Domestic Violence Murder Problem Case

The Actus Reus of murder is the unlawful killing of a human being in the Queen's peace; Unlawful killing can be committed by an act or an omission. All unlawful killings are result crimes and causation must also be established. Some killings may be classed as lawful. For example, killing in self-defence It is clear from the information provided in the question that Sherry, the defendant satisfied the actus reus for murder; because sherry did the act of murdering Stan, her act was deliberate, the act was unlawful, as sherry did not kill Stan lawfully as he did die against civil or criminal law.

The act was a significant cause of death would be difficult to satisfy as normally a person cannot die just by being hit by a vase and the death was of a person in being, as Stan was independently alive before being dead upon arrival at hospital. The mens rea for murder is “malice aforethought”, which is the same as intent [R v Vickers (1957)]. It can be an intention to ill or cause grievous bodily harm. Motive is not intention as I can intend to do an act with the motive to achieve something else [R v Moloney (1985)].

Intention can be indirect or oblique. R v Cunningham [1982] If at the time of stans death, the defendant's acts or omissions must be the operating and most substantial cause of death with no Novus actus interveniens ( "new act breaking in") to break the chain of causation. Therefore, the defendant cannot choose how the victim is to act, or what personality for it to have. The defendant must expect the victim to: 1. try to escape and if he or she dies in that attempt, the chain of causation is not broken; 2.

Or seek medical treatment for the injuries sustained and, even if mistakes are made by the medical staff, this will not break the chain of causation unless the mistakes become the more substantial cause of death. Since Stan died trying to be away from her therefore the chain of causation is not broken, so sherry cannot claim that she did not anticipate Stan to act in such a way because you have your victim as you find them (the thin skull rule). however Stan was hit by a car, does this contribute to a new act breaking in?

It was Stan’s conscious action to run onto the road. (R v Blaue 1975) The partial defence of “loss of control” replaced “provocation”, which is abolished. Section 56 of the Coroners and Justice Act abolished the common law defense of provocation; therefore Section 3 of the Homicide Act 1957 ceases to have effect. This was replaced by Sections 54 and 55 of the Act which created the new defense of loss of control. The current/new law is based on Sections 54-56 of the Coroners & Justice Act 2009. The emphasis is upon a fear of serious violence, as a defence.

There needs to be a “qualifying trigger”, like fear of serious violence or circumstances of an extremely grave character giving rise to a justifiable sense of being seriously wronged. Anger in such a situation may be sudden, such as might occur in the case of a man, or the steadily mounting anger, such as the “slow burning fuse” or the “last straw on the camel’s back” such as might occur in the case of a woman subject to continuous beating or abuse by her husband. (R v Ahluwalia [1992] 4 All ER 889, R v Thornton [1996] 1 WLR 1174)

The defence will not succeed where D is simply very angry, or motivated by revenge, or responding to sexual infidelity. In Sherry’s circumstances these do not apply considering the information provided in the question. The test is that the degree of self-control to be expected of an ordinary person of the age and sex of D with ordinary powers of self-control, is, subjective only so far as age and sex are concerned, but objective so far as the normal degree of tolerance and self-restraint of a reasonable man is to be expected, [Attorney General for Jersey v.

Holley (2005) UKPC 23, (2005) 2 AC 580 – which must be followed, R. v. James (2006) EWCA Crim 14, (2006) QB 588. ] Therefore the disease of alcoholism in D does not qualify, this is yet to be determined for sherry, considering she returned from a restaurant, it is unknown if alcohol was consumed. If sufficient evidence is adduced to raise the issue of loss of control which in the opinion of the Judge could be left to the jury then the prosecution must dispose of that issue. Sherry must note that loss of control providing a partial defence for D1 does not necessarily apply to D2, as the circumstances of each crime differ.

Under Section 54 of the Coroners and Justice Act sherry will not be convicted of murder and will have her charge reduced to manslaughter if the following elements can be proven: 1. That the defendants acts or omissions in doing or being a party to the killing resulted from the defendants loss of self-control 2. That the defendant’s loss of self-control had a qualifying trigger 3. That a person of the defendants sex ad age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in the same or in a similar way to the defendant

A loss of self-control will apply to an act happening in the spur of the moment where there has been a cause which for some reason the defendant has been unable to tolerate which has caused her to take the required action. Sherry must also consider the act specifies certain situations which would not fall within the definition of a loss of self-control, for example if she acted in a considered manner for revenge. According to Section 55 of the Coroners and Justice Act a loss of self-control is said to have a qualifying trigger if any of the following two events, or a combination of both, occur:

1. Was Sherry’s loss of self-control was attributable to the defendant’s fear of serious violence against him or another party 2. Was sherry’s loss of self-control was attributable to things done or said which: 1. constituted circumstances of an extremely grave character 2. caused the defendant to have a justifiable sense of feeling wronged According to the Act when establishing if there was a qualifying trigger sherry’s fear of serious violence must be disregarded if it was caused by an event with the defendant incited and is simply being used as an excuse for the act.

Sexual infidelity will not count as a qualifying trigger. In s. 54 (2) of the Coroners and Justice Act 2009 there is no requirement for the loss of control to be sudden. In sherry’s case she did not incite Stan to tell her he is going to give her the hiding of her life. It seems clear she is not using it as an excuse to use violence and her loss of control was attributable to her fear of violence from him therefore sherry does satisfy the requirements of a qualifying trigger.

The standard of proof required for loss of control is beyond a reasonable doubt. That is if there is sufficient evidence adduced to raise an issue of the defense being satisfied the prosecution must prove beyond a reasonable doubt that the defendant was not suffering from a loss of self-control. provided sherry successfully satisfies the requirements for the defence of loss of self control,it is most likely her charge can be reduced from murder to manslaughter.