Sunday, 11 December 2016


In every case where it is alleged that death has resulted from the act of a person, a causal link between that death and the act must be established and proved, in a criminal proceedings, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act (or omission) of the person alleged to have caused it

What is causation?
Causation connects conduct with a resulting effect. It refers to the enquiry as to whether the defendants conduct (omission) caused the harm or damage. Causation in criminal liability is divided into factual causation and legal causation. Factual causation involves a two-stage inquiry. The first stage involves establishing ‘factual’ causation. Perhaps assessing if the defendant acted in the plaintiff’s loss. It results in the use of the but for test and where there are no complicating factors, factual causation is sufficient to establish causation. However in some circumstances legal causation is used. The second stage involves establishing ‘legal’ causation. This is often a question of public policy regarding the sort of situation in which, despite the outcome of the factual enquiry, the defendant might nevertheless be released from liability, or imposes liability. Here the result must be caused by a culpable act, there is no requirement that the act of the defendant was the only cause, there must be no novus actus interveniens and the defendant must take his victim as he finds him.
What is homicide?
Homicide means the killing of a person in a manner not justified by law. 
Under common law the English courts have developed varying forms for deciding causation: one of which is the but for test or sine qua non test.
The but for test is a test of necessity. This test is sometimes seen as a factual cause as it is like asking a question but for D's voluntary acts, would the result have occurred when it did and as it did? If it is proved that it would have happened anyway irrespective of the defendants act then and only then will there not be liability on the defendant’s part. If not liability falls on the defendant. This is also referred to as the substantive or operational cause of death. One weakness in the but-for test arises in situations where each of several acts alone is sufficient to cause the harm. For example, if both A and B fire what would alone be fatal shots at C at approximately the same time, and C dies, it becomes impossible to say that but-for A's shot, or but-for B's shot alone, C would have died. Taking the but-for test literally in such a case would seem to make neither A nor B responsible for C's death. The courts have generally accepted the but for test notwithstanding these weaknesses, qualifying it by saying that causation is to be understood “as the man in the street” would:, or by supplementing it with “common sense”[1]. This dilemma was handled in the United States in State v. Tally[2], where the court ruled that: “The assistance given ... need not contribute to criminal result in the sense that but for it the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired without it.” Using this logic, A and B are liable in that no matter who was responsible for the fatal shot, the other "facilitated" the criminal act even though his shot was not necessary to deliver the fatal blow.
So if John who is to die in a week’s time as a result of the discovery of a terminal illness by his doctor is killed through suffocation by his son James to speed up his inheritance of his father John’s will, he would be liable for John’s death because but for his act John would have lived for a week.
Notwithstanding the fact that causation may be established in the above situations, the law often intervenes and says that it will nevertheless not hold the defendant liable because in the circumstances the defendant is not to be understood, in a legal sense, as having caused the loss. In the United States, this is known as the doctrine of proximate cause. The most important principle is that of novus actus interveniens, which means a ‘new intervening act’ which may ‘cut the chain of causation’. The but-for test is factual causation and often gives us the right answer to causal problems, but sometimes not. Two difficulties are immediately obvious. The first is that under the but-for test, almost anything is a cause. Imagine the following. A critically injures B. As B is wheeled to an ambulance, she is struck by lightning. She would not have been struck if she had not been injured in the first place. Clearly then, A caused B's whole injury on the ‘but for’ test. However, at law, the intervention of a supervening event renders the defendant not liable for the injury caused by the lightning.
The effect of the principle may be stated simply: if the new event, whether through human agency or natural causes, does not break the chain, the original actor is liable for all the consequences flowing naturally from the initial circumstances. But if the new act breaks the chain, the liability of the initial actor stops at that point, and the new actor, if human, will be liable for all that flows from his or her contribution. Note, however, that this does not apply if the Eggshell skull(take your victim as you find them) rule is used. Also legal Causation is usually expressed as a question of 'foreseeability'. An actor is liable for the foreseeable, but not the unforeseeable, consequences of his or her act. For example, it is foreseeable that if I shoot someone on a beach and they are immobilized, they may drown in a rising tide rather than from the trauma of the gunshot wound or from loss of blood. However it is not (generally speaking) foreseeable that they will be struck by lightning and killed by that event.
This type of causal foreseeability is to be distinguished from foreseeability of extent or kind of injury, which is a question of remoteness of damage, not causation. For example, if I conduct welding work on a dock that lights an oil slick that destroys a ship a long way down the river, it would be hard to construe my negligence as anything other than causal of the ship's damage. There is no novus actus interveniens. However, I may not be held liable if that damage is not of a type foreseeable as arising from my negligence[3]. That is a question of public policy, and not one of causation.
An example of how foreseeability does not apply to the extent of an injury is the eggshell skull rule. If A punched B in the jaw, it is foreseeable that B will suffer a bodily injury that he will need to go to the hospital for. However, if his jaw is very weak, and his jaw comes completely off from my punch, then the doctor bills, which would have been about $5,000 for wiring his jaw shut, had now become $100,000 for a full-blown jaw re-attachment. A would still be liable for the entire $100,000, even though $95,000 of those damages were not reasonably foreseeable.
