Criminal Law Problems Issues - Essay Example

I Neither Edward nor Sarah is criminally liable for the death of Lisa whichever it is founder either on unlawful act unlawful act manslaughter oron gross negligence. Section 23 of the Offences against the Person Act 1861 or the Act provides: "Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of [an offence] and being convicted thereof shall be liable... to [imprisonment] for any term not exceeding ten years..." Interpreting the foregoing provision in the case of R. v Kennedy (Simon) [2007] 4 All E.R. 10831, the court ruled that a defendant cannot be held criminally liable for manslaughter where the defendant was merely involved in the supply of a controlled drug which drug was subsequently self-administered by the deceased to whom it was supplied freely and voluntarily. The relevant facts in the Kennedy case are substantially similar to the facts in the given problem. In Kennedy, as in the case of Edward, the defendant merely prepared a dose of heroin for the deceased. It was the deceased who self-administered the drug as in Lisa's case. In the Kennedy case, the court ruled that defendant Kennedy cannot be held criminally liable for manslaughter. Applying the Kennedy ruling, then Edward cannot likewise be held criminally liable for Lisa's death because Edward was not the one who injected the deceased with the drug. Under the same principle, Sarah cannot likewise be held criminally liable for Lisa's death as she was not the one who injected Lisa with the drug. Notably, Edward (unlike in Kennedy) was not also the one who gave the syringe to the deceased. If Kennedy (who was the one who gave the syringe to the deceased) is not criminally liable, then a fortiori Edward should not also be held criminally liable for Lisa's death since he was not even the one who gave the syringe to the deceased. In ruling for the defendant, the Kennedy court had occasion to discuss the elements of the crime of unlawful act manslaughter: (1) that the defendant committed an unlawful act; (2) that such unlawful act was a crime and (3) that the defendant's unlawful act was a significant cause of the death of the deceased. In the given problem, Edward admittedly committed an unlawful (and criminal) act by supplying the heroin to the deceased. The mere act of supplying heroin, however, could not have possibly caused Lisa's death since "the supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quantity which was dangerous."2 Clearly, any unlawful act manslaughter charge cannot be based on the mere act of supplying the heroin. According to the Kennedy court, the heroin (as in the given problem) is described as "freely and voluntarily self-administered" by the deceased: "The appellant supplied the heroin and prepared the syringe. But the deceased had a choice whether to inject himself or not. He chose to do so, knowing what he was doing. It was his act." Such act was the novus actus interveniens breaking the chain of causation. In the given problem, it is undisputed that Lisa's action of injecting herself was the result of a voluntary and informed decision. Just like in the Kennedy case, the Dalby case and R v Dias3, Edward "merely supplied the drug to the deceased, who then had a choice, knowing the facts, whether to inject himself or not." Neither did Edward administer the drug as the heroin was self-administered by Lisa alone nor did Edward cause the drug to be administered to or taken by Lisa. In view of the foregoing reasons, Edward cannot be held criminally liable for unlawful act manslaughter because Edward was merely involved in the supply of a controlled drug which was later subsequently self-administered by Lisa to whom it was supplied freely and voluntarily. Under the facts in the given problem, Lisa appears to be a fully-informed and responsible adult. Moreover, Edward and Sarah cannot likewise be held criminally liable for Lisa's death upon a charge of gross negligence manslaughter. In the case of R. v Khan (Rungzabe)4, it was ruled that that "manslaughter by omission was a type of manslaughter arising from a breach of duty coupled with gross negligence." To be criminally responsible for an omission, the defendant had to have a relationship with the victim of such a nature that a duty to act arose. In the Khan case, defendant drug dealers supplied the victim with heroin. When the victim went into a coma after using heroin in large quantity, the defendants left the victim. When defendants returned the next day, the victim died. In Khan, the judge convicted the defendants of manslaughter by omission. In reversing the judgment of conviction, the court stated that in the case of manslaughter by omission, it is necessary to consider the following: (1) whether a duty of care was owed by the accused to the victim; (2) whether there had been a breach of that duty; (3) whether the breach caused the death of the victim; and (4) whether the breach in question amounted to gross negligence and thus a criminal act. In Khan, the actus reus relied upon by the prosecution was defendants' failure to ask medical help but it was not shown whether defendants had such duty to summon such assistance. The court further stated that "to impose a duty on a drug dealer to summon medical help for a user suffering an overdose would have the effect of adding to the categories of person to whom such a duty was owed." For Edward and Sarah to be convicted of gross negligence manslaughter, it must first be shown, applying the Khan case, that Edward and Sarah had a relationship with the Lisa of such a nature that a duty to act arises and that they had a pre-existing duty to act.5 Based on the given set of facts, it appears that Edward, Sarah and Lisa are good friends. In Lowe [1973] Q.B. 702, the parties were an ascendant and descendant. In Stone [1977] Q.B. 354, the parties were in laws. In Adomako6, it was a doctor-patient relationship. In other cases, the duty might arise from a contract like a grossly negligent