UNIT 10 HOMICIDE

LECTURE/TUTORIAL
Ms Siang’andu
LEARNING OUTCOMES
 By the end of the lesson, you should be able
to define the basic element of murder,
Manslaughter & Infanticide
 Identify the difficulties underlying the mens
rea of murder.
HOMICIDE
 Where the accused is alleged to have committed an
unlawful killing
 In practical terms the accused is alleged to have
committed one of the following serious offences;
murder, manslaughter, infanticide, genocide, causing
death by reckless or dangerous driving. This form of
causing death to another is referred to as unlawful
Homicide
 Therefore Homicide refers to one or more human
beings taking the life of another human being in
circumstances not justified or excused by criminal law
 In CL persons who cause the death of another person
are not charged with Homicide – they are charged
with murder or a lesser offence manslaughter
 Murder & manslaughter – have the same
unlawful conduct – causing death (AR)
 However state of mind (MR) of the accused
(A) at the time of killing is different
 Murder A intends to kill or cause grievous
bodily harm
 Manslaughter A might have been reckless or
negligent in causing death of the victim
MURDER- DEFINITION

Absence of definition of murder in the PC

Chief Justice Coke defines murder as follows;

Murder is when a man of sound memory & the

age of discretion unlawfully killeth… any
reasonable creature in rerum natura under
the king or queen’s peace with malice
aforethought,….so as the party wounded or
hurt etc., die of the wound or hurt etc….
FEATURES OF COKE’S
DEFINITION OF MURDER
(i) Sound memory & age – excludes insane
persons, persons below the age of eight &
those between the age of 8 & 12 in
exceptional circumstances
(ii) reasonable creature – human being
(iii) rerum natura – ‘in being’ raises issues in
relation to the fetus – such as at what stage do
we treat an unborn child as a human being?
A child becomes a person capable of being killed
when it has completely proceeded in a living state
from the body of its mother - S208 PC
(iv) Under the king or queen’s peace – refers to
protection of a sovereign state, excludes those who
kill in the military force if operating under duty or
kill enemy in an armed conflict that the sovereign
state is involved. (i.e. prisoners of war whether
combatant or non combatant
 However excludes the killings of rebels or
terrorists fighting a government established by law
 Under the PC death must occur within a year & a
day or else the person is deemed not to have killed
another s. 209 PC
(v) unlawfully killeth – The killing must be
unlawful – therefore the killing of a human
being in self defence or prevention of crime
excepted

Killing undertaken by an officer when they are

lawfully executing their duty, killing as a result
of medical operation – provided that set
procedures/requirements are met.
THE LAW OF MURDER
 S200 PC – under the section murder is
committed when a human being kills another
being with the most blameworthy state of mind
 S201 PC – punishment for murder is stipulated
as (i) death or
 (ii) any sentence other than death (extenuating
circumstances would be considered based on
applying the reasonable man test – standard of
behaviour of an ordinary person of the
community which the convicted person
belongs)
MURDER- ACTUS REUS (AR)
 S200 death of another person has to be as a
result of an unlawful act or omission
 AR - unlawful act or omission - causes death
 The homicide in the unlawful killing of a
human being by another human being death
needs to occur within a year & a day of D’s
acts (S209(i)) PC

A person is not deemed to have killed another

if the death of that person does not take place
within a year & a day of the cause of death
UNLAWFUL KILLING
 Cannot be justified or excused in law

Name examples of
lawful killing.
 Killing in self – defence or prevention of
crime
 Killing in the execution of a lawful death
sentence inflicted by a competent court
 Only human beings are capable of been killed
for the purposes of homicide.
 Death of a human being must be caused
within a year & a day of having undertaken
acts which causes death.
MENS REA OF MURDER - I
• Malice aforethought- most blameworthy
state of mind or the intent to cause grievous
bodily harm
 Malice aforethought according to the case
The people v. Njovu as per Chief Justice
Blagden ‘relates to the state of mind of the
accused person at the time he caused the
death of the deceased’
 S200 PC a person can only be convicted of
murder if there is the existence of malice
aforethought
MENS REA OF MURDER - II
 MR of murder – S204 PC sets out three kinds of malice
aforethought & proof of any one or a combination will satisfy the
requirements of proving mens rea beyond reasonable doubt
leading to a conviction of the accused

(I) Express malice – s204(a) – intention to cause death or do

grievous harm
(II) Implied malice - s204(b) knowledge that act or omission is
causing death or led to death or grievous harm – ( see
Mbomena Moola case)

