Mimi Jaafar Criminal Law Sample Paper A

Question 1:

R v Cindy

Murder has been defined by Lord Coke as the unlawful killing of a human being under the Queen’s
peace with malice aforethought. In order for the defendant to be charged with murder, the
defendant needs to satisfy the elements of actus reus and mens rea.

The actus reus of murder is the unlawful killing of a human being under the Queens’ peace. The
first element of actus reus is the unlawful killing, it could be said that based on Cindy’s action that
killed Ken indeed it was unlawful as she does not have any legal reasons to kill him. The second
element is human being, any one is a human being except of a foetus in this case Ken is a human
being. The third element of Queen’s peace simply just mean that the defendant is killing the victim
for war or any other reasons to protect the country in which is not the case here. Since murder is a
result crime, the defendant needs to satisfy the element of causation. Causation simply means that
the defendant’s action of the killing or serious harm must have caused the death of the victim and
the prosecution must prove that it is done either through his acts or omissions that caused the
relevant consequences.

There are two types of causation; factual and legal. Factual causation is defined in the case of
White, which provides the BUT-FOR test which questions but-for the defendants’ action would the
relevant consequences occurred anyway. In relation to Cindy’s scenario, but-for Cindy’s action of
hitting Ken several of times in the head he would not have died. Legal causation requires the
defendant to be the substantial and operating cause of death. In Pagett, it is said that the law will
check on the culpability of the defendant before imposing liability. In relation to Cindy’s situation, it
could be said that she is the substantial and operating cause of the death of Ken as there is nothing
in the facts of the scenario, to prove that any third party or medical palpability that break the chain
of causation. Hence it could be said that Cindy has satisfy the elements of actus reus of murder.

The mens rea for murder is malice aforethought which means having the intention to kill or to
commit Grievous Bodily Harm (GBH). Intention has been defined through the case of Vickers, where
it is the defendant’s purpose or objective in acting is the death or GBH of the victim, then the
necessary direct intention will be found. In relation to Cindy’s case, with the voice in her head and
with Ken’s depressing words towards her, it could be said that the moment she picked up the vase,
she formed the mens rea for murder as she definitely wanting to cause serious harm (Saunders) GBH
and at the same time, she hits him several times at the head. Therefore it could be said that Cindy
has satisfied the mens rea of murder. Murder carries a mandatory life sentence should Cindy be
found guilty, however in the scenario, facts suggest that she might have a medical condition or loss
her self-control which will reduce her charged for murder to voluntary manslaughter. Under this
charged there are two special defences that would be available.

The special defences are loss of self-control and diminished responsibility. Loss of self-control
replaced the defence of provocation and substituted the Homicide Act 1957(HA) to the Coroners and
Justice Act 2009 (CJA). The law that was set out in CJA provides that where the defendant kills or is a
party to the killing of another, the defendant is not to be convicted of murder if his acts or omission
in doing so resulted into him losing his self-control, the loss of self-control had a qualifying trigger
which a person of his age and sex with a normal degree of tolerance would have acted in the same
way he did if he would have the same situation as the defendant. The first issue to prove is that the
defendant loss his self-control when doing the act which caused the death of the victim. In relation
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to Cindy’s situation, it could be said that Cindy did lose her self-control when she committed her
actions which caused the death of Ken as she was thinking about his words when she was sitting
down, it was noted that the loss of self-control need not be sudden.

The second element is the qualifying trigger, there has to be qualifying trigger in order for the
defendant to lose his self-control. S.55 of the Act sets outs that the qualifying triggers which are
permitted. These are where the loss of self-control was contributable to the defendant’s fear of
serious violence from the victim against the defendant or another identified person or a thing said or
done which constituted circumstances of an extremely grave character and caused D to have a
justifiable sense of seriously being wronged. Fear of violence was defined in the case Dawes as
serious violence which distinct it from the defence of self-defence which only requires the defendant
to fear violence. In relation to Cindy’s scenario, it could be said that she does not fear any serious
violence. The second element is things said or done or both which constituted circumstances of an
extremely grave character and caused D to have a sense of seriously being wronged. In relation to
Cindy’s case, it could be said that things that Ken said to her made her constituted circumstances of
an extremely grave character which have caused Cindy to have a justifiable sense of seriously being
wronged which explains her actions of ‘hitting him several of times in the head’.

