Murder Cont’

1.0   Introduction

2.0   Objectives

• Main Content
• Who and what causes killing
• Factual Causation
• Legal Causation
• Novus actus interveniens

4.0   Conclusion

5.0   Summary

6.0   Tutor-Marked Assignment

7.0   References

Introduction

In cases of homicide, if as we have seen, killing of a reasonable creature in rerum may be inspired by an intention to kill a human being, or to cause any one a grievous bodily harm or do something unlawful to another, foreseeing that death or grievous bodily harm is a natural and probable result. In many cases also, the act or omission of either the victim, an accomplice, co-felon, or innocent agent and/or a complete stranger may be such as to be regarded as his own act or omission and therefore responsible for the consequences - a semblance of vicarious liability. We shall be looking into some of these situations in this unit.

 Objectives

When you have studied this unit, you should be able to:

1. identify situations when a person accused of murder may be held criminally responsible for the conduct of another over whom he/she has no control
2. Distinguish legal causation from factual causation in murder
3. Explain the term novus actus interveniens
4. Determine nova acta interveniens that may exculpate or inculpate an aggressor
5. Critque judicial approach to cases of nova acta interveniens

Main Content

What and who causes the killing:

In many cases of homicide, it may not always be clear what or who has caused the death of the victim.

Illustrations:

1. X shoots at Y with a gun and kills him  unknown to  X,  Y was already suffering from a terminal disease of cancer and would in any event have died any moment. Who is liable for  killing  or did the act which caused the death of Y?.
2. B fatally stabs A with a knife, ‘A’ broods over the incident takes poison from which he dies

Who is responsible for the act resulting in the killing of A?

Differences may well lie on the relationship between the act of stabbing and the act of poisoning and whether the latter act was ‘daft’, abnormal or reasonable.

1. An armed gang shoots at the police patrol, one of the Police men, Police Constable  M  shoots  thought  back,    killing an innocent female undergraduate by stander whom the constable though was being used as human shield by the armed gang.

You see, death may be self inflicted (suicide), it may arise from the conduct of a second party assailants or even by an intervening act of a third party stranger.

Killing can arise from several blows from different people in a way that it may not be discernible which particular blow resulted in the killing.

There are two approaches to the problem and it is important always to distinguish one from the order. Bear in mind that one can cause death  in fact but not in law ,just as it is possible for one to be held responsible for killing in both fact and law. Let us distinguish factual causation from the legal causation

Factual Causation

This is a practical question: what and which act is responsible for causing a certain event to occur? Who and what in actual fact brought about this or that consequence?

It is the answer you get while filling the following gap :

(i)       But for this/that factual act ) the killing could not have arisen.

• This or that person is able to prevent the crime, but did not or omitted to do(this or that.

It is the same as answering this question:

Whose and what act or omission is the sine qua non of the killing in question?

• De minimis rule : The rule in the “minimis non curat short form :  de minimis is that the law is not concerned with trifles. The cause must contribute more than negligibly to the result. Its contribution must be significant, to the result, not slight or trifling but outside de minimis range.

It needs not be the sole cause; or even a substantial or dominant cause.

Thus it is an invalid defence

• that the death could not have occurred if other had acted differently.
• that there  is another or other  significant contribution:       (R V Armstrong, compared with R V Kennedy

Self Assessment Exercise

Explain, with illustration, the term “factual Causation”

Activity

• In one paragraph each, summarise the facts and decision in and, R V Kennedy.
• Distinguish both cases

Guide to distinguishing:

• which of the cases is alcohol or heroin based?
• Is there any difference in the characteristic or identity of the victim in each case?
• What is the nature and extent of intervention in each case: Can it be described as abnormal or de minimi?

Legal Causation

Legal causation points to the direction of the person to whom the criminal law attributes the cause of the victim’s death in the particular circumstances of each case Where there are more than one cause of a consequence, the person to whom criminal liability can fairly be ascribed is the legal cause of consequences, irrespective of what or who fact actually brought  about the consequence.

Illustration:

Ladi hits Kunle with a stick on the head, Kunle bleeds, and dies as a result of the injury he has received.

Ladi’s act is both the factual and legal cause of Kunle’s death.

Saheed is suffering from an incurable ulcer, a terminal disease.  During  a quarrel Musa violently pushed Saheed who falls into a gutter and is crushed by a car, being driven by Adu. The ulcer, as well as Musa and Audu contributed to the killing of Saheed, as a matter of fact, but criminal liability cannot fairly be ascribed to all of them. Musa and Audu’s acts are intervening acts described as nouvs actus interveniens.

