Crimes Against Life Flashcards
Murder
What is Murder?
The unlawful and intentional causing of death of another living human being
-‘Causing of death’ is much wider than ‘killing’ bc it can be a direct and active act or it can even be an inaction/omission
Murder
What are the 4 major elements of murder?
o Causing the death
o Of a person
o Unlawfully
o and intentionally
Murder
What are the facts of the Compos case regarding murder?
- A baby was diagnosed with batter baby syndrome. Social services were called upon to
intervene in this situation but they cleared the parents (meaning that the parents were not in trouble for battering their baby).
-A few months after being cleared, the baby died.
According to the facts of the case, the spine of baby was broken. The mom alleged that the baby couldn’t breathe so the mom bent the baby backwards which ‘accidently’ broke the baby’s spine
-The pathologists said that a spine can only break this way in car crash or plane crash
Murder
What did the court in th Compos case state regarding the crime of murder?
-The trial court sentenced the mom to 15 years prison for murder bc she should have foreseen that eventually the baby will die based on the abuse it was suffering.
- “should have foreseen” does NOT speak to intention. However, intention is an essential element of murder. For this reason, the accused appealed and said that for murder to be the charge there has to be intention.
-Therefore, the SCA reduced her sentence to culpable homicide (7 years imprisonment)
-Culpable homicide is based on negligence. Murder is based on intention.
Murder
What did teh court state in the Nkuna decision regarding the crime of murder?
**-Legal question: can someone be found guilty of murder when there is no deceased body that can be found? **
Facts: A policewoman went missing. There was evidence to convict her boyfriend. The court held that you can charge someone with murder even if no body can be found,
provided that there is enough circumstantial evidence based on public policy
-When there is no body, the circumstantial evidence must have probative force to warrant a conviction, there must be no ground for reasonable doubt, and there must be a reasonable explanation as to why the body cannot be found
-Therefore, the court convicted the accused of murder even though the deceased’s body was missing
Murder
What did the PM case state regarding the difference between* planned and premeditated murder?*
o Premeditated → deliberately rationalising and calculating the likelihood of success of the murder and getting away with it
o Planned murder → planning a murder strategy in advance to achieve a goal
The purpose of this ruling is to show us that planned/premeditated murder is methodical, well thought out, and carried out not only to kill the victim, but to also ‘get away with it’
Murder Elements
How does the 1st element of murder: causing the death operate?
-The killing/causing of death must be a voluntary positive act or omission
-The act/omission must be the factual and legal cause of the death
Moment of death:
* Traditional test = cardio-pulmonary test (collapse of the heart or lungs)
* Modern test = Brain stem death vs neo-cortical death
▪ Brain stem death → Williams case
▪ Also called clinical death> The brain cells have died and no brain activity
Neo-cortical death → Clarke v Hurst case
▪ Also called social death → there is no emotional cognition but the body is still working albeit in a permanent vegetative state.
> Moment of deat depends on the context also by taking into account the social/legal/cultural issues
Murder Elements
How does the 2nd element of Murder: Another Human Being operate?
Grotjohn case:
o Facts: there was a married couple. The wife was paralysed and asked her husband to kill her bc she was unhappy. The husband felt trapped but he handed her a gun and then she shot herself.
o The husband was charged with murder even though he didn’t pull the trigger
o Court held: suicide or attempted suicide is not a crime However, instigating suicide or assisting another person to commit suicide is a crime
Murder Elements
What is infanticide and how does it operate as the 2nd element of murder?
2nd Element Another person
**o Infanticide = causing the death of an infant **
o sec 113 of the General Law Amendment Act provides
▪ Disposing of a child with the intent of concealing its birth – it does not matter whether the child died before, during, or after birth. When a baby is born (dead or alive) you have to register its birth or else you are committing an offence
▪ Disposing of a child’s dead body without a lawful burial order. This means that when a baby dies, you have to register its death. If you don’t, then you will be guilty of an offence
Murder Elements
What did the Molefe case state regarding the crime of infanticide?
- Not murder, but a statutory offence for failing to register a stillborn child or achild who died shortly after birth in accordance with the Birth and Death Registry
- Conviction was set aside (essential elements were absent)
Murder Elements
How does the 3rd element of murder: Intention operate?
-An act of killing does not constitute murder if intention is absent
-If intention is absent, then the act of killing amounts to culpable homicide
-A subjective test (inferred from objective facts) is applied in order to test for intention
-Intention is present when there is an awareness of the unlawfulness of the act
Murder Elements
How does unlawfulness operate as the 4th element of murder?
Robinson case:
-whether the intentional and unlawful taking of a man’s life, at his own request, renders the killers less blameworthy and so constitutes extenuating circumstances?
-* Consent does not exclude criminal responsibility of the accused BUT is considered to be an extenuating circumstance
* CANNOT consent to one’s own murder contra bones mores
Murder Elements
What did the **Nkwanyana **case state regarding unlawfulness as an elemnt of murder?
The deceased asked the accused to kill her because she failed in all her suicide attempts. He reluctantly agreed and then killed her+confessed to the crime
-Court held: the punishment should fit both the criminal and the crime. Punishment should
be fair to the accused and to society, and should be blended with a measure of mercy
-The court found it fit to extend mercy to the accused in this case → he was thus given a suspended sentence (meaning he was released)
The court considered the noble intentions of the accused. But the current position in our law still remains that this is the unlawful killing of another person
-consent is irrelevant for the purposes of conviction, but consent can be found to be an extenuating circumstanc
Murder
What did the court in the Agliotti case state regarding the Euthanasia and assisted suicide as acrime of murder?
Court held: it remains the position in our law that you cannot assist someone to commit suicide despite them requesting it and despite your noble intentions. Anyone who does this or even conspires about it is guilty of an offence
Murder
What is assisted suicide?
> Occurs when a person having emotional
problems or stress requests another person to
kill him by any means
The person is still the direct cause of their own
death
Intentionally killing oneself with the assistance
of another person who provides the means,
knowledge, or both
Not limited to medical procedures