The last element of loss of self-control requires a person of D’s age and sex with the normal degree
of tolerance to have acted in a similar way to the defendant in that situation. In relation to Cindy’s
case, it could be said that any another women having the same age and sex like her would have
acted the same way as she did. This is because the things that Ken said to her would have made any
women and mother like her angry.

The second partial defence that would be available to Cindy is Diminished Responsibility (DR). The
partial defence of DR was laid down in HA 1957 which was substituted to CJA 2009, it provides that a
person who kills or is a party to the killing shall not be convicted of murder if he was suffering from
an abnormality of mental functioning which arose from a recognised medical condition that
substantially impaired his ability to do one or more things and provides an explanation for his acts or
omission.

The first requirement of abnormality of the mind was defined in the case of Byrne, Court of Appeal
(CA) described this as the ‘state of mind so different that of ordinary human being that the
reasonable man would term it abnormal. In relation to the Cindy’s scenario, there is nothing from
the fact that suggests that she has an abnormality of the mind. The second requirement it arose
from a recognised medical condition, from the facts, it states that Cindy is short-tempered, irritable
and was intoxicated from the glass of wine. In the case of Dowds, CA held that voluntary acute
intoxication whether from alcohol or other substance is not capable of raising the defence on DR.
Hence, it could be said that she failed this requirement which if she raise this defence she may
ended up unsuccessful.

In conclusion, based on the arguments presented above it could be said that Cindy is may be guilty
of the murder of Ken. However, as discussed, her conviction may be reduced from murder to
voluntary manslaughter as the facts suggest that she loss her self-control over the words said by
Ken.

R v Luca

Luca may be guilty of attempt of murder of Cindy. The offence of attempt is stated in the Criminal
Attempts Act (CAA) 1981. The Act provides that the defendant needs to do an act which is more than
merely preparatory to the commission of an offence then he will be guilty of an attempt to commit
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that offence. The actus reus under this act requires the defendant do commit an act which is more
than preparatory to the commission of the offence such as in Gullefer where the court held that you
must have gone beyond preparing to be able to satisfy the actus reus. In relation to the scenario, it
could be said that Luca has gone beyond preparing as he puts the poison in Cindy’s tea hence, it
could be said that he satisfy the element of actus reus.

The mens rea of this offence requires the defendant to carry the intention. As Luca, went into
another room and answered the telephone call, he may argue oblique intent. However, CA held in
the case of Walker and Hayles that jury may infer the intention where they are satisfied that the
defendant foresaw the result as virtual certainty. In relation to the scenario, it could be said that he
could foresee that Cindy might have died as a consequences of the poison. Therefore, it could be
said that Luca may be guilty for attempted murder on Cindy.

Question 2:

R v Bilal in relation to Mr Lee’s daughter

Involuntary manslaughter includes all varieties of unlawful homicide, it is different from murder by
the lack of malice aforethought. In order for Bilal to be convicted of Gross Negligence Manslaughter
(GNM), the negligence that he caused must went beyond the mere matter of compensation
between subjects and showed such disregard for the life and safety of others.

The leading case for this is laid down in the Adomako case which states that in order for the
defendant to be charged with gross negligence manslaughter there needs to be an existence duty of
care, the defendant breach that duty which causes death and that breach is so bad that it
constituted to GNM. Duty of care essentially means that the defendant owes a duty of care where
harm caused by his acts were foreseeable. In relation to Bilal’s case, it is clear that he owes a duty of
care to protect anyone who swims at SwimSafe as he is bound by his contract to protect them, such
as in Pitwood, where the court held that the defendant had a duty to close the railway gate, failure
to close it made him negligence under his contractual duty.

