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Not so obvious

equalbutcrimesceneWith the greatest of respect to the Editor, as a lawyer I should know by now not to rely on the media for the full facts. I, like the rest of Barbados, was up in arms at the report that a man had been charged with manslaughter relating to the death of a child crushed by a car which the man was not driving.

The man, it was reported, was attempting to retrieve his property which was being withheld from him. The earliest reports failed to inform the public that said man had been allegedly attacking the driver of the vehicle with an offensive weapon and the driver was attempting to preserve his life. The last sentence changes my perspective somewhat drastically.

In the case of DPP v Newbury (1976) 62 Cr. App. R. 291 the court indicated that the offence of manslaughter would be proven where a “person … intentionally did an act which was unlawful and dangerous, and that act caused the death of another person”.

The act which causes the death must be such that any reasonable person would recognise the risk of serious harm and it is not necessary to show that the accused person knew that his acts were either unlawful or dangerous. Everyone understands the general connection between an unlawful act and the death of the person at whom such act was aimed but difficulty arises where the death of an unrelated person is the result.

In R v Pagett (1983) 76 Cr. App. R. 279 the accused had shot at police officers who were attempting to arrest him and used his pregnant 16-year old girlfriend as a human shield. The officers returned fire, the girl was killed and the accused charged with her murder.

The English Court of Appeal gave examples of conduct which would not result in relieving the accused of criminal responsibility, such as acts used in self-defence and those performed pursuant to a legal duty.

The court stated: “There can, we consider, be no doubt that a reasonable act performed for the purpose of self-preservation, being of course itself an act caused by the accused’s own act, does not operate as [an intervening act] … it was held as a matter of law that, if the victim acted in a reasonable attempt to escape the violence of the accused, the death of the victim was caused by the act of the accused.”

In R v Mitchell [1983] Q.B. 741 the appellant, during the course of an argument assaulted an elderly man causing him to fall against an 89-year-old woman who also fell to the ground suffering an injury which required surgery. The woman died of complications and the appellant was charged with manslaughter.

The court found that he had committed “an unlawful and dangerous act, and the victim’s injury was a direct and immediate result of that act, thereby causing her death, the fact that the appellant’s act was not aimed at the old lady or resulted in direct physical contact with her was immaterial…”

It does not mean that the person will be found guilty as a matter of course where death of the third party is the result. The elements of the offence for which he charged must still be proven, for example, murder requires malice aforethought or an intention to kill or cause grievous bodily harm.

The question in the case under discussion would be whether he was so provoked by the withholding of his property that he could be afforded some defence. In Mancini v DPP [1942] A.C. 1 the court stated that provocation must be of a quality and kind that temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death.

It will be necessary to consider the nature of the act by which death is caused, the time which elapsed between the provocation and the act which causes death, to the offender’s conduct during that interval and to all other circumstances tending to show the state of his mind.

“The mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.” It is a question of whether attacking someone with a cutlass is proportional to the theft of goods.

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