Domestic violence problem

The question involves domestic violence. "Domestic violence is any incident of threatening behaviour, violence or abuse between adults who are or have been in a relationship together. Whatever form it takes, domestic violence is rarely a one-off. Usually it is a pattern of abusive and controlling behaviour, through which the abuser seeks power over their victim. The Domestic Violence, Crime and Victims Act 2004 was introduced to increase the protection, support and rights of victims and witnesses. "1 Ghori has been the victim of domestic abuse for the last few years of her marriage.

The scenario is the final straw for Ghori. She decides to poison her husband by poisoning his tea with rat poison, this is the mens rea, but does she really know what she is doing or has she been provoked? Ghori places Ameerika's meal on the table along with the tea, this is the act, actus reus. Ameerika has often been abusive to Ghori and on the day he hits her, which means she has to attend hospital. This is a benefit to Ghori because an outsider has noted her injuries. Ameerika leaves his meal and the tea on the table whilst he attends the hospital with Ghori.

Televir their son comes in and has the tea; he begins to feel sick and starts to vomit. It is not clear that he has drunk the poisoned tea. An hour later he dies, the next day the police come to arrest Ameerika and Ghori. Did Ghori intend to kill somebody? Ghori intended to kill Ameerika after he provoked her. She was motivated to carry out the act after suffering constant abuse. When she places the teapot on the table she puts anyone in harm of been killed if they drink the tea, Ghori has acted recklessly.

"Recklessness is defined in the subjective sense, awareness of a risk that a result will occur or awareness of a risk that a circumstance exists or will exist". 2 If she wanted to kill Ameerika then she should have moved the teapot before going out. She has put her son in a dangerous situation he does not know that the tea is poisoned. Le Brun (1992) QB 61 – the defendant killed his wife by accident. There was a continuous course of unlawful conduct. He was found guilty of manslaughter. There are a number of offences that Ghori can be charged with if Televir drank the poisoned drink.

The most serious is murder. "Parliament has not defined murder. Chief Justice Coke defined it as the following: "Murder is when a man of sound memory and of age of discretion unlawfully killeth any reasonable creature in rerum natura (any human being) under the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded or hurt etc. , die of the wound or hurt etc …. "3 For Ghori to be liable of any homicide offence there are three common elements that must be established: (1) She must cause, (2) the death of a, (3) human being.

It is not evident that she has killed her son. When a post mortem is done we will know the cause of his death. The prosecution must prove that the death was caused by Ghori. There must be both a factual cause and a legal cause. Factual causation; the satisfaction of the "but for test", that is but for the conduct of the accused the victim would not have died. In "R v Pagett (1983) 76 Cr App R 279 – an armed criminal used his girlfriend as a human shield. The police returned his fire; the girlfriend was killed by a police bullet. It was found that if it was not for his actions she would not have died.

The original injury must be more than the minimal cause of death – the de minimis principle. This can be questioned; it is not clear that Televir actually drank the poisoned drink. Legal causation: even if the factual causation is established then the court must still direct the jury as to whether the accused acts were sufficient in law to be a cause of the victims' death. R v White (1910) 2 KB 124 – "A Defendant will not be liable for the death if the victim would have died at the same time regardless of the defendant's act or omission.

"4 Section eight of the criminal justice act (1967) looks at what the accused intended. Prior to this, it was the reasonable man test. This came about because of DPP v Smith (1961) AC 290. The "jury is now not bound to find that the defendant intended the result, just because it was a natural and a probable result of the defendant's act. The jury must now look at all the relevant evidence and decide the defendant's intention". 5 Did Ghori intend to kill her son? "The mens rea of murder is the intention to kill or commit grievous bodily harm".

6 The actus reus and mens rea must coincide, this is known as the contemporaneity rule. "However, the courts are sometimes prepared to hold that they must coincide at some point in time, R v Jakeman (1982) 76 CR APP R 223". 7 Ghori does have the intention for murder to her husband. "Intent is defined as covering both "purpose" and knowledge that a result "would occur in the ordinary course of events if she Ghori were to succeed in her purpose of causing some other result". The latter part of the definition means that she will not intend something which she wishes to avoid;"8 e.

g. she did not intend to hurt her child by leaving a poisoned drink on display, but the result is obvious. In law, there are two types of intent; Ghori has shown direct intent; this is the typical situation where the consequence is foreseen as virtually certain. Ghori has shown oblique intention to her son, she knows that someone will certainly die, although she can honestly say that she does not want Televir to die, and would hope that he would survive. The second offence Ghori could be charged with is manslaughter. "Manslaughter is not defined by statute.

"9 This is "where the defendant kills with the fault required for murder but, because of the presence of a defence recognised by law, the offence is reduced to manslaughter". 10 Manslaughter is split into two brackets voluntary and involuntary, if Ghori is charged she will only be charged with manslaughter. "Voluntary manslaughter was a construction of Parliament, done under the Homicide Act 1957". 11 It is the more serious; the accused has to have the mens rea for murder, but there is a defence e. g. in Ghori's case provocation.