A difficult issue that has arisen recently is the case where the defendant neither factually causes the harm, nor increases the risk of its occurrence. In Chester v Afshar [4] a doctor negligently failed to warn a patient of risks inherent in an operation, specifically cauda equina syndrome. The patient had the operation and a risk materialized causing injury. It was found that even if the patient had been warned, the patient would still have undergone the operation, simply at a different time. The risk of the injury would be the same at both times. Accordingly, the doctor neither caused the injury (because but for the failure to warn, the patient would still have gone ahead with the operation), nor increased the risk of its occurrence (because the risk was the same either way). Yet the House of Lords, embracing a more normative approach to causation, still held the doctor liable. Lawyers and philosophers continue to debate whether and how this changes the state of the law.
The second form of inferring causation under the common law is the ‘a year and a day rule’.
The ‘year and a day rule’ which has been abolished in England by the Law Reform (Year and a Day Rule) [5] which states that ‘The rule known as the ‘year and a day rule’ (that is, the rule that, for the purposes of offences involving death and of suicide, an act or omission is conclusively presumed not to have caused a person’s death if more than a year and a day elapsed before he died) is abolished for all purposes. The Year and a Day Rule is still very operative in Nigeria, According to Section 314 of the Criminal Code, this period is reckoned inclusive of the day on which the last unlawful act contribution to cause of death was done. If the death is caused by an omission, the period includes the day on which the omission ceased. Where death is the result partly of an unlawful act and partly of an omission, to perform a duty the period is reckoned so as to include the day on which the last unlawful act was done or the day on which the omission ceased, whichever is the late[6].
Even in our criminal code the cause of death must be proved with certainty. Evidence which only tends to show a possible or prohibited cause of death is not enough for the offence of murder or manslaughter. It must be established beyond reasonable doubt that the unlawful act or omission of the accused caused the death of the victim. This is fully supported in our criminal code in
Section 308[7] which points out the principle of causation in homicide.
Here a person is held responsible for what he has done no matter how minute; once death can be traced to his action he will be liable. If the question is who caused the death of let’s say John and the death can be attributed to James whether directly or indirectly, James would be deemed to have killed John.
By indirectly what is meant is that for instance if  A pulls out the brake cables from B’s car and does not inform B and B drives the car has an accident and dies by reason of Section 308 A is guilty of having caused his death under the section. This is the principle of causation .the principle does not consider intention. Intention only comes in when some other things want to be proved.
Section 310 goes on to provide that “A person who, by threat or intimidation or by deceit, causes another person to do an act or make an omission which results in the death of that other person, is deemed to have killed him”. Here, the defendant may not have directly caused the death but did something which caused death. Here the act of the deceased should be a reasonable response to the threat, intimidation or deceit. It is not open to the defendant to say that the consequence of the act of the deceased was not a natural consequence of his threat. The test is that, the deceased did not act so daft, but acted reasonably. Thus, in corbeth(1996)[8]  D had punched and head butted V who had run off, tripped and fallen into the path of a passing car. The court of Appeal rejected his argument that V had over reacted and upheld his manslaughter conviction. This was also accepted in Marjoram (2000)[9], V was seriously injured either as a result of jumping or falling off the window in her room when D who had been shouting abuse and kicking V’s hostel room forced open the door. D’s conviction for inflicting serious bodily harm was upheld by the court of Appeal.
 Furthermore section 311 provides that “a person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person”. Here the eggshell principle may apply. It is not a defence that if the deceased was normal nothing would have happened. If death results from the unlawful conduct of a person, he will be liable. Thus in Martin (1832)[10] park J said: “it is said that {V} was in a bad state of health, but that is perfectly immaterial, as if {D} was so unfortunate as to accelerate her death, he must answer for it.
Also contributing to this principle of causation in homicide is section 312.this section provides that “When injury or death might be prevented by proper precaution. When a person causes bodily injury to another from which death results, it is immaterial that the injury might have been avoided by proper precaution on the part of the person injured or that his death from that injury might have been prevented by proper care or treatment”. Here D cannot say that the victim died because he refused to go for proper care and death was a result of that as was the case in R v Blaue where the the defendant stabbed the deceased four times for her refusal to have sex with him, she was taken to the hospital but refused blood transfusion based on her religious belief. She died as a result of loss of blood. Similar facts too was also the case in R v holland
section 313. also on the same principle provides that “when a person does grievous harm to another, and such other person has recourse to surgical or medical treatment, and death results either from the injury or the treatment, he is deemed to have killed that other person, although the immediate cause of death was the surgical or medical treatment, provided that the treatment was reasonably proper under the circumstances, and was applied in good faith. Here, If  D causes grievous  injury to V who goes for an operation and subsequently dies either from the injury or medical treatment, so long as the treatment was proper and administered in good faith  the person who caused injury will be liable.
Lastly section 314 which provides that “a person is not deemed to have killed another, if the death of that other person does not take place within a year and a day of the cause of death. Such period is reckoned inclusive of the day on which the last unlawful act contributing to the cause of death was done. When the cause of death is an omission to observe or perform a duty, the period is reckoned inclusive of the day on which the omission ceased. When the cause of death is in part an unlawful act, and in part an omission to observe or perform a duty, the period is reckoned inclusive of the day on which the last unlawful act was done or the day on which the omission ceased, whichever is the later.

