Discuss Adamâ€™s criminal liability, for murder and partial
defences under the Homicide Ordinance which he may raise.
According to the Common Law, murder is an offence that established where there is an unlawful killing of a human being with malice aforethought.
However, this definition only appropriates under the Queenâ€™s peace to prevent the killing during wartime being murder. The commission of murder can carry a penalty of twenty-five years or life imprisonment.
To commence with, the first question of this case is whether Adamâ€™s act is voluntary and necessary or not. Since a killing in self-defence may not be regarded as a murder. In Hussey (1924) 18 Cr App ...view middle of the document...
Although Adamâ€™s voluntary act lead to Leoâ€™s death, he will only be liable for murder with relevant mens rea â€ malice aforethoughtâ€ at the time of acting. There is nothing to suggest that Adam really intended to kill Leo. Nevertheless, he had a strong intention to cause grievous bodily harm because he smashed Leo with glass immediately. It is enough malice if the intention is not to kill but to cause grievous bodily harm subject to the House of Lord in Moloney, 1985. Therefore, Adam is guilty of murder in terms of his actus reus and mens rea.
Actually there are some possible defences for Adam. He can use intoxication, provocation, diminished responsibility or others as defences though some of them may not be strong enough to raise.
For intoxication is quite difficult to rise as defences as Adamâ€™s self â€“ induced intoxication (drunk) was no defence. However, murder is a kind of specific intent crimes. In DPP v Majewski and R v Majewaki, the court held that intoxication cannot be a defence of basic intent crime while specific intent crimes can because these crimes require specific intent to kill or harm the victim that states at â€œCrimes Ordinance Sect.17- Compulsion in taking unlawful oaths â€œ
Moreover, the fact Adam got drunk was reckless. Recklessness would seem to satisfy for this case to reduce as manslaughter through objective test. As a result, Adam is likely to convict with manslaughter if intoxication and recklessness are raised as defences.
If Adam cannot be helped by these two defences, he still can raise provocation as a defence. Under the Section 4 of Homicide Ordinance, the jury should also consider about the provocation incurred by charger. In this case, Adam was called as â€œugly shortyâ€ that insulted him very much because he only 5 feet tall. His situation is similar to the accused in R v Camplin (1978) 2 All E.R.168 whose charge of murder was reduced to manslaughter
In subjective test, he suffered a sudden and temporary loss control that showed from his negligent action. In objective test, he is a schizophrenic with 5 feet tall only and drunk when Leo poured ridicule on his height. It is...