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Culpable Homicide, Culpable Homicide (Malaysian law) - Coggle Diagram
Culpable Homicide
Homicide
Actus Reus
- Unlawful killing within any country of the realm any reasonable creature in rerum natura under the King's peace
- Unlawful killing of a human being under the Queen's peace
Mens Rea
Section 1(1) Homicide Act 1957:
- Where a person kills another in course/ furtherance of some other offence, the killing will not amount to murder unless done with the same malice aforethought express or implied is needed for a killing to amount to murder when not done in the course of furtherance of another offence
- Express Malice - Intention to Kill
- Implied Malice - Intention to cause grievous bodily harm (GBH)
Intention
Direct Intention per Mohan (1976):
- A decision to bring about a particular circumstance, whether desired or not
Oblique Intention - Woolin (1998):
- Does not aim to bring about the consequence but it is foreseen
Woolin's Test:
- Was it D's purpose to kill?
Yes:
- There is intention to kill
No:
- Was death/SBH a virtual certain consequence?
Yes:
- Did D know it was a virtual certain consequence?
Yes:
- Jury is entitled to find intetion
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Malice
Express Malice
Express Malice per Moloney (1985):
- Intention to kill a human being
Implied Malice
Implied Malice per Vickers (1957):
- Held: There was infliction of GBH from which malice is aforethought, essential to the crime of murder, might rightly be implied
Hyam (1974):
- GBH - Really serious bodily harm, not just harm that endangers life
- "She realised that it was highly probable that one or more of the inmates would suffer serious bodily harm in consequence of her acts but nevertheless she deliberately chosen to expose them to that danger
Cunningham (1981):
- Facts: no intention to kill
- Held: approved Vickers and Hyam, Hyam - GBH = Really serious bodily harm
Janjua (1999):
- "Really serious bodily harm"
- Inview of the injuries, it was not required but it made no difference
Murder
- A man of sound memory, and of age of discretion,
- unlawfully killeth,
- within any country of the realm
- any reasonable creature in rerum natura under the King's peace
- with malice aforethought either expressed by the party or implied by law
- so as the party wounded, or hurt, etc, die of the would or hurt etc, within a year and a day after the same
Unlawful Killing
- Killing another is unlawful except:
- public or private defence
- misadventure
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The victim
- "Any reasonable creature in rerum natura"
- "Any reasonable creature in the nature of things"
Re A Conjoined:
- Even if she had a useless brain, heart and lungs, she is still alive and it would still be an act of murder if someone purposefully acted as to extinguish that life unless a justification can be shown and English law is willing to recognise
When life begins - Poulton (1832):
- Charge of murder of a child she just delivered.
- Held: "the jury must be satisfied affirmatively that the whole body was brought alive into the world"
- Enoch - the child must be able to breath independently from its mother on its own
- Brain - the child must be wholly in the world, in a living state, to be the subject of a charge of murder
When life ends - Malcherek:
- "...There is it seems, a body of opinion in the medical profession that there is only one true test od death and that is the irreversible death of the brain stem, which controls the basic functions of the body such as breathing
- Bland held that "brain stem death" is the legal definition of death" but this is obiter
Before Birth
Infant Life (Preservation) Act 1929:
- 1(1) Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of an offence, to wit of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life
Abortion:
- Defines "law" relating to "abortion" as offences under S58 - 59 of the Offences Against the Persons Act 1861
- Unless S1 Abortion Act 1967 applies (medical termination
Pre-natal and post-natal - R v Senior (1832):
- Facts: manslaughter by gross negligence by midwife before child has been fully born
- "Giving a child whilst in the act of being born a mortal wound in the head as soon as the head appears and before the child has breathed, will, if the child is afterwards born alive, and dies thereof, and there is malice, be murder"
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