(III) Constructive malice - s204(c) intent to commit a felony –

involves statutory interpretation leading to establishing a
causal link - It is present if the D causes death while
committing or attempting to commit a felony - Chitenge v. The
people (1966) ZR 37
THE DEFINITION OF MALICE
AFORETHOUGHT
 The people v. Njovu (1968) ZR 132 (HC)
 D aged 59 was charged of murder of his wife
 Accordingly malice aforethought relates to the state of mind of
the accused at the time he caused the death of the deceased
 In order for the D to be charged of murder three factors had to
be established s.177 PC
(i) That the D caused the death of the deceased
(ii) By an unlawful act &
(iii) With malice aforethought
 In order for malice aforethought to be established in this case
the prosecution had to prove that the D either had actual
intention to kill or cause grievous harm to the deceased
 Or that he was doing what was likely to cause death or grievous
harm
THE PEOPLE V. NJOVU (1968)
 There were no questions as to whether the D killed
the wife as he had admitted having killed the wife
 But circumstances surrounding the commission were
that the deceased his wife had slapped him twice in
the face
 Seized him by the throat & attempted to drag him
from the bedroom to the sitting room
 D had argued that he had not intended to kill his
wife nor cause grievous harm but that his actions
were provoked as a result of his wife’s action
 The lose of control as a result of his wife ‘s actions
was justified therefore accused not guilty of murder
but guilty of manslaughter
INTENTION
 Intention refers the state of mind where the D aims or
chooses to kill ( direct intention)
 Intention alone is sufficient to determine the mental
element of murder [ Moloney (1985) AC 905]
 E.g. The accused intends to kill or cause grievous harm
 It would be their aim would be to bring about the
consequence
 Situation where the D sets fire to a property where he is
detained in order to facilitate his escape, it could be argued
that he did not intend cause damage to the property but
only as means to enable him to escape undetected
 This mental element is known as
 Oblique intent is used to refer to the state of mind which
occurs where there is no possibility of realising one’s goal.
RECKLESSNESS
 In certain offences proof of Recklessness is enough
to secure a conviction
 The accused is said to be reckless where the accused
acts in an unjustified manner whereby acts involves
a risk of a prohibited conduct occurring &
 It is unreasonable under the circumstances to adopt
such a risk
 Subjective recklessness – Cunningham recklessness -
D must know that there are taking a risk of the
prohibited consequence occurring ( Mumanga case)
 Objective recklessness- A carry out an act which he
recognises will create an obvious risk but despite
this he goes ahead and carries out the act.
NEGLIGENCE

 Failure by of the A to act in conformity with

the objective standard
 State of mind of the accused at the time of
his actions is irrelevant
 In manslaughter gross negligence is required
to be proved as was the case in Adomako
(1994) 3 ALL ER 79 (HL)
ATTEMPT MURDER
 S. 215. attempts to cause the death of
another;
 Nature of offence - felony
 Punishment and is - imprisonment for life
MANSLAUGHTER - I
 AR for Manslaughter & murder is the same (ref
s200 PC)
 S199 any person who causes death of another
person by an unlawful act or omission is guilty
of a felony termed manslaughter
 AR- unlawful act or omission - causes death
 For an act to be regarded as unlawful both actus
reus & any necessary mens rea must be present
 In manslaughter of every kind there must be a
guilty mind without it the A must be acquitted
(R v. Lamb)
MANSLAUGHTER- II
 S199 provides an explanation as to when the offence of
manslaughter is said to have been committed.
 No definition of manslaughter
 Manslaughter is a felony
 S199 – accordingly ‘an unlawful omission is an omission
amounting to culpable negligence to discharge a duty of
preserving life or health’
 It is based on failure to perform with due care in order
not to endanger a life or health
 It is intended to cover professional cases where there is a
failure to discharge a duty due to carelessness or
recklessness
 S202 – penalty of manslaughter is stipulated – maximum
life imprisonment
MANSLAUGHTER - III
 There are two types of Manslaughter;
Voluntary Manslaughter & Involuntary
Manslaughter
(i) Voluntary Manslaughter – This is where the
A kills another person with the MR of
murder but is not guilty of murder because
A killed under provocation or DR which
operates to reduce blameworthiness to
manslaughter
EXAMPLE OF VOLUNTARY MANSLAUGHTER

