Murder

Murder

'The unlawful killing of a person in being, under the Queen's Peace, with malice aforethought, express or implied'.
Unlawful killing of a person in being, under the Queen's Peace
1. The killing must be unlawful.
  1. It is lawful if done in self-defence or in the prevention of a crime.
  2. Can be a voluntary act or omission, but it must cause the death of V
2. D must kill a person in being
  1. V must have a separate existence from the mother and have an independent circulation
    1. Therefore killing a foetus is not murder: ATTORNEY-GENERAL'S REFERENCE (NO.3 OF 1994) (1997)
  2. A person who is brain dead is not a person in being: MALCHEREK
3. Under the Queen's Peace
  1. Killing of an enemy in the course of war is not murder.
    1. The killing of a prisoner of war would be sufficient for the actus reus of murder
Malice aforethought, express or implied by law
1. Intend to kill (express malice aforethought)
2. Intend to cause GBH (implied malice aforethought)
  1. GBH means 'really serious harm': DPP v SMITH or 'serious harm': SAUNDERS
3. Can be guilty of murder even if D did not intend to kill: VICKERS
4. Cannot have the mens rea to kill or cause GBH to a foetus as it doesn't have a separate existence from the mother: ATTORNEY-GENERAL'S REFERENCE (NO.3 OF 1994) (1997)
5. D may directly intend to kill or do GBH: MOHAN
6. D may indirectly kill or cause GBH: WOOLIN
D can be guilty if he intended to commit a similar crime but against a different V (Transferred Malice): ATTORNEY-GENERAL'S REFERENCE (NO.3 OF 1994) (1997)
The actus reus and mens rea must be present at the same time
1. Exception to this coincidence principle is where the actus reus is part of a larger transaction
  1. Will be sufficient if D forms the mens rea at any point during that transaction: THABO MELI

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