Dipak Murder Problem [50]

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Coke’s amended, common law definition of murder is the ‘unlawful killing of a human being under the Queens peace, with malice aforethought’. In this case Sarev is clearly a reasonable person in being and there is no issue as to whether the killing was under the Queen’s Peace. The critical part of the actus reus that the prosecution must prove is whether the ‘killing’ was caused by Sarev and so the factual and legal causation must be considered. In this case it is clear that ‘but for’ the actions of Dipak in cutting the brake cables on his car Sarev would not have been critically injured. The ‘but for’ test can be seen in operation in the case of Pagett (1983) where a defendant who used his pregnant girlfriend as a ‘human shield’ whilst firing at the police was found guilty of murder when the police returned fire killing the woman. ‘But for’ the defendant’s actions she would not have died. The opposite situation was seen in White (1910) where a defendant put cyanide in his mother’s drink but she dies of a heart attack before she had a chance to drink it. The defendant here was not the factual cause of her death though he was guilty of attempted murder. This can be applied to Dipak’s situation and it is likely that because Sarev is critically injured in any case in the crash, Dipak would be the factual cause of Sarev’s death. Legal causation only requires that the defendant be more than a ‘minimal’ cause of the consequence. This is known as the ‘de minimis principle’. In Kimsey (1996) the Court of Appeal stated that it is acceptable to tell the jury there must be ‘more than a slight or trifling link’. In this case it was also stated that there may be more than one person whose act contributed to the death. In Kimsey both drivers involved in a collision were driving at high speed but only one could be found guilty as the other died in the collision. In

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