The second requirement is breach of that duty. The House of Lords (HL) in Adomako, held that the
ordinary principles of negligence apply in deciding whether the defendant had breached the duty of
care. In relation to Bilal’s case, the question is whether his acts fell below the standards of expected
reasonable man. It could be said that because he was too concern over the issue of his best friend
and girlfriend flirting that yes his acts fell below the standards of expected reasonable man and his
acts breached his duty. The third requirement is whether the breached has caused death of the
victim. For this the normal rules of causation applies to the defendant. There are two types of
causation; factual and legal. Factual causation arose from the case of White where the court held the
but-for test. In relation to this case, but-for Bilal being so careless, Mr Lee’s daughter would not gave
died. The legal causation requires the defendant to be the operating and substantial cause of death
of the victim as stated in Pagett.

In relation to Bilal’s case it could be said that he is the substantial and operating cause of the death
of Mr Lee’s daughter as there is no facts of the case to suggest that there is a break in the chain of
causation. Hence, it could be said that Bilal’s breach of duty caused the death of the victim. The last
requirement requires the defendant’s breach to be sufficiently serious that it constituted as gross
negligence. The question is for the jury to decide whether the defendant’s acts were grossly
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negligence. In Adomako, the defendant’s act were grossly negligent as he did not appreciate that the
tube had been disconnected even when the patient had turned blue. In relation to Bilal’s case, his
action of ignoring Mr Lee calls to help could be deemed as grossly negligent as stated in the case of
Litchfield where the defendant’s knowledge and experience allowed him to recognise the risk. As he
works as a life guard at SwinSafe it could be argued that Bilal knows the consequence if he fails to
help anyone with the risk of drowning. Therefore it could be said that his acts was grossly negligent
and he may be charged with involuntary manslaughter as to GNM.

R v Bilal – relation to James

Unlawful Act Manslaughter was defined in the case of DPP v Newbury and Jones where the court
stated that there is 4 requirements that the defendant needs to satisfy in order to be found guilty of
the offence. The four elements are; the defendant intentionally (voluntarily) did an act, the act was
unlawful, the unlawful act was dangerous and the unlawful act caused the death of the victim.

The first element requires the defendant’s act was intentional which results in the death of a
person. This refers to intention with regard to the doing of the act, not to the consequences that
flow from it. In relation to Bilal’s case, it could be said that when he saw James flirting and kissing his
girlfriend he has already form the intention of committing an act however there is no evidence that
suggest that he wanted to kill James. The second requirement requires the defendant’s act to be
unlawful, in the case of Franklin, it has been settled that the unlawful act must be criminal however,
not necessarily violence. For this purpose, it requires the defendant to have committed a base
offence. In relation to the scenario, it could be said that by punching James, Bilal has committed a
common law offence of battery. Battery is defined as the application of unlawful force on another
either intentionally or recklessly.

The actus reus of battery requires the defendant to commit an application on force (Fagan v MPC).
In relation to Bilal’s case it could be said that he has satisfied this element by punching James in
which could be constituted as the application of force. The mens rea of battery requires the
defendant to either have the intention or was reckless as to his actions. Intention has been defined
in Moloney as the aim or purpose of the defendant. In relation to Bilal’s case, it could be said that it
was him aim or purpose to punch James as he was mad that he kissed his girlfriend. As the base
offence is established, it is acknowledged there is an act rather than an omission in this case. The
third element requires the act to be dangerous, essentially, no one is expected to die, and therefore
the base offence must be considered dangerous in law.

In relation to Bilal’s case, as the base offence is common law of battery, it could be said that the
base offence is not a serious harm. As in Church Edmund J stated that the act unlawful act must be
such as all sober and reasonable person would recognise it as dangerous. In relation to Bilal’s case, it
could be said that a sober and reasonable man would not have recognise common law of battery as
an unlawful act, this test is merely objective.

What type of harm must the defendant foresee? The case of Dawson, CA held that the type of
harm likely to result from the unlawful act must be of physical. In relation to this scenario, by Bilal
punching James it could be said that he could foresee some physical harm would occur. In
conclusion, it could be said that Bilal may be guilty for the involuntary manslaughter for Mr Lee’s
daughter, however for James, it could be argued that his base offence is not unlawful enough to be
charged with UAM.