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Wednesday 21 December 2011

A pointed a loaded pistol at B, insisting that B hand over the contents of her till. A believed that the pistol was not loaded. As B was emptying the till the pistol went off and B was wounded. A ran out of the shop, running in front of a car driven by C, who had to swerve to miss A. As a result C hit three children at a bus stop. One of the children died as result. Advise A of his criminal liability. What difference, if any, would it make to your advice if B had died from the wound?

Assuming that B is still alive, the prosecution will bring two criminal charges against A. The first charge is malicious wounding contrary to s.20 of Offences against the Person Act 1861. The second charge is assault occasioning actual bodily harm contrary to s.47 of OAPA 1861. The first charge will probably fail. The second will probably succeed. On the other hand, the prosecution will also bring a charge of murder for the child who was killed by C’s car at the bus stop. The charge will probably fail and A will be charged of constructive manslaughter. However, if B had died from the wound, the prosecution will bring charge of murder against A instead of causing grievous bodily harm and assault occasioning actual bodily harm. The charge will probably fail and A will be charged of constructive manslaughter.

In order to convict A in the first charge, the prosecution must prove both the actus reus and mens rea of malicious wounding contrary to s.20 OAPA. The actus rea is wounding: Moriarty v Brooks (1834) and Eisenhower (1983). A voluntarily pulled the trigger and subsequently wound B seriously. No evidence suggests that A was involuntary to do the act. The mens rea is maliciously doing the actus rea. It must be proved that A was aware that his conduct carried a risk of wounding or causing some harm, albeit not serious harm: Mowatt (1967) and Savage and Parmenter (1991). A believes that the pistol was not loaded. He does not desire the consequence of his act. Moreover, his intention was to frighten B in order to take the contents of the till. There is no direct intention to wound B. However, the jury are entitled to find that A intended to wound if they are sure that A was aware that wounding is virtually certain to result from his action: R v Moloney (1985), R v Hancock and Shankland (1986) and R v Woollin (1998). The virtual certainty test for mens rea should be applied here and both the objective test and the subjective test must be satisfied: R v Nedrick. Is grievous bodily harm virtually certain by pointing a gun to a person? Yes. A reasonable man would know pointing a gun to a person is very dangerous and will probably injury the person. Could A anticipate that grievous bodily harm is virtually certain that B will be wounded as a result of pointing the gun to her? It is hard to prove that A could anticipate the consequence because he truly believed that the pistol was not loaded. Therefore, the oblique intention test is fail. A has no oblique intention to do the act. On the other hand, the offence can also be committed recklessly. According to the case of R v G (2003), only subjective test is used for recklessness. Therefore, did A foresee death or grievous bodily harm as highly probable? The answer is argumentative. Henceforth, if the jury is not satisfied beyond reasonable doubt that A committed the actus reus of the offence with the requisite mens rea, A will probably be acquitted.

The second charge is Assault occasioning actual bodily harm contrary to s.47 OAPA. For this offence the prosecution must prove that the defendant committed an assault or battery and that the assault or battery caused actual bodily harm. The actus reus of assault is committed where the defendant causes another to apprehend the application of immediate unlawful violence: Fagan v Mpc (1979), Savage and Parmenter (1991), Venna (1975) and Ireland (1998). B was frightened because A was pointing a gun to B. The actus reus is satisfied. The mens rea is intention or recklessness on the part of John as to causing B to apprehend. A pointed the gun to B with the intention to frighten B to hand over the content of the till. The mens rea is satisfied. B’s injury is likely to amount to actual bodily harm: R v Miller (1954) and the A’s act of assault did cause the actual harm: R v Roberts (1971). Therefore, A will be guilty of assault in respect of B.

The child died. The prosecution will charge A for murder. This is committed where a person, intending to kill or intending to cause grievous bodily harm and in the absence of a defence, unlawfully kills another human being: R v Moloney (1985). The actus reus consists of causing the death and the chain of causation. A ran out of the shop, running in front of a car driven by C. His unlawful act caused death to the child. It is arguable that the car driven by C will break the chain of causation. However, but for A recklessly ran out of the shop, the child would not die. The ‘but for’ test is satisfied: R v White. C did not break the chain of causation. The actus reus is satisfied. The mens rea of murder required proof of an intention to kill or cause grievous bodily harm: R v Vickers (1957). A’s direct intent was to run away from the criminal scene. However, the jury are entitled to find that A intended to wound if they are sure that A was aware that wounding is virtually certain to result from his action: R v Moloney (1985), R v Hancock and Shankland (1986) and R v Woollin (1998). The virtual certainty test for mens rea should be applied here and both the objective test and the subjective test must be satisfied: R v Nedrick. Is death or grievous bodily harm virtually certain by running recklessly on the road? No, not every reasonable man would know running on the road recklessly could cause injury to somebody. Could A anticipate that death or grievous bodily harm is virtually certain that someone will be killed as a result of running recklessly on the road? No, he could not anticipate the child would die because he could not see there were three children at the bus stop. A may not have acted with the mens rea for murder. Therefore, his liability for manslaughter ought to be considered. Constructive manslaughter requires proof that A commits an unlawful and dangerous act which causes the death or another: R v Goodfellow (1986) and R v Newbury (1977) with the intention or recklessness to do the action. Clearly, running on the road is unlawful and dangerous and A foresaw a risk of death or serious harm but not that either consequence was virtually certainty to result. Therefore, A will probably be convicted for Constructive manslaughter.

If B had died from the wound, A will be charged for murder. However, as mentioned above, A did not have the intent to kill or cause grievous bodily harm to B, his major intention was to assault B. A cannot be convicted for murder because there were no direct and oblique intention to kill or cause grievous bodily harm. However, A will be convicted for Constructive manslaughter. Even though A had no direct or oblique intention to do the actus rea, recklessness is also enough for the mens rea in the offence of constructive manslaughter. Nevertheless, we cannot sure whether A foresaw death or grievous bodily harm as highly probable or not. Henceforth, if the jury is not satisfied beyond reasonable doubt that A committed the actus reus of the offence with the requisite mens rea, A will probably be acquitted.

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