The doctrine of causation in homicide under both the common law and the criminal code are basically similar only that, that of the criminal code has been broadened.

[1] March v Stramare (1991) 171 CLR 506
[2]  15 So 722, 738 (Ala. 1894)
[3] : The Wagon Mound (No 1) [1961] AC 388 (Privy Council)
[4] [2004] 4 All ER 587 (HL
[5] Act 1996
[6] Glanville Williams Textbook on Criminal Law(2nd ed. Steven and Sons,1993)pg78
[7] Criminal code cap 38
[8] Crim LR 594
[9] Crim LR 372
[10] 5c&p 128

1  Smith & Hogan, criminal law cases and materials.sixth edition 1996.
     Justice E.O fakayode, The Nigerian criminal code companion 1977.
3Criminal code cap “C38”
4Okonkwo and Naish , criminal law in Nigeria, 2nd edition 1980
5Akinola Aguda and Isabella Okagbae , principles of criminal liability in Nigeria. 2ndedition
6Smith & Hogan, criminal law cases and materials 9th edition 2006
  Micheal Jefferson, criminal law.5th edition 2001
8Hon. Justice  P.A Onamade, cases and materials on criminal law. 2008
9Vicky Dickson and Jo Theobald, the college of law. Graduate Diploma in Law

 Class notes

No comments:

Post a comment