The Elusive Element of “Unlawfulness”
| Published date | 01 September 1965 |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb02914.x |
| Author | Richard F. Sparks |
| Date | 01 September 1965 |
600
THE
MODERN
LAW
REVIEW
VOL.
5%
the appellant’s general practitioner before the appellant went into
hospital for his examination, and his own character as revealed in
the witness box, the jury was entitled to find it probable that:
1.
Had the surgeon given an adequate answer to the question
put to him by the appellant, this answer would have given rise to
further conversation
or
inquiries; from which-
2.
It
would have emerged that there was some risk, albeit very
small, of the appellant losing a leg; and that-
8.
In this event the appellant would have withdrawn (as he
said on oath that he would have withdrawn)
from
the procedure.
D.
L.
MATHIESON.
THE ELUSIVE ELEMENT
OF
“
UNLAWFULNESS
”
THE decision of the Court of Criminal Appeal in
R.
v.
Church‘
touches
on
two problems of importance
in
the law of homicide-
namely the doctrine of
“
constructive manslaughter
”
and the
so-
called
Thabo
Meli
problem-but regrettably does little to clarify
either one.
C.
was charged with murder of a woman whose badly
injured body was found in a river. His story was that he had
taken the woman to his van for sexual purposes, was mocked by her
for failing to satisfy her, and, a fight ensuing, knocked her semi-
conscious. He tried to rouse her for about half an hour, then,
thinking she was dead, he panicked and threw her into the river.
Medical evidence showed that the injuries inflicted by
C.
were likely
to have caused unconsciousness and eventually death, but that the
woman was akve when she went into the river and died from drown-
ing.
C.
was acquitted
of
murder but convicted of manslaughter;
and he appealed against this conviction on the ground,
inter
alia,
that the trial judge (Glyn-Jones J.) had misdirected the jury as to
the relevance of
C.’s
belief that the woman was dead when he threw
her into the river.
When directing the jury on murder, the judge told them that
if
C.
believed that the woman was already dead when he threw her into
the water they should acquit him, since the act which caused death
would not have been actuated by an intention to cause death
or
grievous bodily harm. The Court of Criminal Appeal said that
this direction was unduly benevolent, and that
“
the jury should
have been told that it was still open to them to convict of murder,
notwithstanding that the appellant may have thought that his blows
and attempt at strangulation had actually produced death when he
threw the body
into
the river,
if
they regarded the appellant’s
behaviour from the moment he fist struck her to the moment when
he threw her into the river as a series of acts designed to cause death
or
grievous bodily harm.”
1
2
Ldrnund
Dsvies,
Marshall
and Widgery
JJ.
8
[1965]
2
W.L.R.
1220
at
p.
1224; [1965]
2
All
E.R.
72
at
p.
74.
19651 2
W.L.R.
1224l; [1965]
2
All
E.R.
72.
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