The Twice-Killed Corpse—A Causation Issue
| Author | Elizabeth Macdonald |
| DOI | 10.1177/002201839505900207 |
| Published date | 01 May 1995 |
| Date | 01 May 1995 |
| Subject Matter | Article |
THE
TWICE-KILLED
CORPSE-
A
CAUSATION
ISSUE
Elizabeth Macdonald*
Introduction
Someone cannot be guilty
of
murder if they accidentally run down the
person they intended to shoot the next day. In order for it to be murder the
defendant must generally have the necessary mens rea at the time when he
performs the act' which causes the death. In other words, the relevant part
of the actus reus? (for the purposes of this article), the act causing
death, must generally be contemporaneous with the mens rea and that
contemporaneity requirement is not confined to murder but applies generally
throughout the criminal law.' However, the courts have developed an
exception to this general requirement of contemporaneity in relation to
murder and manslaughter in a number
of
cases" (the 'contemporaneity
cases') where the death did not immediately ensue from an act accompanied
by mens rea but from a subsequent act which was designed to conceal what
had occurred and which was not accompanied by mens rea.
It
is the need
for any exception to the general requirement of contemporaneity in that
situation' which will be questioned here.
It
is the purpose
of
this article to
argue that the most recent
of
those cases, RvLe Brun
[1992]
I QB
63,6
contains the seeds of a more satisfactory approach to the problem
encountered in the 'contemporaneity cases' and one which does not involve
any exception to the general requirement of temporal coincidence of the act
forming the relevant part of the actus reus and mens rea.
It
will be contended
that, provided the act forming the relevant part of the actus reus is
appropriately identified, there is no lack
of
contemporaneity and the
problem can be dealt with simply as a matter
of
causation.
The 'contemporaneity cases'
This issue of contemporaneity arose in the Privy Council decision of R v
Thabo Meli
[1954]
I WLR 228, which illustrates the problem well. In that
•Lecturer in Law, University of Wales, Aberystwyth.
1In appropriate circumstances an omission will suffice.
2The actus reus can encompass such matters as surrounding circumstances or, as in the
case of murder, results (ie the death of the victim).
3See eg RvFagan [1969)1 QB 439. See also note 5 below.
4RvThabo Meli [1954) I WLR 228, RvMoore and Dome
[1975)
Crim LR 229, Rv
Church [1966)1 QB 59, RvLe Brun
[1922)
1 QB 63.
5In RvFagan [1969) 1 QB 439 the relevant part of the actus reus was extended beyond
its natural compass to avoid non-contemporaneity, but the need to do so could be avoided
if the actus reus was identified as an omission rather than an act and the reasoning in Rv
Miller [1983)2 AC
161
followed.
6See also S v Masilela [1968) (2) SA 559.
207
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