Aveneu Park, Starling, Australia

Charge is not a reasonable creature in rerum natura.

Charge

 

As there are three deaths,
Andrew is likely charged with murder. However, for a murder conviction, there
has to be unlawful killing of a reasonable creature in rerum natura under
the Queen’s peace, with malice aforethought, by someone of sound mind and at
the age of discretion1.

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Actus Reus

 

Status of victims

To begin, Andrew’s liability
stems from the acts of: pulling and kicking Bettina, kicking the foetus, and striking
Crispin in the head. His actions were evidently not in a situation of self-defence
considering he had acted offensively towards Bettina first and considering Crispin’s
good intentions of breaking up the fight. Thus, Andrew’s actions were not justifiable
and the actus reus of murder
requiring killings to be under the Queen’s peace is satisfied given the domestic
setting.

 

Bettina and Crispin certainly qualify
as being reasonable creatures in rerum natura. However, it is acknowledged
under sections 58 and 59 of the Offences Against the Person Act 1861 and Paton v British Pregnancy Advisory Service Trustees2 that
a foetus is not a reasonable creature in rerum natura. Applying R v Poulton3, Andrew can be liable for murder only if the
foetus was expelled from the womb, functioning and breathing
independently of the mother, and dies later because of injuries inflicted while
in the womb as demonstrated in Attorney General’s Reference
(No 3 of 1994)4. Without fulfilling
those requirements, the victim being a viable foetus, which is likely in the
scenario, would not satisfy the actus
reus of murder but a lesser offense.

 

Factual causation

Applying the ‘but for’ test in R v White5,
neither Bettina nor the foetus would have died but for the internal bleeding and
complications of miscarriage caused by Andrew’s actions of pulling Bettina causing
her fall and kicking her in the stomach where the foetus is most vulnerable.
Hence, Andrew’s actions factually caused Bettina’s and the foetus’ death.

 

It may not
necessarily be said that Crispin would not have died but for Andrew’s actions
when the facts show the aneurysm could burst at any time. However, unlike White, Andrew’s actions were consequential to the outcome
when the aneurysm was more likely to burst if Crispin was under physical
strain. Applying R v Dyson6, a case
where the victim was already dying but died sooner as a result, Andrew’s
intervention still accelerated Crispin’s death. In effect, factual causation
can be established.

 

Legal causation

It is clear from R v Hughes7
that Andrew’s violent actions contribute
to Bettina’s and the foetus’ death in a significant way that is more than de minimis. Further, R v Dalloway8
shows that Andrew’s acts were culpable offences constituting grievous bodily
harm and the outcome was arguably avoidable, which contribute to the legal cause.
As it was known to Andrew that Bettina was pregnant, the egg-shell skull rule
applies nonetheless and the remoteness-foreseeability argument may not assist
Andrew’s case, such as in Dulieu v White9.

 

On the facts that Bettina
called the ambulance, had the miscarriage a few hours later and died the next
day, a possibility of medical treatment intervention arises. Applying R v Jordan10,
it is unlikely that any doctors’ actions would break the chain of
causation especially since neither Bettina’s nor the foetus’s initial injury would
be largely healed in such short duration11.
Therefore, Andrew’s actions are still the operative cause. Further, R v Smith12
shows that even if bad treatment was given, Andrew would still be
liable unless there was palpable wrong13.
Hence, legal causation is likely satisfied for Bettina and the foetus.

 

As for
Crispin, it can be contended from Hughes that Andrew’s
role is more than insubstantial when his actions placed Crispin under physical
strain that led to the aneurysm bursting. However, Dalloway
shows that the outcome was not exactly avoidable when Crispin’s death could happen
at anytime if placed under physical strain.

 

Thus, an issue arises whether Crispin’s pre-existing aneurysm counts as
novus actus interveniens. Applying R v Hayward14, a case similar to
Crispin, Andrew would still be liable despite the vulnerability being unknown
to him or even Crispin. Further, the case suggests that physical contact, such
as Andrew striking Crispin in the head, is not crucial for liability and simply
causing distress, fear or physical strain is satisfactory15.
In effect, Andrew would be liable even if a person of reasonable fortitude may
not have died from his conduct.

 

Mens Rea

 

On to the
question of mens rea, there has to be
direct or indirect intention to kill or cause grievous bodily harm, malice
aforethought, for a murder conviction16.

 

Direct intention

Direct intention was
defined in R v Mohan17 as the decision
to bring about a particular consequence whether desired or not18. Applying
Cunliffe v Goodman19, there is some support
that the foetus’ death was Andrew’s aim. For instance, the foetus’ death is a
foreseeable outcome of kicking a pregnant woman in the stomach where the foetus
is most vulnerable. Thus, foresight could mean greater probability of direct
intention according to R
v Hancock & Shankland20.
Further, Andrew carrying out his acts knowing Bettina was pregnant can be
evidence of Andrew’s motive to harm the child that is not his. As held in R v Hales and another21,
motive can be evidence of intention.

