the decision in relation to murder.

The defendant appealed to the House of Lords
 Murder

Re AG’s Reference (NO.3 of 1994) [1997] 3 All ER 936

Held: The appellant's actions could not amount to murder for the
reasons given by the trial judge. However, his actions could amount
to constructive manslaughter.

There was no requirement that the foetus be classed as a human

being provided causation was proved. The attack on the mother
was an unlawful act which caused the death of the baby.
 Murder

Re AG’s Reference (NO.3 of 1994) [1997] 3 All ER 936

There is no requirement under constructive manslaughter that the

unlawful act is aimed at the actual victim or that the unlawful act
was directed at a human being.
 Murder

Creature in Rerum Natura

• There has been call for reform of the laws against procuring an
abortion
• Issues such as Zika
• Teenage Pregnancy
• Circumstances crucial to life
• Approval of 2 medical practitioners
• Policy still not enforceable yet, statute OAPA is in force
• See articles in Jamaican papers such as this one and this.
 Murder

Creature in Rerum Natura

On the issue of 'brain death' as against 'heart death', the law relies
upon medical science to a great extent.

It has been held that causing brain death is sufficient to found a

charge of murder.
 Murder

Creature in Rerum Natura

The disconnection of a respirator following brain death is not the

cause of death.

The accused who had attacked the victim and placed him in a
coma, and where a doctor subsequently turned off the respirator at
the request of the family, is the one who caused the death.

See case of R v Malcherek and Steel (1981)

 Murder

Creature in Rerum Natura

R v Malcherek and Steel (1981)
Two separate appeals were heard together. In Malcherek the
defendant had stabbed his wife.

In Steel the defendant was accused of sexually assaulting and

beating a woman over the head with a stone. In both cases the
victims had been taken to hospital and placed on life support
machines.
 Murder

Creature in Rerum Natura

R v Malcherek and Steel (1981)
The doctors in the respective cases later switched off the life
support machines as both victims were not showing any activity in
their brain stem.

The defendants sought to argue that the doctors' actions

constituted a novus actus interveniens which broke the chain of
causation.
 Murder

Creature in Rerum Natura

R v Malcherek and Steel (1981)

Held: Convictions upheld

The test of death is where the brain stem has died. Thus at the time
of switching off the machine, the victims were already dead. The
doctors could not therefore be the cause of death.
 Murder
Realm…Kings Peace?
This would be the Queens Peace now. This had more meaning during colonial
and imperial times. It still conveys the idea of universality and relates to
extradition.

The requirement for ‘any county of the realm’ means that the killing must
have occurred in the country in which the prosecution is brought. A person
cannot be tried and convicted in Jamaica for a killing that occurred, eg, in
Antigua. He would be sent back to Antigua and tried there. This is done by
the process known as ‘extradition’.
 Murder
Malice Aforethought (Mens Rea)
The rather quaint expression, ‘malice aforethought’, is a term of art
and goes to the root of the mens rea of murder. It is not required
that the accused had 'malice', meaning evil thoughts, towards the
victim.

Neither is it necessary that he had thought about the crime before

committing it. Malice here means only an intention either to kill or
to cause grievous bodily harm.
 Murder

Malice Aforethought (Mens Rea)

In Hyam v DPP (1975) (above, blazing newspaper through

letterbox, it was established that there was a need for knowledge
that serious harm will result from one's actions and a reckless
persistence in the action to amount to an intention to cause that
result)
 Murder

Malice Aforethought (Mens Rea)

Then, in R v Moloney (1985) (above, stepson and stepfather

playing with a shotgun),20 the court set out the two (2) criteria for
determining the existence of 'malice aforethought'. These are that
the accused had an intention either:

(a) to kill any person, or

(b) to cause grievous bodily harm to any person.
 Murder

So as the party die of the wound or hurt within a year and a day
after the same (Actus Reus of Murder)
In England, it has been abolished by the Law Reform (Year and a
Day Rule) Act 1996, ceasing to affect homicides after June 17, 1996.

But it remains the law generally in the Commonwealth Caribbean.