Self Assessment Exercise:

1. Explain with illustrations, the term “legal causation”
2. Differentiate the following (i) factual causation (ii) Legal causation

Novus actus Interveniens

This refers to an intervening cause. It is an event that  comes between  the initial event in the sequence and the end result, thereby altering the material course of events that might have connected a wrongful act to an injury.

Chidi and Gloria are a husband and wife. They had a rawl. Chidi struct Gloria on her jaw, causing her a sink o her knees. While trying to drag Gloria into the house, Chidi dropped her. Gloria later died of a fractured skull. (le Brun (1992)

The intervening event between Chidi’s act of striking Gloria on her jaw and her death is chidi’s act of dropping her, i.e the novus actus interveniens

Independent intervening cause

This is an intervening event, which operates on a condition produced by an antecedent cause but in no way resulted from that cause.

When an event occurs and breaks the chain of causation there is a various actus interveniens that is to say that the act is so independent of the act of the assailant that it may be regarded, in law, as the cause of the victim’s death.

Activity

Sophia enteres a taxi at Tudun Wada, enroute Sabo. She soon becomes apprehensive that she entered a wrong vehicle. Kodje in inmate is the vehicle, moves towards her, sexual advance, tries to take off her skirt . Sophia screened and jumps out of the fast moving vehicle to her death.

If an intervening act is independent of the act of the Kodje, the  court  may in law regard it as the cause of the Sophia’s death to the exclusion  of the act of kodje.

What kodje did may well be mere part of history.

If on the other hand, the intervening act is not strong enough to relieve the wrongdoer of liability or it is not, free, deliberate, and informed, the chain of accusation is not broken; the wrongdoer (eg kodje) still remains the cause. See Dyson V R (1098) and R V Adams (1957).

The problem we face is : How the court determines the following :

1. Independent intervening    act,   which   would  relieve   the   original wrongdoer of liability
2. Other intervening   acts   which   are   connected   with   the   initial wrongdoer act to the consequences.

To this question judicial approach has not been uniform. Different principles of law have also been applied. All these combine to render issues of causation in cases of murder difficult.

Test

The courts appear to have applied four different tests, namely:

1. Operating and substantial test
2. Nominal consequences test
3. Reasonable foresight test
4. Novus actus intervniens

Sometimes, the nature of the cause may guide the court in the choice of test. For example, the judicial attitude may on whether the case before it involves “escape” or medical malpractice and refusal of treatment. In every case the court is required to determine.

1. Causation in fact, and
2. Causation in law

In doing so, one has to consider:

1. The initial wrong doing
2. The initial intention distinguished from motive)
3. The intervening conduct by
   • the victim
   • a stranger

 Self Assessment Exercise

Distinguish a supervening novus actus intervniens. Illustrate with  at least two decided cases.

Distinguish situation where the novus actus interveines may be regarded as the act of the aggressive party. Illustrate with at least three decided cases

  Interveing acts of Omission

An intervening act may break the chain of causation and relieve the original assailant of criminal responsibility if:

• it is an independent act or omission
• the initial act or omission, which set the stage, ceases to be the effective or Operating cause at the moment of the victim’s death

© it is a free, deliberate and informed intervention

(d)   it is abnormal or unforeseeable

  Intervening acts: medical malpractice.

A medical doctor must, at his peril, use proper skill and caution in administering a poisonous drug. But where the doctor’s treatment of his patient is lawful, the criminal law will regard the patient’s death as exclusively caused by the injury or disease to which the condition is attributable.

If a medical practitioner honestly and bona fide performs an operation or uses a dangerous instrument, which causes the patient’s death, he may not be morally liable.

But if he is guilty of criminal misconduct, arising from gross ignorance or criminal inattention and not from mere error of judgment, he may be liable for unlawful homicide.

The same is true of a person who is not a regular medical practitioner. If he has a competent degree of skill and knowledge and makes accidental mistake in the treatment of a patient, through, which mistake, death ensues, he may not thereby be guilty of unlawful killing

However, where proper medical assistance can be had, a practitioner totally ignorant of the science of medicine, takes on himself to and administers a violent and dangerous remedy to one labouring under disease, and death ensues in consequence of that dangerous remedy having been so administered, then he may be liable not for murder but for manslaughter.

This is somewhat a difficult part of the criminal law. Perhaps a few examples and activities may make it clearer.

