CRIMINAL LAW TUTORIAL 1 ACTUS REUS

STATE AFFAIRS CASES James has been drinking heavily at home. His wife, Jessie, is highly annoyed at his behaviour and so telephones a friend of hers in the police. The police arrive at James s home and carry him out to the street where they arrest him and subsequently charge him with being found drunk on highway . Discuss his criminal liability. How to answer? 1. Issue 2. Law/Related cases 3. Application Issue - who s suing whom on what basis? James is charged with being found drunk on highway. However, he claimed that his action was involuntarily as he was initially drunk in his own private place; house and was carried out to the street by the police. The issue beforehand is a state matter and in relation to police. Related law and cases Winzar (1983) The defendant had been admitted to hospital on a stretcher. Upon examination he was found to be drunk and was told to leave. Later he was found in a corridor of the hospital and the police were called to remove him. The police officers took the defendant outside onto the roadway, then placed him in a police car and drove him to the police station where he was charged with "being found drunk in a public highway". The defendant was convicted, and appealed on the ground that he had not been on the public road of his own volition. The Divisional Court upheld the conviction holding that all that was required for liability was that the defendant should be perceived to be drunk whilst on a public highway. There was no need for the court to have any regard as to how he came to be there. Application In the case of Winzar, in brief the court highlight three requirements for the person to be convicted as drunk in highway namely; 1. The person is in public place or a highway 2. He is drunk 3. In those circumstances he is perceived to be there and to be drunk Applying the fact to James s case, he is in the public place which is the in the street, he is drunk and perceived as drunk in highway. There is no need for question on how he gets there.

OMMISSION / FAILURE TO ACT Matilda accidentally starts a fire in the shop where she works. She rushes outside and from her position of safety sees Norman, the shop owner, trapped at an upstairs window. Matilda has always dislike Norman and neglects to call the fire-brigade. Norman dies in the fire. Discuss Matilda s criminal liability. How to answer? 1. Issue 2. Law/Related cases 3. Application Issue - who s suing whom on what basis? Can an accused be convicted of murder/manslaughter if they fail to take steps to prevent the death of the victim in the hope that the victim would die? Does Matilda is guilty for omissions not trying to limit the effect of the fire to the house and to call the fire-brigade? Whether Matilda is guilty for arson? Whether Matilda is responsible for murder/manslaughter - homicide? Law/Related cases ARSON & CRIMINAL DAMAGE R v Miller (1983) The defendant had been squatting in a house and fell asleep on a mattress smoking a cigarette. The defendant was awoken by the flames, but instead of putting the fire out, he simply got up and went into another room where he found another mattress, and went back to sleep. As a result, the house was substantially damaged by fire, and the defendant was convicted of criminal damage. The House of Lords held that once the defendant awoke and realised what had happened, he came under a responsibility to limit the harmful effects of the fire. The duty and responsibility arises the moment he sees the fire. The defendant's failure to discharge this responsibility provided the basis for the imposition of liability. Application The fact that Matilda accidentally causes fire to the shop, she has a duty and responsibility to limit the effect of it once the fire occurs. Failure to act may lead her to be liable for criminal damage/arson.

