OSCAR PISTORIUS: THE ABILITY TO CALL BLACK, WHITE

After the news of Oscar Pistorius not being guilty of murder but may be guilty of manslaughter broke, a friend sent me a message ‘you people are the same world over,
the only profession that can call an obvious white shirt black shirt and still stand by it
’ I laughed not for anything but because i am not just educated but learned, proud to be a lawyer.

For this reason we shall be discussing murder, manslaughter, the basic element of an offence of murder and when murder will not stand. Am sure after reading this you will be able to tell if truly the lawyers/judge handling Oscar’s case called an obvious black, white.

Section 316 of the Criminal Code defines Murder as an unlawful killing of another person under any of the following instances:

(1.)  If the offender intends to cause to death of the person killed, or that of some other person

(2.)  If the offender intends to do the person killed, or to some other some grievous (in this case it is immaterial that the offender did not intend to hurt the particular person who is killed)

(3.)  If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life.

(4.)  If the offenders intend to do grievous arm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such an offence.

 

In proving an offence of murder, the burden is on the prosecution to prove that the deceased died, the death was caused by the accused, the accused intends to either to either kill victim or grievously harm him. In oscar’s case the onus is on the prosecution. In AMAYO V. STATE (2002) FWLR (PT 91) 151@1595 it was established that ingredients of murder must be proved beyond reasonable doubt, acts of the accused was intentional with knowledge of probable death or grievous bodily harm and that the act or omission caused death. Also the Supreme Court decision in UBANI & ORS V. STATE (2004) FWLR PT 191 1533@1546 SC

Intention in a murder case, unlawful homicide with malice aforethought does not necessarily imply premeditation but implies intention RV. DOHERTY thus court held that,he that doth cruelty act voluntarily ,doth it of malice.

Murder cannot be by an act of a nature that cannot be likely to have the result of endangering human life in the expectation of a reasonable man OTUNBA SHOWEMIMO & ORS V. THE STATE (2001) FWLR, evidence of motive is not an essential ingredient in the case of murder neither is absence of motive a justification or excuse for murder.

Mens rea must show specific intention to kill in murder, in manslaughter, basic intention to do acts which constitute a crime is the element, a judge must be very sure that there is no fact that might justify a jury returning a verdict of manslaughter within the foregoing criteria. Please note that the requirement for intention in murder case by virtue of Section 254(4) of the Criminal Code does not mean an acquittal for murder should be entered upon default thereof.

One of the grounds why Oscar Pistorius was acquitted of murdering his girlfriend on Valentine’s Day is because one of the ingredients of murder was absent which is an intention to kill the deceased. This is an essential ingredient.

Manslaughter as defined by Section 317 of the Criminal Code cap 27 where a person unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter. An intention to cause grievous bodily harm inference drawn on appeal from available evidence as held in OYEGBADE AGBAJE V. STATE (1978) 10 CA, where there is self defence, offence is reducible to manslaughter, gross negligence can sustain manslaughter but above all manslaughter must be proved beyond reasonable doubt.

For manslaughter to stand, the prosecution must in a man slaughter case prove death of the deceased, unlawful killing of the deceased, accused killed deceased, that unlawful killing was in the six circumstances enumerated under the criminal Code otherwise burden of proof is not discharged and the accused person would be entitled to acquittal. EDOHO V. STATE (2003) FWLR PT 173 29 CA. Reduction of offence to manslaughter does not admit of circumstances where premedited plan to murder is executed.

Manslaughter requires proof that the death of the deceased.

Thank you.

OYENIKE ALLIYU-ADEBIYI LLB (HONS) BL