By Abdurraheem A Jones, LLB
Following the brutal slaying of a 39 year old Canadian citizen of Grenadian roots while in police custody at St. David’s Police Station some two weeks ago, it is extremely unfortunate that a significant number of the public including some lawyers is having difficulty explaining or understanding what actually constitutes the offences of murder and manslaughter as defined in sections 237 and 238 respectively of Volume 1, Chapter 1 of Grenada’s Criminal Code – particularly since these offences carry the maximum penalty of death in the case of murder (s.230), five years and fifteen years respectively (s231) in the cases of negligent manslaughter and other forms of manslaughter (e.g. caused by recklessness, gross negligence, an unlawful and dangerous act or where, for example, the presence of provocation reduces intentional homicide to manslaughter). In this article we will analyze the definitions of both offences along with examining whether or not an intention to kill is both a relevant and necessary ingredient for the offence of murder to be committed. Section 239, which deals with “cases in which intentional homicide is reduced to manslaughter”, will be somewhat ignored for the purpose of this article since the five accused have not been charged with murder and therefore the issue of reducing intentional homicide to manslaughter does not arise as such.
Section 237 states that ‘Whosoever causes the death of another person by unlawful harm is guilty of manslaughter. If the harm was negligently caused, he is guilty only of manslaughter by negligence’. The latter part of the definition is very instructive in assisting us to comprehend what actually constitutes the mens rea or mental element of the offence: notice that the statutory focus is clearly on ‘the harm’ (and not on the degree of gravity of the unlawful harm which is both relevant and necessary for determining the actus rea or external element or the constant of the offence). Therefore if the harm was negligently caused the defendant is guilty of manslaughter by negligence which carries a maximum penalty of 5 years (s.231); if the harm was recklessly caused or caused by *gross negligence or by an unlawful and dangerous act the defendant is guilty of manslaughter which carries a maximum penalty of 15 years (s.231). We see that the degree of gravity of the unlawful harm caused is forever constant, i.e. death; however the mens rea or guilty mind of the defendant is different and thus the different penalties or treatment by the law. But what if the harm was intentionally caused? This indeed is the focus of section 238.
Section 238 states that ‘Whosoever intentionally causes the death of another person by unlawful harm is guilty of murder…’ Notice that the word ‘intentionally’ is inserted in the definition of the offence of manslaughter to create the offence of murder. As in manslaughter, in determining the presence of the mens rea ingredient/s, the focus clearly remains on ‘the harm’ and not on the degree of gravity of the unlawful harm caused. In other words if I intended to unlawfully harm you by bending your finger backwards and broke your finger in the process I am clearly liable for the degree of gravity of the harm caused, i.e. the broken finger, which I did not intend but which certainly was a clearly foreseeable consequence of my unlawful conduct. Similarly if I intended to unlawfully harm you by water-boarding and I drowned you in the process I’m also equally liable for the gravity of the harm caused i.e. the death. I am therefore submitting that an intention to unlawfully harm a person by water-boarding or an intention to inflict “dangerous harm” or “grievous harm” similar to that suffered by Barth indeed constitutes the necessary mens rea for murder. That the defendant did not intend to kill the victim, though relevant, is not a necessary consideration: understandably, certain foresight or knowledge of the possibility of death coupled with unlawful harm will also satisfy the mens rea for murder. From another perspective if D fired a shot at C with the intention to kill him but instead ‘accidentally’ shot and killed V, a police officer on duty who was attempting to restrain or apprehend D: the necessary mens rea was present and D is guilty of murder of V even if she had no intention to kill V; for the harm was both intentional and unlawful resulting in V’s death (s238).
Respectfully, the DPP erred when he stated to the nation on GBN news, Thursday January 5, 2012 edition, that an intention to kill is the required mens rea for murder – or, effectively, that he was influenced by the absence of an intention to kill in arriving at the decision to not charge the accused with the greater or more serious offence. This is rather unfortunate. With the wave of police brutality handed down or condoned by elements of the RGPF in the recent past – including the brutal slaying of two mentally ill men as well as a drunk man in the dark in the vicinity of Her Majesty’s Prisons, the break up of peaceful demonstration involving oppressed workers on private property and now the brutal slaying of a man while in police custody – the citizens of Grenada are beginning to lose whatever residue of trust they have in the police and, with the decision of the DPP to not charge the accused with murder, the legal system too. In all fairness…just like the offence of rape always includes the *less serious offence of battery and usually that of assault; based on their statutory focus and definitions, inversely, the offence of manslaughter was skilfully drafted to encompass the *more serious offence of murder on the one hand while circumventing the death penalty on the other. Yet it is unacceptable where one committed the offence of rape to charge him with assault and/or battery simply because he is a member of a particular class. It is equally unacceptable where one committed the offence of murder to charge her with manslaughter simply because she is a member of a particular class.
CONCLUSION:
In Grenada’s Criminal Code, to create the offence of murder the word ‘intentionally’ is added to the definition of manslaughter which is ‘causing the death of another person by unlawful harm’. One observes that the definition of manslaughter is broad enough to skilfully encompass that of the *greater offence of murder while circumventing the death penalty. To determine whether the mens rea or mental element of the offence of murder of manslaughter is satisfied the statutory focus is clearly on the harm (not on the degree of gravity of the unlawful harm caused although the gravity is both relevant and necessary for determining presence of the actus rea, external element or guilty act, i.e. death, which is the constant of the offence whether the charge is manslaughter by negligence, manslaughter or murder). Therefore if, intending to unlawfully harm me, you bend my finger backwards and broke it in the process you are also liable for my broken finger. Similarly, if you ducked me constantly with the intention of inflicting on me some degree of unlawful harm and drowned me in the process you are clearly liable for my death. An intention to kill, although relevant, is not necessary for satisfying the mens rea of the offence of murder. In any event water-boarding or inflicting “dangerous harm” or “grievous harm” on a person similar to that suffered by Barth while in police custody indeed constitutes the mens rea for murder – since a certain degree of foresight or knowledge of that death will result is forever present in such situations. Negligence, gross negligence, recklessness or an unlawful and dangerous act/conduct will satisfy the mens rea for manslaughter; while the mens rea for murder is satisfied by intent or, in its absence, certain foresight or knowledge that the unlawful conduct of the defendant/s would result in death. Focusing excessively on actus rea issues or the degree of gravity of the unlawful harm, perhaps in an effort to circumvent the death penalty on this particular occasion, the DPP erred in stating to the nation that in the absence of an intention to kill he could not charge a defendant with murder. The citizens of Grenada are beginning to lose whatever residue of trust they have in the police as well as the legal system of Grenada.
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