MANSLAUGHTER R v Evans [2009] The appellant was convicted of gross negligence manslaughter along with her mother in relation to the death of her 17 year old sister, Carly Townsend who died of a heroin overdose. The appellant was 8 years older than her sister. The appellant, her mother and Carly all had a history of heroin addiction. Carly had just been released on licence from a detention and treatment order and a condition of the licence was that she resided at her mother's house. The appellant moved in with her mother after her boyfriend was sent to prison. The appellant bought some heroin and gave it to Carly. Carly self injected the heroin and then developed symptoms which the appellant, from her own experience, recognised as being consistent with an overdose. The appellant and her mother decided not to seek medical assistance for fear of getting into trouble. Carly died. The appellant appealed against her conviction for gross negligence manslaughter on the grounds that the judge had left it to the jury to decide whether the appellant owed a duty of care and that it was wrong to leave this to the jury where this would involve an extension of principles relating to duty of care. Held: The judge was wrong to leave the jury to decide the issue of duty of care. The existence, or otherwise, of a duty of care or a duty to act, is a question of law for the judge: the question whether the facts establish the existence of the duty is for the jury. However, the mis-direction did not render the conviction unsafe. The appellant's duty of care arose not out of her familial relationship, nor from her actions in seeking to care for Carly, but from her supplying the heroin. She had in effect created a dangerous situation and failed to take action to reduce the risk by summoning medical assistance which would have saved her. Lord Chief Justice: "The duty necessary to found gross negligence manslaughter is plainly not confined to cases of a familial or professional relationship between the defendant and the deceased. In our judgment, consistently with Adomako and the link between civil and criminal liability for negligence, for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life will normally arise." Application The similarity between the case of Evans and Matilda is both people failed to call relevant parties to seek for remedies and help. They sit and do nothing. This omission had cause the death of the third party and this lead to liability for murder/manslaughter.

John and his girlfriend, June, go camping for the weekend. June becomes extremely ill and lapses into unconsciousness. John, who objects to doctors on religious grounds, refuses to summon help; instead he prays all night for June, June dies. Discuss John s criminal liability. How to answer? 1. Issue 2. Law/Related cases 3. Application Issue Does John is liable for the death of June? Does John is responsible to take care for June and seek for medical assistance to reduce June s illness? The case is related to the issue of assumption of responsibility to take care others and the failure to act. Law/Related cases OMISSION & ASSUMPTION OF CARE (W/O SPECIAL RELATIONSHIP) R v Stone and Dobinson [1977] The defendants (common law husband and wife) were of low intelligence. One day they were visited by S's sister Fanny and took her in providing her with a bed but over the following weeks she became ill. She did not eat properly, developed bed sores, and eventually died of blood poisoning as a result of infection. The defendants had not obtained any medical assistance for Fanny although they had known that she was unwell. The defendants were convicted of manslaughter. The Court of Appeal held that the defendants had been under a common law duty to care for Fanny. This duty had arisen from their voluntarily assuming the responsibility for looking after her, knowing that she was relying on them. The defendants' failure to discharge this duty was the cause of the victim's death. Application It is clear that there is no special relationship of blood and marriage between June and John. However, there is an assumption of care when John is going out for camping with June. He has assumption responsibility to take good care of June, his girlfriend. When June fall into unconsciousness and become ill, he should have sought medical assistance to remedy the illness. Instead he does nothing and only pray for miracle to happen. His action of only praying is considered as a gross negligence and it leads to the death of June.

Mary and John have an argument. Mary chases John up a twenty-floor building and then pushes him off the top. As John is falling past the fifteenth floor window, Susan leans out and shoots him. John dies before he hits the ground. How to answer? 1. Issue 2. Law/Related cases 3. Application Issue The case is in relation to the principle of causation. The issue is whether Mary is liable for the death of John. Does Mary is in fact cause the death of John? Secondly, does Susan s action which a third party is amounted as a novus actus which break the chain of causation? Does Susan is in law cause the death of John? Law/Related cases R v White [1910] The defendant put potassium cyanide into a drink for his mother with intent to murder her. She was found dead shortly afterwards with the glass, three-quarters full, beside her. The medical evidence showed that she had died, not of poison, but of heart failure. The defendant was acquitted of murder and convicted of an attempt to murder. Although the consequence which the defendant intended occurred, he did not cause it to occur and there was no actus reus of murder. R v Smith [1959] The defendant was involved in a fight with a fellow soldier during which he stabbed the victim, resulting in the victim being taken to the medical station where he died about one hour later. On being charged with murder the defendant argued that the chain of causation between the stabbing and the death had been broken by the way in which the victim had been treated, in particular the fact that: (a) the victim had been dropped twice whilst being carried to the medical station; (b) the medical officer, who was dealing with a series of emergencies, did not realise the serious extent of the wounds; and (c) the treatment he gave him was "thoroughly bad and might well have affected his chances of recovery". The defendant was convicted of murder and appealed unsuccessfully. The court held that the defendant's stabbing was the "operating and substantial cause" of the victim's death. In this case the victim clearly died from loss of blood caused by the stab wounds inflicted by the defendant. Application The causation in fact is only applicable if there is a causal link between the accused action and the death of the victim. In John s case, the accused pushed the victim off from 20th floor. Logically, a fall from that particular height will cause fatal. However, the presence of Susan in this case is questionable whether as novus actus to the chain of causation. The action of Susan releasing the shot it is in fact cause the death of John. Due to insufficient information and evidence, it is unfair for the court to label Susan as a murderer. We do not know the whether she has the intention to kill John or merely recklessly released the bullet. Plus,