Activity

Uba is a medical doctor. He administers to Ijeoma (a patient) certain pain-serving drugs, which would shorten life, seeing that she has severe pains.

Identity the following:

1. Intervening act
2. Uba’s intervention in fact
3. Uba’s motives in fact
4. What the law says about (1) intervention (2) Motive i.e (Purpose)
5. What the literal approach of the criminal Code is
6. What the judicial approach has been
7. The effect   it   would   have   in   your   answer   if   the   doctor   had administered a large
8. dose of sedative, causing the patient to lapse into a coma in which he dies instead of the fatal pain killer.

1. The difference, if any, an unqualified and unauthorized person had done the same thing the licensed medical practitioner did.
2. Read section 313 of the criminal code concerning injury causing death in consequence of subsequent

Let us consider some relevant cases.

R.V Smith

Garba inflicts stab wounds and causes his victim some injury.  The victim is admitted into the hospital, this good chances of recovery from the stab wounds. At the hospital, the director gives him what experts described as “thoroughly bad treatment’ from which he dies.

These were the facts as found by the court in R v Smith and the judgment of the court was that death flowed from the stab wound. To avail a defense, novus actus interveniens must be so overwhelming as to make the original wound merely part of history

R v Jordan (1956)

J inflicts stab would on V, the stab wound  is responding to treatment and is largely healing. While still undergoing treatment, V is injected with a drug and large liquid and he dies. Expert evidence is that  the treatment is “abnormal, so negligent and palpably wrong” Held” J is not liable. ‘The wound was merely the scene of the cause of death not the cause itself. Legal writers regard this case as exceptional.

F v Cheshire

C stabs V at the chest, and legs. The injury does not threaten life. Without first diagnosing the patient’s ailment, the doctor inserted a tube in his wing pipe to aid breathing and dies from the negligence. Held:  C  is liable.

In the case above, the factual causations point to the novuos actus interveniens (the acts of the medical practitioner) but the legal causation indicates the original acts as the effective and operating cause.

The purpose of medical treatment is to restore health and to relieve pain and suffering It sounds bizarre to argue that a medical practitioner who is doing his or her best to save life is the cause of death.

If a medical malpractice is the immediate cause of death, it could also in certain circumstances be regarded in law as the cause of a victim’s death to the exclusion of the accused’s acts provided where, for example, where the malpractice is most extra-ordinary or so potent in causing death. In this situation the issue you are to consider is not the degree of fault. It is not also the recklessness of treatment. It is the consequence  of treatment, whether the maltreatment is the cause of death to example  the exclusion of the original act.

Example :Nuhu and Zakari have a fierce quarrel; Nuhu hits Zakari’s  head over a TV set and injures him. Zakari needs to be operated but he  is diagnosed to have a pre-existing ulcer. This makes the operation risky because he may die under anaesthesia. Nonetheless, the doctor carries out the operation and Zakari dies.

The treatment here is not reckless; nor the potent cause of death. It is Nuhu’s act and Nuhu is liable. This was the case  of  R v Mckechnie (1992)

Conclusion

Every one has a right to freedom of thought; be it good or evil. You can freely have within the realm of thought a desire to kill or to maim and go to sleep. You may express a desire to kill Mr. X and Mr. X dies a few days later of cardiac failure. In either case you incur no criminal liability. The reason is that there is no nexus or causal link (or legal causation) between your evil intention and the proscribed event. Causation may be factual or legal, both of which must correspond in order to establish a legal nexus

Summary

You have learned about a factual causation as well as a legal causation, It is important to dichotomise both concepts. In appropriate cases, who and what is responsible for killing a victim in fact may not stand the legal test of who and what has caused the killing in law There may have been  a novus actus interveniens . In this connection you learned about the de

minimis rule, the applicable test and judicial attitude towards cases of death arising from medical mistreatment and the Police fire power.

Tutor Marked Assignment

The criminal law protects medical malpractice and police carelessness. Discuss critically with reference to decided cases.

References

Jefferson , M G (2003), Criminal law 6^th Ed. Longman, London

Butler T. and Garsia M: (1969), Archbold, Pleading, Evidence and Practice, Sweet and Maxwell, London.

Madarikan C and Agada T, (1974) Brett and Mclean’s: The Criminal Law and Procedure of the Six Southern States of Nigeria, Sweet and Maxwell.

Ormord D (2005), Smith and Hogan Criminal Law. 11^th Ed . oxford University , Press ,London

Molan M (2003) Criminal law 4^th Ed . Old Bailey Press, London