Transferred Malice and Coincidence of Actus Reus and Mens Rea

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What is transferred malice?

Transferred malice is when the intended victim and the actual victim are not the same person. The defendant can still be guilty if he intends to kill person A but instead kills person B. This is also applicable to other offences but does not apply when the defendant intended to cause harm to a person but instead broke or damaged an object and vice versa. 

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Latimer (1886)

Defendant tried to attack a man in a pub by striking him with belt. The belt missed and instead hit a woman standing nearby in the face. Latimer was guilty of assault against the woman. 

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Gnango (2011)

Gnango and nother man known as 'Bandanna Man' engaged in a shoot out. Bandanna Man hit a passerby and killed her. Gnago was tried and convicted of her murder. The Court of Appeal quashed his conviction but it was reinstyated by the Supreme Court who said that he was guilty because he agreed to the shoot out with Bandanna Man and was therefore attempting to murder Bandanna Man and also aiding and abetting Bandanna Man's attempt to murder him. Bnadanna Man would have been guilty of murder by transferred malice.This meant that Gnango was also guilty because of his participation in the attempted murder of himself under the principle of transferred malice. 

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Pembilton (1874)

The defendant threw a stone at a group of people he had b een fighting with. He missed the group and the stone broke a window instead. It was held that mens rea to hurt a person cannot be transferred to an object (the window) as it would be a different offence.

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Attorney General's Reference (No. 3 of 1994)

Defendant stabbed his pregnant girlfriend. She recovered from the wound but gave birth prematurely 7 weeks later and the child died 4 months after being born. It was found that the stab had penetrated the baby inside the mother. The defendant was charged with the murder of the child but he was acquitted because the judge said the facts did not amount to the murder of the chil. The Court of Appeal contradicted this by saying that transferred malice was applicable so a murder conviction wass possible. The House of Lords disagreed, saying that the 'the transferee had to be in existence at the time the defendant was proven to form the mental element.'

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What is coincidence of actus reus and mens rea?

Coincidence is concerned with assuring that the actus reus and mens rea were both present at the same time during the offence. Eg. if you want to kill someone but then change your mind, then the next day if you accidentally run them over in a car you wouyld not be guilty because the actus reus anmd m,ens rea were not present at the same time. 

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Thabo Meli v R (1954)

Defendants hit a man opver the head and presumed him dead. They then rolled him off a low cliff to make it look like an accident. The victim was in fact still alive but died of exposure after he was pushed off the cliff. The defendants were guilty of murder. They tried to argue that the actus reus (death from exposure) and mens rea (hitting him over the head) were separate. The courts decided that the whole scenario was One Transaction and they were guilty as the combined actus reus and mens rea were a series of events. 

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Church (1965)

Defendnat brought a woman back to his van for sex. She mocked his incompetence so he knocked her out. He tried for half an hour to bring her round but he couldn't and assumed her dead. He then put her body in the and she drowned as she was actualy still alive. He tried to argue that he shouldn't be guilty of murder because all he did was dispose of a body but conviction of manslaughter was upheld.

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What is a continuing act?

A continuing act is an actus reus that is ongoing and the mens rea can occur at any time during the continuation of the actus reus, not just at the start.

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Fagan v Metropolitan Police Commissioner (1986)

The defendant accidentally drove onto a police officer's foot as he had been asked to park by the kerb. Fagan didn't realis what he had done and when then police officer asked him to move his car he refused. He kept refusing until he eventually moved the car. He was convicted of assaulting a police officer in the execution of his duty. The Court of Appeal held that once Fagan knew that the car was on the police officer's foot and refused to move it he had the required mens rea.As the actus reus (the car being on the police officer's foot) was continuing, the tewo elements were there at the same time.

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