Criminal Law: Crimes by Omission

Please take a look at the Lecture Notes on the website of Sixth Form Law.

Criminal Law: Unlawful Act Manslaughter, Causation: Specimen Answer

Many of you have asked me to do this so, below is Question 4 of your recent test. I have provided a specimen answer to the question. Note the organisation in the answer, the application of only the relevant cases, the analysis of the issues.

You will notice that I have not come to any conclusion as to Fitzroy's guilt or innocence of manslaughter. I have done this deliberately as I believe it is up to the jury to decide this. I have, however, discussed Fitzroy's liability, which is what is required by the question. If, however, the examiner had asked me to decide whether or not Fitzroy is guilty or not, then I would be required to state in my answer whether he is or is not guilty.

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Question 4 :

One Sunday afternoon Julia, 7 years old, was walking with some other children across a path. Julia came into contact with a live electric wire and was electrocuted. That wire had been illegally connected by Fitzroy to a Jamaica Public Service Pole and it ran across the path and a stream up to a house belonging to Fitzroy.
When efforts were made to rescue Julia from her predicament, another child, 8 year old Mark, who was using a piece of stick, received a shock and became unconscious. Mark also suffered severe burns to both his hands.
Mark was allergic to penicillin (an antibiotic) and wore an allergy alert bracelet on his right hand.
After 3 months, Mark developed an infection in the area of the burn while still in the hospital and was treated with penicillin. He had a severe allergic reaction which left him unable to breathe on his own. Six days after receiving the penicillin Mark died.

With what, if anything, can Fitzroy be charged for the deaths of Julia and Mark?

Note : this situation question has been adapted from the facts of the Jamaican case which may be found at the following citation: R v Fitroy Greenland 27 JLR 558


Sample Answer:

For both the deaths of Julia and Mark, Fitzroy can be charged for manslaughter as a result of an unlawful act. However, in the case of the charge for Mark’s death, Fitzroy may argue in his defence that the chain of causation has been broken and thus, if he is successful, he may be acquitted of this charge.

In order to secure a conviction for manslaughter by an unlawful act, the burden of proof rests on the prosecution to prove, beyond a reasonable doubt, four things.

The first thing the Prosecution must prove is that Fitzroy had actually committed an unlawful act. The case of R v Franklin held that the unlawful act must be a crime. It is submitted that the prosecution would have no problem in proving the unlawful, criminal act. In this case, the unlawful, criminal act is the illegal connection by Fitzroy of the electricity wires to the JPS Poles.

Secondly, the case of R v Lamb states that prosecution must prove that Fitzroy intended to commit the unlawful act albeit that he did not intend the tragic consequences that followed.
In order to prove the mens rea for unlawful act manslaughter, the Crown must establish that Fitzroy possessed the necessary mens rea for abstracting electricity [under the Larceny Act section 15]. The mens rea must go to the unlawful act itself. In this case, the mens rea required for the crime is maliciousness (intention or recklessness) or fraud. It must be noted, however, that it is not necessary for the prosecution to prove that the defendant realised the risk of causing some harm. As long as the reasonable man in his position would have so realised, this is sufficient mens rea.

So the Crown must show that the act was dangerous in the sense that a sober and reasonable person would inevitably recognize that it carried some risk of harm.This is the third thing to be established by the Prosecution. The case of DPP v Newbury and Jones stated that in judging whether the act was dangerous, the test is not whether the accused recognised that his act was dangerous but rather whether all sober and reasonable people would have recognised its danger.The test of whether an act is dangerous, therefore, is whether the sober and reasonable man would have appreciated that the act was dangerous in the light, not only of the circumstances actually known to the accused but also of any additional circumstances of which that hypothetical person would have been aware.

The fourth element required to be proved by the prosecution is that the act was a substantial cause of the deaths of both Julia and Mark.

To establish causation it is necessary to ask whether the defendant in fact caused the specified consequence of the offence. In other words, "But for what the defendant did would the consequences have occurred?"

In the case of Julia, it is submitted that the prosecution should have no difficulty establishing that the electric shock received by Julia was the operating cause of her death. As she received that shock because of her coming into contact with the live wire as a result of Fitzroy’s illegal electrical connection, Fitzroy would no doubt be convicted of manslaughter. In other words, but for Fitzroy’s actions, Julia would not have died. In order to escape liability, Fitzroy would, it is submitted, have to set up a defence negating either the mens rea or the actus reus.

Mark’s death, however, may have a different result. It may be argued logically that had it not been for Fitzroy’s unlawful act the sequence of events concerning Mark would not have happened, i.e. Mark would not have had to try to save Julia and thus receive the burn to his hands (which required his hospitalization) which then became infected and had to be treated with an antibiotic.

However, this argument would go too far as it would appear from decided cases that there may have been, in this case, an intervening act which broke the chain of causation. In R v Jordan, following his being stabbed by the defendant Jordon, the victim died in hospital, after receiving treatment to which he proved allergic. Even though his allergy was known, the doctors still gave him the medication to which he was allergic. It was held in that case that the treatment was palpably wrong and thus constituted a new intervening act, breaking the chain of causation. The defendant was acquitted of the murder.

