It is suggested that amendments Nos. 1, 2, 3, 4, 5 and 6 be taken together.
Health (Homes for Incapacitated Persons) Bill, 1963. - Criminal Justice Bill, 1963 — Report and Final Stages.
Amendments Nos. 1, 2 and 3 not moved.
I move amendment No. 4:
In page 3, to delete lines 25 to 33 and substitute:
4. (1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.
(2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted.
Like the amendments put down in Deputy McGilligan's name, this amendment proposes to introduce a statutory definition of murder — a statutory definition of that kind of malice which distinguishes murder from other forms of unlawful killing. This distinguishing criterion of murder is called "malice aforethought". That phrase is used in a highly technical sense. One leading writer, Stephen, said that the phrase "is never used except to mislead or to explain away" and certainly its exact meaning is not beyond the range of controversy.
"Malice aforethought" is a comprehensive name for a number of different mental attitudes which had been variously defined at different stages in the development of the law as rendering an unlawful killing murder. The statement of these mental attitudes which is most commonly cited as authoritative is that given in 1877 by Stephen. This definition referred to the following states of mind: (a) an intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not; (b) knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or even by a wish that it may not be caused.
The definition also laid down the rule that it was murder to cause death either in furtherance of a felony or in resisting or escaping arrest. These are the two cases of "constructive malice" proposed to be abolished by Section 4 of the Bill. The definition set out in my amendment proposes not only to omit these two cases of constructive malice but also paragraph (b) of Stephen's statement. It amends paragraph (a) by substituting "serious injury" for "grievous bodily harm".
The dropping of paragraph (b) is the main point of difference between the definition in my amendment and that of Deputy McGilligan. I need not deal with it because Deputy McGilligan's amendment has not been moved. My idea is that a killing should amount to murder only if the accused person intended to kill or to injure seriously some person. I think that the law should make this clear distinction because it has a sound moral basis.
The result of this amendment of the law will be that some killings will be transferred from the category of murder to that of manslaughter. The maximum punishment for manslaughter—penal servitude for life— ensures that those found guilty are adequately punished. For example, at present a woman may be guilty of murder by virtue of paragraph (b) of Stephen's definition if she exposes a helpless infant in circumstances where there is not a reasonable expectation that it will be found by someone else. Under the definition I now propose, such a woman may still be found guilty of murder but only if the jury are satisfied that she intended to kill the child or cause it serious injury, that is, serious bodily harm.
Another difference between the common law definition and the statutory definition I now propose is the substitution of an intention to cause "serious injury" for an intention to cause "grievous bodily harm". Deputy McGilligan's proposal is on the same lines, though he uses "really serious" for "serious". The reason for abandoning the expression "grievous bodily harm" is that it has been interpreted in the past, far too broadly in my opinion, as any serious interference with the victim's health or comfort as distinct from what I should regard as the natural meaning of the phrase, that is to say, serious injury.
An important advantage of defining malice aforethought in statutory form is that it will remove any possibility that an objective test will be applied in determining intention in murder trials. I do not think that there is any real likelihood that our courts would accept that our law in this respect is the same as that laid down for Britain by the House of Lords in Smith's case in 1960. In that case, it was held that once the jury were satisfied that the accused was doing something unlawfully and voluntary to someone, it mattered not what the accused contemplated as the probable result of his actions, or whether he ever contemplated at all, provided he was in law responsible and accountable for his actions. In effect, the test of malice was not what the accused contemplated but what the ordinary reasonable man would contemplate as the probable result of the criminal act.
This decision has been severely criticised throughout the world, throughout the common law countries anyway, and there was subsequently a case in Australia in which it was very strongly disapproved of. Most people will agree, I think, that nobody should be found guilty of murder unless he himself intended to kill or cause serious injury. If he satisfied the jury on this point, it should not matter whether the ordinary responsible man would have intended the result. Of course, in practice there will usually not be any question as to the difference between the subjective test and the objective test. There is a presumption, as much of commonsense as of law, that a person must be presumed to have intended the natural and probable consequences of his acts.
This presumption is being enacted in statutory form as subsection (2) of the revised section 4 proposed by my amendment. In many cases the inference to be drawn from the accused's acts will be so strong that if he says he really intended no serious harm the jury will simply not believe the evidence. But if they believe that the accused, in spite of all the appearances, had, in fact, no intention of killing or of doing serious injury, then the jury must find him not guilty. That is all I have to say on this amendment, which I commend to the House.
I think the Minister's amendment is really based on similar amendments which were tabled by Deputy McGilligan on Committee Stage and which are being repeated now on Report Stage. It would only be fencing to try to distinguish between the Minister's amendment and Deputy McGilligan's amendments. For practical purposes, the results would be the same. It is true that subsection (2) of the Minister's amendment puts the question of the inference to be drawn by a jury in a positive rather than in a negative manner as suggested in one of the amendments which Deputy McGilligan tabled.
As the Minister has pointed out, under this Bill the doctrine of constructive malice is being abolished. The doctrine that an accidental killing by a person committing a felony—at any rate, a felony in which violence was involved—under the doctrine of constructive malice was regarded as murder and punishable as such. The Minister's amendment gets away from that and puts into the legislation a definition and a guide as far as the question of malice is concerned.
There is only one technical point I should like to bring to the Minister's attention and I think it would be worth his while to look at it. His amendment sets out that where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury. Clearly, what is intended there is to cause serious bodily injury and I think it would be an improvement to have that inserted at this stage rather than to find it necessary to put it in later, possibly when the matter has been debated not only here but in the courts.
When I speak now, do I finish the debate?
Yes, if the House agrees.
In reply to Deputy O'Higgins, I, as a non-technical person, felt that possibly the word "bodily" should be included but I am assured that it is not necessary. However, now that it has been raised, between now and the Committee Stage in the Seanad, I shall have another look at it and consult some more authorities.
Amendment agreed to.
Amendments Nos. 5 and 6 not moved.
Bill, as amended, received for final consideration.
Agreed to take remaining Stage to-day.
Question—"That the Bill do now pass"—put and agreed to.