 Where an accused kills under provocation

 i.e. The people v. Njovu (1968) ZR 132 (HC)
 A killed with MR for murder
 But was not guilty of murder because he was
provoked to kill
 Provocation – mitigation circumstances which
operates to reduce criminal liability to
manslaughter.
PROVOCATION
 S.205, 206 PC
 Essence of provocation
 A kills a person in heat of passion (moment) after
having lost his or her self- control.
 Provocation need to be sudden.
 The A must have no time for passion (no moment) to
cool down.
 A’s loss of control is judged against a ordinary person
(reasonable) –s.206
 An average person in a similar situation.
 Concept of ordinary person is broad takes into account
background, traditions, beliefs of person.
 Contrary to common law concept of reasonable man.
INVOLUNTARY MANSLAUGHTER
(i) This is where the A killed without the fault
elements required for the particular
offence
- absence of malice aforethought – involuntary
manslaughter
 There is two types of Involuntary
Manslaughter
(i) Unlawful act (constructive) manslaughter
(ii) Gross negligence manslaughter
EXAMPLE OF INVOLUNTARY
MANSLAUGHTER
 Subjective (reckless) manslaughter – The
People v. Lawrence Mumanga (1985) ZR 35 HC
 Despite prosecution having established beyond
all reasonable doubt that the accused shot &
Killed the deceased who was in the other
hunting party
 Seeking to rely on a case of reasonable
mistake of fact that the A honestly thought he
was killing an animal called Chisongo
 Crt dismissed the idea of an inevitable
accident on the following basis;
THE PEOPLE V. LAWRENCE
MUMANGA (1985)
1. The A shot the very object that he had aimed when he pulled
the trigger
2. He did not aim & shoot at something else or as a result of some
kind of novus actus interveniens bullet missed its intended
target
3. Neither did the deceased suddenly run across the path of the
bullet & consequence got shot
4. He should have known that they was only one source of light
which was the hunting lamp as opposed to two which would the
eyes of the chisongo
5. Absence of evidence that the A had seen a Chisongo during the
hunting exercise running in that direction
6. This could only lead to the conclusion that his decision to shoot
was more than gross negligence. It was reckless. Where a man
acts recklessly & causes the death of another, manslaughter is
the only reasonable finding.
 INVOLUNTARY MANSLAUGHTER – (I) UNLAWFUL
ACT (CONSTRUCTIVE) MANSLAUGHTER
 Victim must have died as a result of the unlawful criminal
act
 Criminal liability is said to be constructive
 The unlawful act has to be intentionally or recklessly
committed by the A which the reasonable man would
foresee as liable to cause harm
 In Att-Gen’s Reference (No. 3 of 1994) (1998) it stated that
in the determination of criminal liability established on the
doctrine of manslaughter Four requirements are considered;
1 That the criminal act was intentionally or recklessly
committed
2 That the act was unlawful
3 That the act was dangerous
4 That the unlawful & dangerous act caused the death
GROSS NEGLIGENCE
MANSLAUGHTER
 Death which is as a result of negligence &
that which is as a result of gross negligence
will result to two different responses of the
law. The former under tort & the latter
under criminal law.
CICUTO V DAVIDSON & OLIVER (1968) ZR 149 HC

 The plaintiff of the decreased child claimed

damages against the D alleging negligence in
that
(a) They failed to take any or adequate step to
diagnose the child’s illness intussusceptions
of the large bowel;
(b) They failed to obtain an X-ray on the child
‘s stomach which the plaintiff claimed
would have revealed the child’s complaint
(c) They failed to accede to the father’s
request for an X-ray;
CICUTO V DAVIDSON & OLIVER (1968) - II