as the medical evidence is absence, we do not know whether the death was in law caused by the shot. It may be caused by the heart attack of the person itself. We do not know. In fact, the action of Mary herself can cause John s death. The chance is very slim for a person to survive when falling from 20th floor. The novus actus is not strong enough to break the chain of causation from the real desired consequences.

Cecil stabs his girlfriend, Sara. On reaching the hospital, Sara refuses treatment, saying that she prefers to rely on ancient African herbal remedies. She dies soon afterwards. The coroner s report states that Sara was unusually prone to haemorrhaging. A report from an independent doctor suggests, however, that her life could be easily have been saved had the police not been negligent in failing to notice the haemorrhaging at an early enough stage. There is also evidence that treatment was delayed because the ambulance taking Sara to hospital had been hit by a car driven by a motorist who was later convicted of dangerous driving. Firstly, identify the parties. 1. Cecil and Sarah - criminal Cecil stabs Sarah and caused the haemorrhaging which eventually become the initial factor leading to the death of Sarah. 2. Sarah and police - tort The police failure / negligence in noticing the haemorrhaging at an early stage which reduce the potential for Sarah s life to be saved. 3. Sarah and ambulance - tort The delay of the ambulance to reach hospital that worsen the haemorrhaging. 4. Sarah and motorist - tort Whether the motorist break the chain of causation? Issue 1. The issue before the court is on whether Cecil is liable for the death of Sarah. Does she is in fact and in law cause the death? 2. Does the action of the motorist hitting the ambulance act as an supervening act/action of third party in which break the chain of causation? Related law/cases R v Smith [1959] The defendant was involved in a fight with a fellow soldier during which he stabbed the victim, resulting in the victim being taken to the medical station where he died about one hour later. On being charged with murder the defendant argued that the chain of causation between the stabbing and the death had been broken by the way in which the victim had been treated, in particular the fact that: (a) the victim had been dropped twice whilst being carried to the medical station; (b) the medical officer, who was dealing with a series of emergencies, did not realise the serious extent of the wounds; and (c) the treatment he gave him was "thoroughly bad and might well have affected his chances of recovery". The defendant was convicted of murder and appealed unsuccessfully. The court held that the defendant's stabbing was the "operating and substantial cause" of the victim's death. In this case the victim clearly died from loss of blood caused by the stab wounds inflicted by the defendant.

Comment [f1]: Thin skull rule? Comment [f2]: Police does not have expertise in medical issue Comment [f3]: Novus actus?

