Criminal Law: Elements of Murder and Available Defenses

Criminal Law 1
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Institution
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Criminal Law 2
CRIMINAL LAW
Question 1
The law on murder has developed from common law. It refers to the act of unlawful
killing of a human being with malice aforethought. This means that the act that leads to the
killing should be one that had been planned prior to the act. There are two elements that have to
be present for a person to be accused, charged and convicted of murder.
The first element is known as actus reus. This element entails the unlawful killing of a
human being. The other important element of murder is mens rea. This element in murder is the
malice aforethought which courts have stated to involve the intention that a person harbors and
ends up in the killing of a human being or causing grievous bodily harm to such person or human
being. The charge of murder is one that carries a mandatory sentence and every judge faced with
sentencing a murder suspect cannot impose a lesser sentence.
Both mens rea and actus reus must exist for a person to be convicted of having
committed murder. Where one element especially the mental one (mens rea) the charge of
murder would be reduced to manslaughter where there is accidental killing of a human being.
In assessing Davina’s liability for murder, the two elements for murder have to be established
to have existed at the time of commission of the Act that led to the death of Anne. Unlawful
killing of a human being therefore involves an act or omission. Therefore, there are two
issues to be determined in this case scenario:
1. Whether Davina had the requisite mens rea for murder
2. Whether Davina had actus reus for murder.
Mens rea for murder is malice aforethought. It requires a prior planning before the execution of
the killing. Courts have interpreted it to involve intention to kill or the intention to cause

Criminal Law 3
grievous bodily harm. In the case of R v Vicker1, Lord Goddard CJ described murder to involve
the killing of a human being with malice aforethought.
The victim should also die as a result of the injuries occasioned on his or her person by
the act of the accused person. Similarly in the case of R v Cunningham2 House of Lords, the
House of Lords maintained the description of mens rea to the intention to kill or cause grievous
bodily harm. Mens rea for a charge of murder has been held not only to apply to the direct intent
but would also extend to the oblique intention established in the case of R v Woollin 3
Davina was upset with Anne as a result of Anne’s act of stealing her boyfriend. In an
attempt to frighten Anne so that Anne leaves her boyfriend Davina poured white spirit through
the letter box of Anne’s flat and lit a fire. Anne was overcome with smoke, got serious burns and
rushed to the hospital. The doctor at the hospital transfused a different blood sample that led to
the death of Anne. Davina did not have the necessary means rea, her intention was only to
frighten Anne into leaving Bill. She therefore lacked the requisite mens rea for murder.
On whether Davinna possessed the second element of murder, actus reus, the unlawful
killing of a human being.4 This can be committed through an act or omission. The death resulting
from such death should be linked to causation. The question that should be asked is whether the
said death resulted directly from the act of the accused person or there were other intervening
acts that led to the said death.
1 (1957) 2 QB 664
2 (1982) AC 566
3 (1999) AC 82.
4 Ormerod, David, Karl Laird, John Cyril Smith, and Brian Hogan Smith and Hogan's criminal law (Oxford University
Press, USA, 2015)