The Mens rea for murder at common law is ‘malice aforethought’. This consists.
i. Express Malice - Express malice is the specific intent to kill another human being.
ii Implied Malice: Implied Malice includes:
- intent to inflict grievous bodily harm upon another.
- intent to act in a manner that shows extreme reckless disregard for the value of human life.
- intent to commit a felony that results in the death of another human being.
- intent to resist a known, lawful arrest.
Read the Criminal Code, section 316 once again and also the Renal Code section 221 (1).
Identify the specific intent indicated in 316 (1) and (4); then 316 (2), (3), (5) and (6). Section 316 is not to be read in isolation. See also section 24: Intention: motive, which states: “subject to the express provision of the Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omissions, which occurs independently of exercise of his will, or for an event , which occurs by accident.
Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in while or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regard criminal responsibility.
This section has too often been repeated and should now be part of you.
There is not much difference between “Malice aforethought” (common law) and the intention for murder (section 316 and 24) of the Criminal Code applicable in Nigeria.
Accordingly the intention for murder may be expressed as:
Intention to cause the death or grievous bodily harm to any person, whether such;
Person is the person actually killed or not.
Knowledge that the act which causes death will probably cause the death of, or
Grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or by a wish that it may not be caused.
Deliberate cruel act committed by one person against another where death occurs as
the result of a voluntary act of a the accused, which was intentional and unprovoked.
Malice is implied in all cases where a man wilfully administers poison to another .
Lays poison for another and either he or another takes it and dies.
Illustration:
Kuti knowingly gives poison to Ade to administer as a medicine to Bayo.
Ade neglects to do so. His child, Femi, accidentally gives it to Bayo, or other unconscious agent.
Kuti is as guilty as if he administered the poison by his own hand.
Bala intended to kill his wife, Mary. Mary is carrying their body on her back. Bala pursues her and inflicts match cuts on her back. The child fell and died of head injuries
There is an intention to kill, or cause grievous harm to some one. Bala therefore is criminally responsible for the death of the child. See Basoyin v. AG (1966).
This is in line with a principle of law that a man intends the natural consequences of his act of omission. See R v. Nungu (1953); R v. Adu (1955)
Activity
See this principle of law again that, a man intends the natural consequences of his act or omission” Is this always true?
Attempt to justify the statement by reference to decided cases where it has been applied. It also has limitations. For example, it can be rebutted by evidence of purely accidental circumstance and absence of intent to kill or cause grievous harm to any person.
Hyam v. DPP (1974) 2AER 41
Accused (H) was discarded by her lover who now began to pay his respects to another woman. At 2.0am, and driven by jealous, she set fire to the house in which the other woman lived with her three children. Two of his children were burnt to death. She pleaded that her intention was to frighten the other woman into leaving the neighborhood that she had no intention to cause death or grievious bodily harm.
Held: intention to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act, knowing that it was probable (highly probable) that it would result in death or grievous bodily harm to the victim even though he did not desire that result.
Lord Hailsham
“If a man, in full knowledge of the danger involved, and without lawful exercise, deliberately does that which exposes a victim to the risk of the probable grievous bodily harm. (in the sense explained) or death, and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to the extent as if he had actually intended the consequences to follow, and irrespective of whether he wishes it”
And lord Diplock:
“ No distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequence, and the state of mind of one who does the act, knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve, by doing the act.
What is common o both of these states of mind is willingness to produce the particular evil consequence.
Grievous Bodily Harm
In the context of murder, grievous bodily harm means some “really serious bodily harm” or “serious bodily harm”.
Statute defines the term as meaning harm which:
- amounts to maim or dangerous harm ( i.e harm endangering life)
- seriously or permanently injures health;
- is likely so to injure health;
- extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, member or sense.
A intentionally cuts B’s hand, Death results from bleeding and infection:
X intends to hit ‘Z’ slightly, with the flat surface of a cutlass and by accident inflicts grievous harm .h causing death.
Quare R v. Vickers (1957) WLR. 326: if a person does an act, which amounts to the infliction of grievous bodily harm, he cannot say that he only intended to cause a certain degree of harm. See the Criticism of this case at (1958) Criminal Law R. 15
At law, the test of liability for murder is not what the Accused contemplated , but what the ordinary reasonable man or woman in all the circumstance of the case would have contemplated as the natural and probable result. (DPP v. Smith (1961)
This approach appears not consistent with section 316 (2) of the Criminal Code, which postulates a subjective rather than objective test.
The motive for causing death is not an essential ingredient of mind. It is irrelevant except that it may strengthen one’s case if proved.
The motive for causing death is irrelevant. For this reason Euthanasia is murder notwithstanding that, it is mercy killing or some form of murder with love in the heart.
Self Assessment Exercise Explain the following intention:
Express malice
Implied malice
Constructive malice
Recklessness
Negligence
Motive
Knowledge
Homicides, motivated by malice are usually committed in secret. It is rarely practicable to substantiate it by direct and positive evidence.
Sometimes, the dead body or any trace of it cannot be found and it is not common that any person confesses to any participation in a crime, let alone the capital crime of murder. In rare cases of plea bargaining an offender may admit guilt, but this is hardly possible in murder which carries a mandatory sentence.
In cases of implied malice, the homicide is often committed in the presence of others. Thus, it is possible to prove it through those other persons or by circumstantial evidence.