 

There could be
implied intention in Bettina’s case according to R v Rahman22 if Andrew
intended to cause grievous bodily harm that led to her death. There is also possible
motive from the fact that Bettina revealed she was unfaithful to Andrew. Moreover,
grievous bodily harm being a foreseeable consequence of kicking a pregnant
woman in the stomach may be evidence of intent.

 

In Crispin’s
case, implied intention is possible when motive is considered, as Crispin was
the man Andrew’s wife was unfaithful with23. However,
Bettina’s and the foetus’ cases differ significantly from Crispin’s. Firstly, there
was possible indication of pre-planning when Andrew left the house for an hour.
Secondly, there was sustained unlawful force of kicking where most damage could
occur to the victims. As for Crispin, the facts show no evident pre-planning,
when Andrew only arrived to find Crispin in the house, but a single unmeasured
attack without an offensive weapon. Hence, the argument for direct intent is
less convincing in Crispin’s case.

 

Indirect intention

Nonetheless,
the outcome has to be definite for direct intention. If it were obscure that Andrew’s
actions would definitely cause death or grievous bodily harm to the victims, indirect
intention can be established by the R v Woollin24
test. For Bettina, at least grievous bodily harm is virtually certain from
being kicked in the stomach several times when pregnant. Further, it is quite
virtually certain that the foetus could die or suffer grievous bodily harm from
a serious fall and from Andrew’s kicks.  Therefore,
internal bleeding and miscarriage leading to death was unavoidable from
Andrew’s actions and should be personally foreseeable. For Crispin, there is
high risk of serious injury from being struck in the head with an ashtray;
therefore, grievous bodily harm was virtually certain. Nonetheless, if satisfied that Andrew
appreciated the risk as a virtual certainty, the jury may choose to find
intent in the victims’ cases even if it was not Andrew’s` purpose25.

 

Transferred
mens rea

It
is highlighted in R v
Moloney26
that specific intent is necessary for murder. Thus, the issue arises regarding whom Andrew’s
intent was aimed. If intent was aimed at Bettina, establishing mens rea for a murder conviction is less
concerning. If intent was aimed at the foetus, Andrew may still be liable for
murder if the transferred malice doctrine applies. Considering the scenario
that Andrew intended to cause death to the foetus and also caused death to
Bettina as a result, R v Pembliton27
shows that Andrew can still be liable under the doctrine since the intended
crime was the same as the crime that occurred. Further, it is distinct from AG’s Ref 28 since the foetus was not yet
independent from the mother and there was no double transfer. Thus, intent
aimed at the foetus can be transferred to the Bettina, and Andrew may still
have the mens rea for murder.

 

Concurrence

 

The
transaction principle holds that the actus
reus and mens rea for murder must
coincide. Thus, several issues arise regarding Bettina and the foetus. According
to Fagan v Metropolitan Police Commissioner29,
Andrew’s acts of pulling Bettina causing her to fall and then kicking her can
be treated as a continuing act30. Further,
R v Miller31 holds
that the requisite mens rea for conviction
only has to be present at any stage of the course of conduct. Hence, despite it
being impossible to say precisely which act killed the foetus, Attorney General’s Reference (No 4 of 1980)32 shows
that as long as requisite mens rea for
the conviction was present, Andrew can be guilty irrespective of the
transaction principle.

 

Partial defences

 

Since both actus reus and mens rea can be established, Andrew may
attempt using the partial defences of loss of control or diminished
responsibility to reduce the murder sentence to voluntary manslaughter in
Bettina’s and Crispin’s cases.

 

Loss of
control 

The
requirements under section 54 of the Coroners and Justice Act 2009 must be
satisfied to use this partial defence. Firstly, there must be a loss of
self-control. Application of R v Jewell33
suggests that Andrew’s mere violent behaviour in response to Bettina’s provocations
would not suffice. Further, R v Mustafa Gurpinar34 shows that even if Andrew had a sudden explosive
reaction in the heat of the moment, seeing Bettina consoled by Crispin, it
would not constitute loss of self-control. One may counter the defence on the
possibility of pre-planning in Bettina’s and the foetus’ cases when Andrew left
the house after the provocations and acted violently after returning. If there
is satisfactory evidence on pre-planning, R v Thornton35
and R v Ahluwalia36
show the defence will not be available to Andrew.

 

Secondly,
there must be a qualifying trigger. Since Andrew and Bettina were married for
seven years and only had a difficult last six months, there is unlikely fear of
serious violence on Andrew’s behalf37. One
may question whether Bettina’s provocations or infidelity have grave character that
gave Andrew “a justifiable sense of being seriously wronged”38. Applying R v Doughty39,
it is not enough to argue that the Andrew’s circumstance is of grave character
when an ordinary person would think otherwise. Moreover, ordinary stresses in
life, such as being provoked, will not suffice as justifiable and sexual
infidelity, according to R v Clinton40, is disqualified as a trigger. Thus, Andrew is likely to
fail this requirement.

 

Though Andrew
will be treated using the expected degree of tolerance and self-restraint based
on his sex and age, he may argue that he is particularly sensitive in the circumstance
of his clinical depression and the fact that he has recently been prescribed
medication41.
Further, it is notable that if Andrew had evidently killed Bettina or Crispin
out of revenge, such as Thornton, the defence
would be lost42.
Nevertheless, it is unlikely for Andrew to have the defence of loss of control
when the first two elements were clearly not satisfied.

