murder and involuntary manslaughter - Law Reform Commission

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2.70 In The People (DPP) v Kirwan 95 the court considered the meaningof “serious harm” in section 1 of the 1997 Act. In reviewing the origins ofthe Act the court noted that it involved the implementation in large part ofthe Commission’s Report on Non-Fatal Offences against the Person 96 inwhich the Commission endeavoured to simplify and clarify the law onassault by replacing sections 18, 20 and 47 of the Offences against thePerson Act 1861 with clearer and more straightforward definitions. Thecourt observed that section 1 of the 1997 Act defined “harm” as “harm tobody or mind and includes pain and unconsciousness” 97 and defined seriousinjury as set out in the previous paragraph.2.71 The court remarked that the 1997 Act:“does not contain either the words “permanent”2 or “protracted”,from which one may infer that the Oireachtas was quiteconsciously abstracting or removing requirements of permanenceor even long term consequences from the definition of ‘seriousharm’, requirements which, had they been enacted, might havebeen seen as requiring that proof of such matters was necessary toconstitute the offence of ‘assault causing serious harm’.”2.72 In dismissing the defendant’s appeal the Court of Criminal Appealheld that there was sufficient evidence from which the jury could haveformed the view that the injured person suffered a substantial impairment tothe function of his left eye amounting to serious harm as defined by section 1of the Non-Fatal Offences Against the Person Act, 1997.2.73 The first benefit of defining “serious injury” is that theconstructive nature of the liability would be minimised. Certain injuriessuch as a broken arm, which although serious, do not normally prove fatal,would be excluded. Secondly, if the term were defined, juries would begiven some explanation as to the term’s proper meaning and scope and therisk of inconsistent jury verdicts in similar fact cases would therefore belessened. 9895969798[2005] IECCA 136.(LRC 45-1994).See Law Reform Commission Report on Non-Fatal Offences against the Person(LRC 45-1994) paragraph 9.65 where the Commission stated: “We are not disposed todefine “harm” as the law operates satisfactorily without a definition at the moment.However, the word “bodily” is superfluous and its use is not conducive to a definitionwhich includes mental “hurt”. If it were felt necessary, the formula in the EnglishDraft Code could be used. There, “personal harm” is defined as “harm to body ormind including pain and unconsciousness.” The use of the word “actual” is alsosuperfluous.”Law Reform Commission Consultation Paper on Homicide: The Mental Element inMurder (LRC CP 17-2001) at paragraph 5.19.48
2.74 On the other hand, defining the term “serious injury” might provedisadvantageous 99 if it resulted in long, complicated definitions, which jurorsmight find confusing. Glanville Williams proposed a definition of “seriousinjury” which was criticised due to itscomplexity. He stated that an injuryshould be considered serious if it:• causes serious distress, and also• involves loss of a bodily member or organ, or permanent bodilyinjury or permanent functional impairment, or serious impairmentof mental health, or prolonged unconsciousness; and an effect ispermanent whether or not it is remediable by surgery. 1002.75 A second disadvantage associated with defining serious injury isthat the seriousness of an injury frequently depends on the particularcircumstances, including the availability or lack thereof of swift medicalassistance. Determining whether an injury is serious is a matter of judgmentand the jury should be able to bring their experience and common sense tobear in deciding whether an injury is a serious one or a minor one.Moreover, finding a suitable definition of serious injury is problematic. 101 Itis not easy to draft a definition to cover every eventuality.2.76 The definition of serious injury provisionally favoured by theCommission in 2001 was that of the Codes of Western Australia andQueensland, which define grievous bodily injury as “any bodily injury ofsuch a nature as to endanger or be likely to endanger life, or to cause, or belikely to cause permanent injury to health.” 1022.77 In the following chapter the Commission will revisit itsprovisional recommendations as well as various other options for reformingthe mental element in murder identified in the Consultation Paper. TheCommission will also discuss submissions received from interested partiesbefore setting out its final recommendations.99100101102Law Reform Commission Consultation Paper on Homicide: The Mental Element inMurder (LRC CP 17-2001) at paragraph 5.20.Glanville Williams “Force, Injury and Serious Injury” (1990) Vol 140 New LJ 1227,1229.See The Criminal Law Revision Committee Offences against the Person (Cmnd 784414 th Report 1980) at paragraph 154 where the Committee explained their reasons forleaving serious injury undefined.See section (1) of the Western Australian Criminal Code.49