(d) They failed to take any steps to remove or

cure the intussusceptions which was readily &
easily curable by surgery; &
(e) They allowed the child to remain without any
proper diagnostic or remedial treatment from the
day the child was admitted till the death
 Crt in deciding the case referred to L. J.
Denning’s comments in Roe v. Ministry of Heath
where the L justice said where people suffer
such terrible consequences there is a natural
feeling that they should be compensated.
CICUTO V DAVIDSON & OLIVER -
III
 However imposing liability on hospitals &
doctors for everything that goes wrong
would constitute a disservice to the
community at large
 Doctors would be led to think more of their
own safety than the good of their patients
 Confidence would be stifled & confidence
shaken
 Must insist on due care for patients at all
times & we must not condemn as negligence
that which is only a misadventure
CICUTO V DAVIDSON & OLIVER -
IV
 As a result crt concluded that it was
unfortunate that the parents in instance case
had suffered a bereavement in circumstances
which deserved their deepest sympathy But
 The misadventure could not be condemned
as negligence
 However the above case on negligence is to
be contrasted with the decision in R v.
Adomako [1995] 1 AC 171 HL where the
defendant was convicted for killing by gross
negligence
R V. ADOMAKO [1995] 1 AC 171
HL
 A an anaesthetist took over from another anaesthetist
during the course of an operation
 Whilst he was in charge the tube which supplies oxygen
(endotracheal) to the patient become disconnected
 A will become aware of this 4 1/2 minutes later when
blood pressure monitor alarm sounded
 A carried out various checks of the equipment &
administered atropine to raise the patient’s pulse
 Patient died approximately 9 mins after the disconnection
patient suffered from a cardiac arrest which he died from
 It was only at this point when A discovered the
disconnection
 A was convicted of manslaughter ( guilty of gross
negligence) & appealed – appeal dismissed
R V. ADOMAKO
 A was guilty of gross negligence for failing to
notice or respond appropriately to obvious
signs that a disconnection had occurred &
that the patient had ceased to breath
 A doctor can only be convicted of causing
death by negligence if the crt thinks that he
did something no reasonably skilled doctor
should have done
2ND EXAMPLE OF GROSS
NEGLIGENCE MANSLAUGHTER
 The People v. Zulu (1968) ZR 88 HC
 Accused (A) a 28yr old was charged with
manslaughter particulars being he unlawfully
killed a sixteen month old child (deceased)
 Deceased was poorly suffering from vomiting &
diarrhoea
 Parents obtained medicine from a chemist in
Lusaka
 Condition of the child improved but parents
decided to have child injected.
 There was evidence of the practice of giving
injections by people without medical qualification
THE PEOPLE V. ZULU (1968)
 Deceased’s mother made arrangements for the accused to
give the deceased some unspecified injection, presumably a
drug of his choice
 A injected deceased with 10 cubic centimetres of chloroquine
 Within minutes of receiving the injection deceased died cause
of death cardiac arrest, acute heart failure following an
overdose of chloroquine
 Since the A undertook to administer medical treatment by way
of injection to the deceased crt held he was therefore under a
duty in law to have reasonable skill & care in administering it
 A in breach of the duty since he possessed no skill, or training
& no duty the said omission which caused the death amounted
to ‘culpable negligence’ & therefore unlawful. A convicted of
manslaughter.
THEREFORE;
 Cases involving medical negligence fall
within the jurisdiction of civil courts – Tort
law
 Cases involving gross negligence would be
subject the medical practitioners to the
rigours of criminal law.
 The law requires gross (extreme) negligence
for medical negligence to become a subject
of litigation where the result of medical
negligence was either death or grievous harm
 IN ORDER FOR A D TO BE CONVICTED FOR
KILLING BY GROSS NEGLIGENCE THE FOLLOWING
REQUIREMENTS MUST BE SATISFIED;
(i) Breach of a duty of care owed by the D to
the victim
(ii) That breach ( which was grossly negligent)
caused the death of the victim ( or caused
grievous bodily harm); &
(iii) That breach was more than serious to
constitute gross negligence
Above is regarded as the principle of Bateman
but was endorsed on Andrews v. DPP & in
Adomako.
INFANTICIDE - I
 S.203 PC cap 87
 Where a woman causes the death of her child by
a wilful act or omission
 Child needs to be under the age of twelve
months
 At the time of act or omission balance of her
mind must have been disturbed by reason of her
not having fully recovered from effect of child
birth or lactation
 Such a woman is guilty of a felony infanticide
 Liable to be punished as if it were the offence of
manslaughter
INFANTICIDE- II
 Need evidence to establish that birth of the
child has affected the balance of mind of the
mother or due to lactation that she causes
the death of child
 If there is evidence of serious emotional
disturbance at the time of the commission
then a community sentence would be
appropriate
TUTORIAL QUESTIONS
1. Homicide is always unlawful discuss
2. Define malice aforethought.
3. Some criminal offences are said to be offences of ‘direct intent’
while others are said to be offences of ‘basic intent’ Name &
discuss one offence of direct intent and one of basic intent.

4. Manslaughter may be voluntary or involuntary depending on the

circumstances under which the offence is committed. Discuss
the major distinction between the two types of manslaughter.
Cite one example of involuntary manslaughter discuss & state
what the decision of the court was (Zambian please)

3. Malice aforethought is a basic requirement for criminal liability

in Zambia. Discuss with reference to decided Zambian cases &
statute