As in English law, under Maltese law it is generally held that the foetus becomes a person as understood in section 211(2), if it has an existence independent of its mother. The killing of a child prior to this independence, would not amount to a wilful homicide. At English law, it is essential that the child must have been wholly expelled from its mother's body and be alive. 12 The umbilical cord, need not have been expelled from the mother or severed from the child.
The two tests of independent existence, that are generally accepted, are: i) that the child must have breathed after birth and ii) it must have an independent circulation from that of his mother. There are however a number of problems with both tests. There is no means to ascertain, when the child's circulation is so dissociated from his mother's, as to allow it to live without the help of parental circulation. Furthermore, this dissociation could precede birth. Smith and Hogan comment, that the courts have not delved into such intricacies in the recent years.
As regards the "breathing test", Park J in Brain,13 held that, it is not essential that it should have breathed at the time it was killed; as many children are born alive and yet do not breathe for some time after their birth. This reasoning would seem to limit significantly the general applicability of the test. In 1991 in Rance v. Mid-Downs Health Authority,14 (a civil action which dealt with the issue), it was held that a child is to be considered as being "born alive" if -after birth, it exists as a live child, that is to say breathing and living by reason of its breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with its mother.
This reasoning is correct, yet it does not seem to consider the problem mentioned in Brain. It could be that in many instances, the two tests provide an adequate solution. Yet the above mentioned flaws have not been solved, but merely disregarded by the English courts. This solution of the issue is far from being satisfactory.
Smith and Hogan, have justified this approach; with the fact that there are very few reported instances of this sort. Apparently, in Malta, the cases are even less common. In the absence of recent local authorities on the matter, it would seem appropriate to use the English principles as guide-lines within the Maltese ambit. The passive subject in the offence of wilful homicide, must necessarily be alive. Non pui?? commettersi omicidio in relazione a un cadavere, che non i?? persona. 15 With the constant evolution of medical techniques, it is becoming increasingly difficult to establish the moment at which the death of an individual occurs.
Is P dead and therefore incapable of being murdered, if his heart stopped beating but a surgeon confidently expects to start it again…? Is P dead if he is in a "hopeless" condition and kept alive only by an apparatus of some kind? There is, at present, no certain answer to these questions which are being raised in an acute form by… [organ]… transplant operations. The current view is that, the test is one of cerebral death. This can be determined with certainty. Carrara held that the means employed could generally be classified as diretti or indiretti, per commissione o per omissione.
Each category could then be further subdivided into fisici, meccanici, materiali or morali. These classifications have only a technical value, as in practice the means employed are irrelevant. Carrara himself admitted that [i]ndifferenti pure sono alla essenza di fatto di questo titolo i mezzi adoperati ad uccidere. Alla essenza di fatto dell'omicidio basta solo che un uomo sia morto, e che di questa morte sia stato causa volontaria il fatto ingiusto dell'uomo. 18 There has to be a causal link between the agent's act and the death of the passive subject.
L'elemento materiale del delitto di omicidio richiede che l'agente sia causa della morte di una persona. Section 211(2) of the Criminal code, requires that he (the agent) causes the death of… the passive subject. Under Maltese law, indifferente il tempo interceduto tra l'azione della causa e la produzione dell'effetto. Manzini points out, that when the death does not follow immediately the fact causing the death, the causal nexus must be ascertained with particular attention, owing to the possible contribution of other causes.
This is one of the main differences between the English notion of murder and the Maltese notion of wilful homicide. According to Coke's definition, the party wounded, or hurt, etc. [must] die of the wound or hurt, etc. within a year and a day after the same. If the death occurs after the lapse of a year and a day, there is a presumption juris et de jure that there is no actus reus. The idea behind this rule originated in medieval times, as after a certain lapse of time between the cause and the death, medical science could not attribute with certainty the death to a particular cause.
Thus whereas Maltese doctrine, has opted for the approach suggested by Manzini, according to whom, occorre accertare con particolare rigore il nesso di causaliti without however imposing any time-bar, English penal doctrine has opted for this arbitrary approach. Smith and Hogan, do not think that this justification for the rule applies any more, owing to the development of medical science. They think that the rule, can be justified only on the ground that the one who has injured another should not remain indefinitely at risk of prosecution for murder.