LAWS202: Transferred Malice Notes (ALL) PDF

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LAWS202: Criminal Law
Transferred Malice Notes All...

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Elements of an Offence: Transferred Malice Narayan v Police HC Chch

General Principle:

“If a defendant with the mens rea of a particular crime causes the actus reus of the same crime, he is guilty even although the result is an unintended one.” Agnes Gore’s Case (1611) 9 Co Rep 81 Agnes Gore wanted to kill her husband. She waits until he is sick, and he goes to get medicine. She stirs rat poison with the medicine. He gets sick but does not die. His father comes around to check on him and they have a conversation saying what do you think is the cause of this. The father tries it and get sick. They go back and ask the pharmacist and ask what is wrong with it? The pharmacist takes and dies. Can we charge Agnes Gore with the murder? Court states in this situation she can be found guilty Transfer the intention across to the pharmacist. “If A put poison into a pot, to the intent to poison B and set the same in a place where she supposed B will come and drink thereof, and by accident one C unto whom A had no malice, commit, and of his owned will taketh the pot and drink thereof, of which poison he dyeth, this is murder in A for the law couplet the event with the intention, and the end with the cause.” Latimer (1886) 17 QBD 359 Man decides he is going to smash other guys face in with a belt. The belt impales into the side of a woman’s head and she is severely injured. He caused the same harm so we can transfer the same malice across. Once a rule has been around for a certain amount of time, we are stuck with it…. Old Rule, but criticised AGs Reference No 3 of 1994 [ 1997] 3 All ER 936- AG refers it to House of Lords. This rule is usually referred to as the doctrine of "transferred malice", a misleading label but one which is too firmly entrenched to be discarded. Nor would it possible now to question the rule itself, for although the same handful of authorities are called up repeatedly in the texts they are constantly cited without disapproval. Narayan v Police HC Chch 10 June 2009, CRI-2009-409-000058 Although the doctrine has been criticised as lacking any sound intellectual basis… it has a long pedigree and its application is well established. Undoubtedly it is part of New Zealand law. Paterson v R [2014] NZCA 235 The doctrine is well-established. Mr Marshall for the Crown provided valuable submissions describing the history of the doctrine and its acceptance internationally. He also referred to two New Zealand High Court decisions where the doctrine has been recognised. To apply Transferred Malice…. Must commit actus reus and mens rea for same offence Agnes Gore’s Case “when one prepares poison with a felonious intent to kill any reasonable creature, whatsoever reasonable creature is killed thereby, he that had the felonious intent shall be punished.” If she tried to kill an animal and she killed a person she would not be liable. Does not apply if actus for one and mens for another “But if one prepares rats-bane to kill rats or mice, and lay the same in certain hidden places to this purpose, and with no ill intent, and another person finding the same doth eat thereof, and die, this is no felony;” Example: Murder Crimes Act S167 Murder Defined…

If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he or she does not mean to hurt the person killed. R v Challis and Box [2008] NZCA 470 In this case we have a gang war between the mongrel mob and black power. A couple of people who would like to be associated with the mongrel mob decide to shoot the black power. Little girl dies. Intention was to kill somebody, somebody else died that is enough. R v Clayton [2008] NZCA 523 Women thinks her partner is having an affair with two other women who conveniently live in one house. She decides to kill them. She throws something in the window. The two people who have been alleged to have been having an affair with got out. But an elderly woman died. Murder could be proved in this case. Example: Assault 188 Wounding with intent (1) Everyone is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to anyone, wounds, maims, disfigures, or causes grievous bodily harm to any person. Does this mean transferred malice? Yes.

Paterson v R [2014] NZCA 235 [15] As the juxtaposition of the emphasised references to “any one” and “any person” makes clear, the intention to cause grievous bodily harm (the mens rea of the offence) does not need to relate to the person in fact harmed (the actus reus of the offence). In other words, the intention to cause grievous bodily harm to one person may provide the mental element of the offence of causing harm to another person....