Neither the common law nor the Criminal Code has defined the term
“Murder”. In both descriptions there are imported additional legal terms whose meanings are assumed but require clarifications.
3.2.3 Who can commit murder?
Any reasonable man or woman may be answerable for murder except i. A person under the age of seven years.
ii. A person under the age of twelve years unless he is proved to have a “mischievous discretion”
iii. A person of unsound mind within the ‘McNagkten rules iv. A corporation.
3.2.2 Who can be killed?
The victims of murder include:
Innocent victims of murder.
Innocent bystander.
Law reinforcement officers.
Non-law enforcement person, attempting to rescue the victim.
All co-felon.
To constitute murder, there must be killing of a reasonable creature in rerum natura
A human being is capable of being killed between the moment the foetus or child has “an existence independent of its mother” and the moment of death.
The phrase ‘an existence independent of its mother” implies that:
The body of the child must be wholly expelled from its mother’s body (R v. Poulton) (1832)
The entire child must be born into the world in a living state.
It is not a requirement that the umbilical cord and afterbirth have or have not been expelled from the mother’s body or severed from the child (R V Reece) 1839.
It must have independent circulation that the child breathed or: R v.
Enoch, (1834) R V Bran , (1834), R V Handby, (1874)
A creature ceases to be capable of being killed when life ceases. The test of death is “brain dead” indicating that, while one can be kept alive on a life support machine, there is no chance of his ever recovering consciousness.
Breathing does not determine life or death
The reason is that many children are born alive and yet not breathe for some time after their birth. Examples are pre-mature children. What is of essence is that the creature exists as a live child, without deriving any of its living or power of living by or through any connection with its
mother. But the fact of the child’s being still connected with the mother by the umbilical cord will not prevent the killing from beingmurder.
See the case of R v. A, (children ) co joined Twins surgical separation (2000). In that case, J and M are co joined twins. M was entirely dependent on J for her existence. The medical practitioner severed the twins, knowing full well, as indeed happened that the process would inevitably cause M’s death. The question for the court was whether the killing of M was murder or whether M was a reasonable creature in rerum natura for purpose of homicide.
Brook J, obiter, observed that although M had for all practical purposes, a useless brain, a useless heart and useless lungs, she was still alive.
Justice Broke endorsed the view that advances in medical treatment of deformed neonates have suggested that the protection of the criminal law would only be denied in the most extreme cases.
Self assessment Exercise
Discuss the criminal liability for pre-natal injury in the following cases.
1. Aminat conceives an unwanted child. She takes some drugs to kill the foetus. The child is born alive but with severe injuries from which it dies six months after birth.
2. Dolapo stabs his girlfriend who is three months pregnant with his child. Because of the wound the child is born prematurely and dies four months later as a result of the premature birth.
3.2.4 Killing.
Killing means causing the death of another (man, woman, child) – a reasonable creature or being (human being) between the time of birth with or without severing navel-string.
Causing death may be direct or indirect so long as the act or omission leads to death and has reasonable connection with the death. If a man’s life ends, he ceases to be capable of being killed or murdered.
3.2.5 The moment at which a man dies?
Consider the following:
1. D in a state of deep coma.
2. N in a permanent vegetative state.
3 R in a hopeless condition and kept alive by means of a ventilator.
4. M’s heart has stopped beating but the Doctor hopes it would start by an injection or mechanical device.
Neither statute nor any case law has defined the moment of death or provided any guideline as to when life can be deemed to come to an end.
The reason perhaps is in part the fluid state of medical science. Even if a definition or guideline were provide, it might soon be out-dated because of the fast rate of advancement in medical technology.
Determing the moment when life ends has also been compounded by incidences of persons whose hearts have stopped beating whose breaths have ceased and are found to have subsequently revived and lived.
3.2.6 Brain death test.
Death is the ending of life, the cessation of all vital functions and signs.
At present the very moment of death is determined by the ‘Brain Stem Death Test’. Brain death is the bodily condition which shows no responses to external stimuli, no spontaneous movements, no breathing , no reflexes and a flat reading (usually for a full day) on a
machine that measures the brain electrical activity. This state also is referred to as legal death, the moment when one,s brain stem ceases to function with the result that reflex actions, in particular, blood circulation and breathing have ceased to function.
Self Assessment Exercise
For purpose of criminal law, explain , with reference to decide cases, which life begins and terminate.
3.2.7 Causing death.
The unlawful killing may the form of poisoning, striking, starving, drowning, other forms of death by which human mature may be over come.
What and who causes a certain event to occur is essentially a practical question of fact, which can best be answered by ordinary common sense rather than the abstract metaphysical theory. (Per Lord Salmon in Alpha cell Ltd v. Woodward (1972) the dictum in Environment Agency v. Empress Car Co (Abertillery) Ltd (1999) 2 AL 22.
However the problems have remained somewhat intractable and no single theory of caution has succeeded in proving a ready made answer to the question:
Whether the accused’s action is the cause or a cause of some ensuing events.
It is probably a matter of selection of one or more causes out of a multitude of conditions according to the purpose in hand.