SIDE NOTES Causation in fact - but-for causation: the defendant is a but for cause of a result, if, but for the defendant act, the result would not have occurred. Causation in law Have two requirement: 1. The defendant act must be a substantial cause of the result. It must contribute to the end result to a significant extent; not be a slight or trifling link. 2. The defendant s act must be an operating cause of the result. The most common way for the defendant to deny that his or her act was an operating cause is to argue that there has been a novus actus interveniens which break the chain of causation. This means the act of someone else has taken over responsibility for the chain of events and the defendanty is no longer responsible. Novus actus interveniens: A free voluntary act of a third party which renders the original act no longer a substantial and operating cause of the results. 1. Must be a free, voluntary and informed act 2. It renders A s act no longer a substantial and operating cause. Application In this case, the actus reus of Cecil of stabbing Sarah has caused injuries to her which led to the haemorhagging and finally Sarah is dead. However, it is argueable whether she is in law cause the death of Cecil. In order to impose liability to Cecil in the causation in law we have to prove whether the action of the defendant was a substantial and an operating cause of the result. On the issue of substantiallity, we have to consider the principle of thin skull rule since Sarah is unusually prone to haemorrhaging than a normal person. The stab has done significant effect to the body and cause lot of bleeding and this may lead to her death. The second requirement is it must be an operating cause of the result. There are several other factors that also contribute to the death of Sarah. One of it is the failure of the police in noticing the haemorrhaging at the early stage. However, we have to disregard this matter as police does not has the expertise in medical issue. It is unreasonable to impose liability to someone who is unaware of how severe condition is. Plus, it is submitted that the ommission a thrid party cannot break the chain of causation. This is because an ommission cannot render the defendant s act no longer an operating and substantial cause. If the defendant stabbed the victim, then because of the ommission the police not noticing the haemorrhaging at the early stage she died then it is said that the defendant to have caused the death. The next factor is the delay of ambulance in reaching the hospital to treat Sarah. Ambulance was hit by a motorist which is later convicted for dangerous driving. It is argueable here whether the presence of the motorist in hitting and subsequently cause the delay of the ambulance to reach the hospital may amount or considered as a novus actus interveniens / which break the chain of causation between Sarah and Cecil s action. However, we have to look at the degree of possiblity and the strength of the novus actus in rendering the initial act as no longer a substantial and 8

operating cause. Does the delay matter so much up to the extend it become the substantial and operating cause to the death of the Sarah? Does the novus actus is sufficient and so strong to cause the death of Sarah and if it has never taken place that the death of Sarah would be not possible? In the case of Smith the court held that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound. If the original wounding is merely settling in which another cause operates it can be said that the death does not cause by the wound. Conversely, if the second cause is so overwhelming as to make the original wound is only part of history it can be said that the death does not flow from the wound. The issue of Sarah refusal of accepting the treatment and prefer to take ancient African herbs also acts as one of the factors causing her death. This is related to the case of R v Blue. From the Appeal Court judgment in the case (R v Blaue [1975] 3 All ER 446) Blaue stabbed his victim four times, and medical evidence was that she would have survived had she accepted a blood transfusion, which she specifically rejected in writing. Blaue contended that her refusal was so unreasonable as to be a 'novel intervening act' that broke the chain of causation. Eventhough such a break can happen, as in R v Smith. But in Blaue the Court followed the position in Smith that this will not be the case if the wound caused by the assault is still a 'substantial and operating' cause of injury at the time of death. What this means is that if applied to the case beforehand if Cecil stabs Sarah, and whilst sent to the hospital, refuses treatment, and dies, then Cecil is not liable. But if as in Blaue Sarah refuses immediate treatment on grounds of belief, Cecil is liable. As to Blaue's contention that his victim's beliefs were not reasonable, Lawton LJ stated: "It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death."

Do you agree with the decision of the Court of Appeal that Gemma Evans caused the death of Carly Townsend? Yes. Why? 1. Duty of care She supplied the drug thus the act of supplying comes together with responsibility of any foreseeable impact. 2. Carly is unable to help herself Since she is not capable of helping herself, it is expected that Gemma and her mother to help her. Issue of assumption of responsibility when someone cannot help themselves can be raised. 3. Ommission / Failure to take preventive step which lead to the death of Carly Similar principle with R v Miller, once the person notice there is danger or possibility that the things will go worse the person has a responsibility to take preventive steps avoiding the bad things to happen.

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