Criminal Question

mountainyman

Niall and Mary are uncle and niece in what might typically be described as a dysfunctional family.

6 Years ago when Mary was thirteen and Niall was twenty eight they commenced a consensual sexual relationship. This relationship is ongoing and might be reasonably described as codependant or dysfunctional.

Both Mary and Niall are habitual users of cocaine.

Mary and Niall are drinking and taking cocaine in order to celebrate the birth of a baby to Mary's elder sister. Niall makes the remark 'Next Generation, Fresh meat' Mary stabs Niall through the liver.

Niall dies and it may be assumed that there is no break in causation between the stabbing and his death.

Mary claims that 'there was no one home' when she killed Niall. She has no memory of the events in question.

Advise Mary

Eru

Plead insanity due to years of constant abuse and if all else fails, throw in that she was high and cant remember. get down to manslaughter based on that.

besty

Possible provocation as a defence. I can't remember the case which said that provocation could be verbal.

Autonomy may also be raised as she has no recollection of the events (Gabey is possibly the case here, my memory is atrocious but it was the one with the guy who lost it and cracked the stone over the girls head.)

dermot_sheehan

mountainyman wrote:

Niall and Mary are uncle and niece in what might typically be described as a dysfunctional family.

6 Years ago when Mary was thirteen and Niall was twenty eight they commenced a consensual sexual relationship. This relationship is ongoing and might be reasonably described as codependant or dysfunctional.

Ok Punishment of Incest Act 1908 only applies to Niall's mother, grand-mother, sister, daughter or granddaughter. Since Mary isn't one of these, they can't be prosecuted for incest.

Statutory Rape, assuming this took place before the new law was passed, they probably can't be prosecuted under the 1935 act but must wait for judgement of supreme court in A case for certain.

Both Mary and Niall are habitual users of cocaine.

Mary and Niall are drinking and taking cocaine in order to celebrate the birth of a baby to Mary's elder sister. Niall makes the remark 'Next Generation, Fresh meat' Mary stabs Niall through the liver.

Niall dies and it may be assumed that there is no break in causation between the stabbing and his death.

Mary claims that 'there was no one home' when she killed Niall. She has no memory of the events in question.

Advise Mary

Ok, basics Mary could be prosecuted for posession of a scheduled drug under the misuse of drugs act, provided there's some left.

Mary could plead intoxication. voluntary intoxication is only a defence to crimes of specific intent, and not basic intent (r v. majewski). Murder is specific intent, manslaughter is basic. On these grounds she could plead that she could not have formed the specific intent to kill due to her intoxicated state, but she was criminally reckless, and therefore should be convicted of manslaughter.

Provocation is an objective test (dont have case to hand, it what would cause a reasonable person to lose control). I think a reductive defence based on provocation would fail.

She can't plead infanticide as it wasn't her baby that was recently born.

She could try plead insanity. The MacNaughten rules, as added to by Doyle v. Wicklow Co. Co., were codified in s. 5 of the Criminal Law Insanity Act. These presume that she is sane, she has to prove on the balance of probabilities that she suffered a disease of the mind so that she did not understand the nature or quality of the act, or she did not know that doing it was wrong, or that she was suffering an irresitable impulse.

She could also plead diminished responsibility under s. 6 of the criminal law insanity act 2006. This is when she suffers a mental disorder at the time of the offence, but it's insufficient to return a verdict of insanity, she would be convicted of manslaughter.

In conclusion, the burden on her is to establish a mental disorder for the purposes of insanity or diminished responsibility. A verdict of insanity results in indefinite detention at the pleasure of the government so waht she should be aiming for is a manslaughter conviction. She probably wouldn't succeed at provocation, but she would probably succeed in stopping the state from proving beyond reasonable doubt that she formed specific intent, due to her own voluntary intoxication, thus resulting in a manslaughter verdict.

focusing

In a word:

Automatism

mountainyman

I was thinking about the intersection between the following for the purposes of a defense to murder.

Provocation
Automatism
Voluntary Intoxication

Was her automatism a result of the provocation or of the voluntary intoxication.

Do you think you could get her manslaughter?

MM

dermot_sheehan

She can't get automatism since automatism involves some external stimuli activating a reflex type automatic action. The classic example is bees interfering with someones driving. Similarly someones suffering from diabetes could get automatism for actions from hypoglycemia (too little sugar, too much insulin, since the insulin injection is prescribed its not considered a voluntary intoxicant). Perversly they could only plead insanity for hyperglycemia, (too much sugar), since there was no external stimuli. I don't think putting the knife through would be considered a reflex action. Provocation involves an objective test. I don't think a jury could find objectively that what the deceased did would cause a reasonable person to lose control.

I think easiest option for the defence would be to go for manslaughter based on voluntary intoxication. You go in front of the jury and simply say she's a woman of X mass, she consumed this amount of alcohol and this amount of coke. She would have been x times the legal limit of blood alcohol to drive. Can you really find beyond a reasonable doubt that she formed the specific intent to kill? Could you form the specific intent to do anything if you were that high/drunk?

mountainyman

What about the Australian case where the wife discovered that the husband had raped the daughter. Didn't that deal with provocation and automatism?

maybe not.

MM

dermot_sheehan

Been a couple of years since i did criminal so i can't remember the exact case. The term "Next Generation, New Meat", has several possible connotations, namely the possiblity of the deceased engaging in consensual/non-consensual sexual relations at an inderminate date in the future with the child.

It's basically an issue of fact up to the jury whether that constitutes provocation on an objective standard. I suspect most people would consider it not to constitute provocation. It refers to future events which the defendent could prevent from happening by other means rather then immediatly commiting homicide. It doesn't refer to past events that might evoke passionate emotions of jealously.