However, in the case of R v Cheshire, the victim, having been shot by the defendant, had to be admitted to hospital where he received a tracheotomy. Six weeks after receiving the tracheotomy the victim developed breathing problems and it was shown that the hospital had been negligent in its treatment of the victim as they had not properly recognized the cause of the victim’s breathing problem. The court held that this did not break the chain of causation. So long as the defendant’s actions contributed significantly to the death, his actions need not be the sole or even the main cause of death. The court further stated that medical negligence or even recklessness did not exclude the defendant’s liability unless it (the medical negligence/recklessness) was so independent of his acts and so potent as to make his own contribution insignificant. Only in the most extraordinary and unusual case would treatment, whether right or wrong, given in good faith by a generally competent doctor, be regarded as independent of the original injury.

It was further emphasized in R v Smith that if, at the time of death, the original wound was still an operating cause and was still a substantial cause of the death, then death can be said to be a result of the wound even though some other cause is also operating.
Only when the second cause of death is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.

Fitzroy could raise this issue as a defence to the charge against him for Mark's death. In doing this he might very well be successful in, at least, raising some doubt in the minds of the jurors that the treatment received by Mark in hospital was a new intervening act which broke the chain of causation between his unlawful act and Mark's subsequent death.

If the prosecution is not able to overcome this reasonable doubt in the minds of the jury, then they have not successfully proved that Fitzroy's act caused Mark's death.

Fitzroy would be acquitted of the charge of manslaughter (by an unlawful act) of Mark.

(c) wrongjungle 2007.

Criminal Law: Strict Liability: Dangerous Drugs Act -Jamaica

Below are important sections of The Dangerous Drugs Act :

1. Definition of Ganja:
Section 2: “ganja” includes all parts of the plant known as cannabis sativa from which the resin has not been extracted and includes any resin obtained from that plant, but does not include medicinal preparations made from that plant;

2. Taking Steps preparatory to exportation of dangerous drugs:
Section 13 (5) : Every person who exports, causes to be exported, or takes any steps preparatory to exporting, any dangerous drug from the Island except under and in accordance with, the provisions of this Act shall be guilty of an offence against this Act.

Section 7A (1) Every person who imports or exports or takes any steps preparatory to exporting ganja shall be guilty of an offence…

(2) Where there is evidence-

(a) that the ganja for which an accused person has been charged under this section is packaged in such a way as to make it reasonably suitable for exporting; or
(b) that the ganja for which a person is charged was found to be in or at any prescribed port or place,

that evidence shall be prima facie evidence of steps being taken preparatory to the exporting of the ganja by the person charged.

Section 7B. Every person who deals in ganja; or

(a) cultivates, gathers, produces, sells or otherwise deals in ganja; or

(b) being the owner or occupier of any premises, uses such premises for the cultivation or storage of ganja or the selling or otherwise dealing in ganja or knowingly permits such premises to be so used;
or
(c) uses any conveyance for carrying ganja or for the purpose of selling or otherwise dealing in ganja, or being the owner or person in charge of any conveyance, knowingly permits it to be so used,

shall be guilty of an offence

3. Possession of Ganja :

Section 7C : Every person who has in his possession any ganja shall be guilty of an offence…

>>>Case Law:

1. Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (upheld in R v McNamara (1988) 87 Cr App R 246) :

This case concerned possession of prohibited drugs. D who sold scent as a side line, collected two boxes which had been left for him at a cafe. One box contained scent, the other controlled drugs. D said he assumed both boxes contained scent.The Court of Appeal held that if D was in possession of the box and he knew the box contained something, he was inpossession of the contents, whatever they were.

-Criminal Law by J.C. Smith & Brian Hogan 7th edition

2. R v Lewis (1987) 87 Cr App R 270 :

The tenant of a house might be found to be in possession of drugs found on the premises although he did not know they were there provided he had the opportunity to find out that they were. Possession was being 'knowingly in control of a thing in circumstances which have involved an opportunity (whether availed of or not) to learn or discover, at least in a general way, what the thing is'.

-Smith & Hogan Criminal Law by David Ormerod 11th edition

3. R v Brian Bernal & Moore P.C App 56/96 [28.4.97]:

Issue: What is the Mens Rea required where accused charged with possession of ganja which is in a sealed container?

The court must be satisfied that the accused knew :

a. that he had the container; and

b. that the prohibited substance was in the container

4. R v Sylmore Dawkins RMCCA 77/89 [6.3.90] :

At a Jamaican airport a police dog sniffed out a piece of luggage while it was at the baggage chute. The baggage tag bore the name of Sylmore Dawkins. Dawkins claimed the suitcase when he was boarding the plane. When the suitcase was opened several tins were found and in them were vegetable matter resembling ganja.

Issue : was there sufficient evidence from which the inference could be drawn that the appellant had knowledge that the tins contained ganja?

The court held that the totality of the evidence was sufficient, to allow the learned resident magistrate to draw the inference she did and to conclude from all the circumstances that the appellant knew that ganja was in the tins.

- Harrison's Law Notes & Materials (2000)

Section 7D. Every person who-

(a) being the occupier of any premises knowingly permits those premises to be used for the smoking of ganja; or

(b) is concerned in the management of any premises which he knows is being used for such purpose as set out in paragraph (a); or

>>> Case Law :

1. Westminster City Council v Croyalgrange Ltd [1986] 2 All ER 353 :

...it is always open to the tribunal of fact...to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from enquiry because he suspected the truth but did not want to have his suspicions confirmed.

c) has in his possession any pipes or other utensils for use in connection with the smoking of ganja; or

(d) smokes or otherwise uses ganja, shall be guilty of an offence