(Not Anguilla) This common law requirement for a period less than
a year and a day relates to the element of causation.
 Murder

Causation
The issue of causation is a very important one, raising a number of
complexities. Among these we find :

(a) intervening and contributory events,

(b) the 'but for' principle, and
(c) contributory cause.
 Murder

Causation - intervening and contributory events

An intervening act or event which breaks the chain of causation, so

that it is the intervening act that is really responsible for the death
of the victim, is called in law by its Latin tag a ‘novus actus
interveniens’ (literally, a new act intervening).
 Murder

Causation

If the accused put poison in the deceased’s drink, but he died of a

heart attack before drinking the poison, the heart attack clearly
intervened to stop the accused from being responsible for the
death (though he could be charged and convicted for attempted
murder).
 Murder

Causation

A, the accused, inflicts an injury on D, the deceased. D, who is a

diabetic, dies from a complication arising from the injury but
exacerbated by his diabetes. The question is, was the diabetes a
novus actus interveniens, or is A liable for murder?
 Murder

Causation

The rule is that A must take his victim as he finds him, also known
as the ‘eggshell skull principle’. See R v Blaue [1975]
 Murder

Causation

The defendant stabbed an 18 year old girl four times when she
refused to have sexual intercourse with him. She was a practising
Jehovah's witness and refused to have a blood transfusion which
would have saved her life.
 Murder

Causation

The defendant was convicted of manslaughter on the grounds of

diminished responsibility and appealed arguing that the girl's
refusal to accept the blood transfusion was a novus actus
interveniens breaking the chain of causation, alternatively that
Holland was no longer good law.
 Murder

Causation

Held:

The defendant's conviction was upheld. The wound was still an

operative cause of death (following R v Smith & R v Jordan) so no
novus actus interveniens and Holland was still good law.
 Murder

Causation

A shoots D and injures him. D subsequently becomes depressed

because of his slow recuperation and commits suicide. Would A be
liable for the death, or was the suicide a novus actus interveniens?
 Murder

Causation

The answer is that the deliberate shooting was an operating cause

of D's death, and A would be liable at least for manslaughter if not
for murder .
 Murder

Causation - ‘but for’ principle

The ‘but for’ principle: In showing that the accused's act caused the
death, where there was some alleged novus actus interveniens, the
prosecution must show that ‘but for’ (that is, ‘were it not for') A's
act, D's demise would not have occurred.

A will not be liable where D's demise would have occurred in the
same way without the intervention. See the leading case of R v
Malcherek and Steel (1981).
 Murder
Causation - ‘but for’ principle
R v Jordan (1956)
The patient was recovering well from a stabbing and the wound had mainly
healed in hospital. He was given a drug to which he was allergic, despite the
hospital knowing of his intolerance. The patient’s reaction to the drug was
such that he died. He was convicted of murder and appealed

Held, his conviction was set aside. The court called his medical treatment
‘palpably wrong’ and said that it broke the chain of causation. The defendant
did not cause the victim’s death, although he would still be guilty of
wounding him.
 Murder
Causation - ‘but for’ principle
R v Cheshire (1991)

The bullet wounds which the defendant had inflicted on the victim had
ceased to be a threat to life. There was evidence that the victim’s death was
caused by the tracheotomy negligently performed by the doctors so that it
narrowed his windpipe and caused asphyxiation. He was charged and
convicted of murder, and appealed to the Court of Appeal.
 Murder

Causation - ‘but for’ principle

R v Cheshire (1991)

Held, his conviction was confirmed. The test was:

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
causing death, that they regard the contribution made by his acts
as insignificant.
 Murder

Causation - ‘but for’ principle

R v Smith (1959)
In the course of a fight between two soldiers of different regiments, the
accused stabbed the victim twice with a bayonet. One of the victim’s
comrades, trying to carry him to the medical reception station, twice tripped
and dropped him. At the medical station, the officer who was busy with
other cases did not realise that one of the wounds had pierced a lung and
caused haemorrhage. He gave the victim treatment that was found to be
thoroughly bad and might well have affected his chances of recovery. There
was evidence that if the victim had received immediate and different
treatment he might not have died. He was convicted by the jury and
appealed.
 Murder

Causation - ‘but for’ principle

R v Smith (1959)

Held, he was rightly convicted, the court saying:

If at the time of death the original wound is still an operating and a
substantial cause, then the death can properly be said to be the result of the
wound, albeit that some other cause of death is also operating.
 Murder

Causation – Contributory cause:

The cornerstone of the law of causation is that the prosecution must show
that the defendant's act was a 'substantial and operating cause' of the harm.
The accused's act need not be the sole cause, or even the main cause, but
the act must be a substantial cause. The accused's act in contributing to the
death must not be so minute that it will be ignored under the de minimis
principle. The accused's wrongful act is weighed alongside any supervening
events and it is for the jury to decide whether or not the supervening events
are the true cause of the death.
 Murder

For ease of reference and without taking anything away from the
classic definition, we can simply say that murder is

the killing of a human being by another human, under the

Queen’s peace with malice aforethought

bearing in mind that death no longer need occur within a year and
a day and bearing in mind that malice aforethought simply means
intention.
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