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ReportHomicide: murderand involunta
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Law Reform CommissionTHE LAW REFORM
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Law Reform CommissionLaw Reform Res
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Law Reform CommissionContact Detail
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viii
Page 12 and 13:
CHAPTER 5F Issues relating to gross
Page 15 and 16: TABLE OF CASESAndrews v DPP [1937]
Page 17 and 18: INTRODUCTION1. This Report forms pa
Page 19 and 20: 8. The Commission still holds most
Page 21 and 22: 1CHAPTER 1THE MURDER/MANSLAUGHTERDI
Page 23 and 24: 1.07 Fourth, if there were a single
Page 25 and 26: (b)Arguments favouring abolition of
Page 27 and 28: 1.20 Professor Ivana Bacik also sup
Page 29 and 30: Bingham of Cornhill observed in a l
Page 31 and 32: “there can be nothing offensive i
Page 33 and 34: then Minister for Justice, Nora Owe
Page 35 and 36: degrees of seriousness in manslaugh
Page 37 and 38: against the decision, nor has the A
Page 39 and 40: people whom they represented than w
Page 41 and 42: 2CHAPTER 2MURDER: THE CURRENT LAW A
Page 43 and 44: unsatisfactory. Murder is the most
Page 45 and 46: “To intend to murder, or to cause
Page 47 and 48: ecklessness involves foresight of t
Page 49 and 50: Court referred to the 41 st edition
Page 51 and 52: However, as the Court of Appeal sta
Page 53 and 54: 2.40 In Hyam v DPP 45 the accused p
Page 55 and 56: 2.48 Foresight must be of such a le
Page 57 and 58: DIssues relating to murder(1) Are t
Page 59 and 60: “the presence or absence of inten
Page 61 and 62: 2.63 A number of reform bodies have
Page 63: • A defendant who intentionally i
Page 68 and 69: unjustifiable risk that the materia
Page 70 and 71: • In South Africa, under the conc
Page 72 and 73: 3.15 The Commission provisionally f
Page 74 and 75: (e)• Manslaughter or Negligent Ki
Page 76 and 77: 3.30 Some consultees who believed t
Page 78 and 79: where (a) the offender killed with
Page 80 and 81: 3.44 The Commission still believes
Page 82 and 83: injury to a person which is “suff
Page 84 and 85: 3.58 An academic commentator agreed
Page 86 and 87: 3.66 In paragraph 5.53 the Commissi
Page 88 and 89: describe the risk. It was argued th
Page 91 and 92: 4CHAPTER 4INVOLUNTARY MANSLAUGHTER:
Page 93 and 94: 4.05 The Commission discussed the p
Page 95 and 96: CUnlawful and dangerous act manslau
Page 97 and 98: 4.20 Those who focus on the moral i
Page 99 and 100: sixth 31 in order of gravity. Respo
Page 101 and 102: 4.31 According to Hart, the adverb
Page 103 and 104: 4.39 In The People (DPP) v Barden 4
Page 105 and 106: isk, he ought to have exercised the
Page 107 and 108: 4.53 The offence is committed where
Page 109 and 110: 4.59 The Commission sought submissi
Page 111 and 112: 5CHAPTER 5INVOLUNTARY MANSLAUGHTER:
Page 113 and 114: lesser crime and receive a softer p
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5.12 In cases where the accused pun
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in circumstances where it is accept
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of “common knowledge” and life-
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5.40 The Commission does, however,
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Kennedy, 35 R v Dias 36 and R v Rog
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“negligent homicide” may be a f
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negligence so as to produce a fluct
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stole a vehicle and a high speed po
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(b)(i)The relevance of death in car
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6CHAPTER 6SUMMARY OF RECOMMENDATION
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• that the negligence was of a ve
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Unlawful and dangerous act manslaug
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