Crime XI – Mens rea VII – Omission

Having considered the positive act of the accused, it is only appropriate that we look into whether a failure to act or an omission can constitute murder. It becomes especially important in the parent child relationship and with regards to minors and children.

In the Harlot’s Case (1560) the accused had recently given birth to a child. She took the baby to an orchard and abandoned the child there. The accused was later arrested and tried. It was found that the accused intended for the child to die and despite not physically killing the child, she had done everything to bring about the child’s death. The court held that her actions constituted sufficient intent to kill and a guilty verdict was returned. The accused was executed.

In R v Hayward (1908) the accused chased his wife out of the house after screaming and threatening her. The frigid and frail woman ran out of the house, frightened, and subsequently collapsed and died from an unsuspected medical condition. The man was arrested and charged. Despite not physically causing any injury to his wife, a husband is under a duty to provide for his wife and his failure to do so and the aggressive manner in which he forced his wife out of their family house was sufficient actus reus. The husband however may not have had the intent to kill his wife despite death being the outcome or the consequence of his actions and therefore he was convicted of manslaughter.

In R v Gibbons & Proctor (1918) the accused, the father and his mistress, failed to feed their 7-year-old daughter and as a result the child died of starvation. The accused were arrested and charged with murder. The court in the first instance returned the verdict of guilty of murder and the accused appealed on the grounds that there was no overt act on their part to kill another i.e. the actus reus that is normally or typically associated to murder wasn’t there.

The Court of Appeal held that when there is a deliberate act not do something that an otherwise normal or prudent person would do and the nonperformance of the act was done to bring about the death of another, the evidence that was submitted revealed that the parents did indeed intend to kill the child, then the non-performance of the act would constitute sufficient actus reus to indict and convict for murder. The Court of Appeal upheld the conviction.

In R v Mackie (1973) the accused threatened his stepson with a severe thrashing and the frightened boy tried to get away from his stepfather and while doing so slipped and fell down a staircase and subsequently broke his neck. The injury resulted in death. The accused was charged with manslaughter and he appealed the conviction. The Court of Appeal agreed with the jury that the threat was excessive and upheld the conviction for manslaughter.

Before a verdict of guilty of murder can be returned it must be proved without reasonable doubt that there was a clear discernible intention to kill, especially with regards to crimes of omission and if the prosecution fails to establish a clear discernible intention to kill, the verdict that would be returned would be a verdict of manslaughter even if death was the most likely consequence of the failure to act.

In R v Harris (1993) (unreported) the accused, the parents, refused to allow doctors to treat their daughter’s diabetes with insulin and the child died as a result. The accused were charged and the verdict of manslaughter was returned.

When there is a duty to act and a failure to act results in the death of another especially with regards to children then the chances are that the offending parties will be convicted of manslaughter.

R v Kouao & Manning (2001) (unreported) the accused, a couple, were charged with the death of their 8-year-old niece. They had abused the child and the abuse included not feeding and starving her. The child died of chronic malnutrition and multiple organ failures.

At the trial, the defense argued that the couple lacked sufficient intention to kill despite the fact that death was a likely result of their actions. The court decided that the cause of death was neglect as opposed to a physical act and accordingly returned a verdict of guilty of manslaughter.

When death results from an omission instead of a physical act, the charge and the verdict in most instances would be that of manslaughter unless there is a clear discernible intention to prove that the omission was done to bring about death.

Copyright © 2018 by Dyarne Ward

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