Court of Appeal
| DOI | 10.1177/002201838705100102 |
| Published date | 01 February 1987 |
| Date | 01 February 1987 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
MALICE AFORETHOUGHT-FURTHER CLARIFICATION
R.
v.
Nedrick
In endeavouring to crystallise the effect
of
the Law Lords’ speeches
in
R.
v.
Moloney
[1985] 2 WLR
648,
and
R.
v.
Hancock and
Shankland
[
19861 2 WLR
357,
the Court
of
Appeal in the present
case, ([1986]
1
WLR 1025), has provided the clearest guidance to
date regarding the direction to be given by a trial judge to the jury as
to the mental state they must find to exist in a defendant if murder is
to be proved in cases where death results from the doing
of
a
manifestly dangerous act by that defendant but where the latter’s
primary desire or motive at the time
of
acting was not to kill or cause
harm to anyone.
The defendant had a grudge against a woman and, having earlier
threatened to “burn her out”, he went to her house early one
morning, poured paraffin onto the front door
of
the house and
through the letter-box, and set it alight. The house was burnt down
and a boy inside died
of
asphyxiation and burns. The defendant
confessed to having started the fire but claimed that he had not
wanted anyone to die but had only wanted to frighten the woman.
At his trial for murder his defence was that he had neither started
the fire nor made any admissions to that effect. The defendant was
convicted
of
murder after the trial judge, in directing the jury on the
requisite mental element for murder, had stated that as an
alternative to an intention on the defendant’s part to kill
or
to cause
serious injury, it would suffice for murder if, on setting fire to the
house, the defendant knew that it was highly probable that that act
would result in serious bodily injury to someone inside the house,
even though he did not desire to bring about that result. The
defendant appealed against conviction to the Court
of
Appeal on
the ground that the trial judge had misdirected the jury on the intent
necessary to establish a charge
of
murder.
The Court
of
Appeal allowed the appeal, quashed the conviction
of
murder and substituted a verdict
of
manslaughter. The judgment
23
Journal
of
Criminal Law
of
the Court was read by Lord Lane
C.J.
who observed that the trial
judge’s direction on the mental element in murder had been given
before the publication
of
the speeches in the House
of
Lords in
Mofoney
and
Huncock,
in the light
of
which it was clearly wrong.
His Lordship confirmed that
so
far as the mental element in murder
was concerned, a jury simply had to decide whether the defendant
intended
to
kill
or
do serious bodily harm and that in order to reach
that decision the jury had to pay regard to all the relevant
circumstances, including what the defendant himself had said and
done.
A
direction to that effect would be enough in the great
majority
of
cases, Lord Lane stated, particularly where the
defendant’s actions had amounted to a direct attack upon his victim,
because in such cases the evidence relating to the defendant’s desire
or
motive would be clear and his intent would have been the same as
his desire or motive. His Lordship, however, recognised the need
for the Court to attempt to crystallise the effect of the speeches in
Mofoney
and
Hancock
so
as
to
assist judges called upon to give
further directions
to
a jury as to the mental state which they had
to
find to exist in the defendant
if
murder was to be proved in the kind
of
case, such as the present, where the defendant did a manifestly
dangerous act which resulted in someone’s death but where the
defendant’s primary desire
or
motive might not have been
to
harm
anyone.
Lord Lane stated that, in such cases, it might be advisable first
of
all
to
explain to the jury that a man might intend to achieve a certain
result whilst at the same time not desiring
it
to come about. Then,
since in
Huncock
the House had decided that the
Mofoney
guidelines required a reference to probability, Lord Lane took the
view that, when determining whether the defendant had the
necessary intent, it might be helpful for a jury
to
ask themselves two
questions:
(1)
How probable was the consequence which resulted
from the defendant’s voluntary act?
(2)
Did he foresee that
consequence? His Lordship explained that
if
the defendant did not
appreciate that death
or
serious harm was likely to result from his
act, he could not have intended
to
bring
it
about. If he did, but
thought that the risk to which he was exposing the person killed was
only slight, then
it
might be easy for the jury to conclude that he did
not intend to bring about that result. On the other hand,
if
the jury
were satisfied that at the material time the defendant recognised
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