 

Diminished
responsibility 

In order for
the defence to succeed, requirements under section 2 of the Homicide Act 1957 must
be fulfilled. Firstly, it was held in R v Byrne43
that Andrew’s state of mind has to be so different from the ordinary that it is
abnormal. Drawing upon R v Gittens44
and R v Seers45,
Andrew’s clinical depression would sufficiently count as abnormal mental
functioning.

 

Secondly,
Andrew’s clinical depression must come from a source. One may note that acute
intoxication does not count as a source46.
Hence, Andrew may not rely solely on intoxication by alcohol or prescribed
drugs for a defence of diminished responsibility. Rather, medical experts need
to show that his clinical depression is a recognised medical condition47.

 

Thirdly, it
must be questioned whether Andrew’s clinical depression substantially impaired
his ability to understand the nature of conduct, form a rational judgment, or
exercise control48.
According to R v Lloyd49 and R v Golds50,
the impairment caused by Andrew’s depression does not need to be fully
explanatory but only more than minimal. Thus, it is possible, if substantiated
with medical evidence, that his depression together with medication and alcohol
impaired his ability to reason and exercise control.  Note, however, that satisfactory evidence of
pre-planning may counter the argument on substantial impairment of ability,
such as in R v Campbell51.

 

Finally, a
causal link must be established between Andrew’s depression and his conduct in relation
to the outcome. Applying R v Gittens52, the
defendant with depression could still benefit from diminished responsibility
even when they took prescribed medication and drank at the time of the offence53.
Further, R v Dietschmann54 holds that
intoxication from alcohol and medication may help fuel Andrew’s behaviour that
led to the deaths. Therefore, if Andrew’s depression were the primary factor
that substantially impaired his ability, he would still have the defence without
having to show that he would have killed when sober55.

 

Nonetheless,
it is possible that Andrew may benefit from the defence of diminished
responsibility if there is sufficient medical evidence, no pre-planning on
Andrew’s part, and the jury allows the defence. In effect, Andrew may have his
murder sentence for Bettina and Crispin reduced to voluntary manslaughter under
section 2(3) of the Homicide Act 1957.

 

Verdict

 

Though the
foetus fails to qualify as a reasonable
creature in rerum natura for a
murder conviction, the actus reus and mens rea for a lesser offense could
still be established. Under section 2(2) of the Infant Life (Preservation) Act
1929 and section 6(2)(b) of the Criminal Law Act 1967, Andrew would be guilty
of child destruction for killing a viable foetus. As for Bettina and Crispin, both
actus reus and mens rea for murder could be established. However, Andrew will not
be guilty of murder but voluntary manslaughter under section 6(2)(a) of the
Criminal Law Act 1967 as a result of the defence of diminished responsibility.
Therefore, rather than a mandatory life sentence for murder for the three
victims’ deaths, Andrew may have a maximum sentence of life imprisonment or a
lesser sentence if the judge imposes56. 

1 Sir Edward Coke, Institutes of the Laws of England (E
& R Brooke 1797) 47

2 1979 QB 276

3 1832 5 C & P 329

4 1997 3 All ER 936 shortened to AG’s Ref

5 1910 2 KB 124 shortened to White

6 1908 2 KB 454

7 2013 UKSC 56 shortened to Hughes

8 1847 2 Cox 273 shortened to Dalloway

9 1901 2 KB 669

10 1956 40 Cr App R 152

11 ibid

12 1959 2 QB 35

13 op cit n Jordan

14 1908 21 Cox 692

15 ibid

16 op cit n __

17 1975 2 All ER 193

18 ibid 198

19 1950 2 KB 237

20 1985 3 WLR 1014

21 2005 All ER (D) 371

22 2008 UKHL 45

23 op cit n Hales

24 1999 AC 82

25 ibid

26 1985 AC 905

27 1874 LR 2CCR 119

28 1997 3 All ER 936

29 1969 1 QB 439

30 ibid 440

31 1983 2 AC 161

32 1981 2 All ER 617

33 2014 EWCA Crim 414

34 2015 EWCA Crim 178

35 1996 1 WLR 1174 shortened to Thornton

36 1993 96 Cr App R 133

37 Coroners and Justice Act 2009, s 55(3)

38 ibid, s 55(4)(d)

39 1986 83 Cr App R 319

40 2012 3 WLR 515

41 op cit n __, s 54(3)

42 op cit n __, 54(4)

43 1960 2 QB 396

44 1984 79 Cr App R 272

45 1984 79 Cr App R 261

46 R v Dowds 2012 3 All ER 154

47 Homicide Act 1957, s 2(1)

48 ibid, s 2(1A)

49 1967 1 QB 175

50 2015 WLR 1030

51 1997 1 Cr App R 199

52 1984 79 Cr App R 272

53 ibid

54 2003 1 AC 1209

55 R v Hendy 2006 EWCA Crim 819

56 Infant Life (Preservation) Act 1929, s 1(1)

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