electrician.7 While there is no authoritative definition of the categories of person who owe a duty to another for the purposes of the law of manslaughter,8 Smith and Hogan, however, stated that "persons who jointly engage in a hazardous activity whether lawful--like mountaineering--or unlawful--like drug abuse--may also owe duties to one another." In the given problem, assuming that Edward and Sarah had a duty to summon medical assistance considering their relationship9 with Lisa, the facts of the given problem disclose that Edward and Sarah did not breach that duty because when they found out that Lisa was unconscious, they "immediately call for an ambulance." The prosecution may not validly argue that Edward and Sarah should not have fallen asleep as arguably and by human nature, there is no such legal duty, even with very close friends to be always awake. As a good friend, their duty to Lisa was to summon medical assistance which Edward and Sarah did as soon as they found out that Lisa was unconscious. Edward and Lisa, therefore, cannot be held liable for gross negligence manslaughter. The Khan court observed that it is for the judge to rule whether a duty was capable of arising based in the nature of relationship of the parties and for the jury to decide whether it did arise in a given case. However, it is not clear what criteria should the jury apply in making such decision. It is suggested that the better alternative is for the judge to make such decision.10 In summary, neither Edward nor Sarah is criminally liable for the death of Lisa whether founded either on unlawful act manslaughter or on gross negligence manslaughter. II Edward is criminally liable for infecting Sarah with HIV regardless of whether or not Edward has actual knowledge that he is HIV positive. Section 20 of the Act provides that whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of [an offense] and being convicted thereof shall be liable . . . to [imprisonment]. In the case of R. v Dica (Mohammed) [2004] 3 All E.R. 59311, the accused had actual knowledge that he is HIV positive but failed to inform his partner about it. It was ruled that a defendant who knows or believes he is infected with a serious sexually transmitted infection and recklessly transmits it to another through consensual sexual activity can be convicted of an offence of inflicting grievous bodily harm under Section 20 of the Act. In the given problem, if Edward had actual knowledge that he is HIV positive, and knowing the risk on transmission through a needle, then his act on injecting Sarah will render him liable for grievous bodily harm. Edward may argue that since Sarah knows that sharing a needle could run the risks of HIV infection and knowing such, she still continued to share a needle with Edward, then Sarah has given her consent. While in Dica, it was ruled that if the victim consented to the risk of infection, then that consent could provide a defence, it was emphasized in R. v Konzani (Feston) [2005] 2 Cr. App. R. 1412 that for consent to the risk of contracting HIV to provide a defence, the consent had to be an informed consent: R. v Dica (Mohammed) [2004] EWCA Crim 1103, [2004] Q.B. 1257 and R. v Barnes (Mark) [2004] EWCA Crim 3246. In the Konzani case, the accused was convicted of inflicting grievous bodily harm on three women under the Act because the accused had had unprotected consensual sexual intercourse with three women without having disclosed that he was HIV positive. When the women contracted the HIV virus from the accused, it was stated that if the consent of the women is a defence, such consent must be an informed and willing consent to the risk of contracting the HIV virus, i.e. "willingly" meant "consciously" and involved knowing the implications of infection with the virus. In the given problem, the facts disclose that Sarah was not informed of the fact that Edward is HIV positive and hence, Edward may not avail of the defence of consent. Furthermore, if Edward does not actually know that he is HIV positive, he can still be criminally liable for inflicting grievous bodily harm under the Act. While the Dica and Konzani cases only involves a defendant who had actual knowledge regarding their condition, it is submitted that even if a defendant had no actual knowledge that he is HIV positive, such defendant may still be held criminally liable for inflicting grievous bodily harm under the Act. In fact, commentators have been debating whether Section 20 can be used against an accused who is not actually aware that they are HIV positive because he has not been medically tested.13 Weait argued that to be reckless, actual knowledge must be proven.14 Bronitt, however, counter-argues that recklessness may not require actual knowledge since an accused maybe aware of a risk of infecting another by engaging in unsafe practices.15 While Dica and Konzani do not discuss which view is the acceptable view since in both cases the accused knew that they were HIV positive and thus that issue of actual knowledge was immaterial, Lord Justice Judge16 in Dica stated that: "To infect an unsuspecting person with a grave disease you know you have, or may have, by behaviour that you know involves a risk of transmission, and that you know you could easily modify to reduce or eliminate the risk, is to harm another in a way that is both needless and callous. For that reason, criminal liability is justified unless there are strong countervailing reasons. In my view there are not."17 Hence, it is submitted that actual knowledge by the accused of his HIV positive status is unnecessary and immaterial for a finding criminal liability under Section 20 of the Act. Hence, Edward is still criminally liable for Sarah's HIV infection even assuming that he has no actual knowledge of his HIV positive status. In summary, Edward is criminally liable under Section 20 of the Act for infecting Sarah with HIV regardless of whether or not Edward has actual knowledge that he is HIV positive. Read More