Interaction of MR and AR – Criminal Law – 4
Transferred Malice
Cases
Latimer (1886)
A man took off his belt and swung at someone he had an argument with
1. Focuses on if a crime is meant for X but but missed and hit the landlady.
actually affects Y.
2. Mr Transferred from X to Y. (Latimer) Pembilton
3. AR and MR must be of the same offence. D picked up a stone and threw it at a group of men he had been fighting
with. Missed and hit a window. No transferred malice between OAPA
(Pembilton, Mitchell) and criminal damage.
4. There cannot be double transferred malice.
(A-G Ref (No 3 of 1994)) Mitchell
D got in a fight at a post office, pushed a victim, who fell into an elderly
lady and she fell over. She died. Because V intended OAPA, he was liable
for manslaughter of the elderly lady. (Intended to hurt a person, doesn’t
matter on degree of hurt)
A-G Ref (No 3 of 1994)
D’s intended action was to cause GBH to girlfriend. She died. Her unborn
child died from complications arising from the stab wound he induced.
Foetus is not a person, so had to be a transfer from the girlfriend, to the
unborn child, which came from a foetus. Too many ‘transfers.
Coincidence Principle
- When AR and MR do not happen at the same time, but both are completed.
Single Transaction = MR Occurs Before AR
Miller
Lit a cigarette and moved to another room.
Thabo-Meli [1954]
D planned to kill v with 3 others. To look like an accident, hit him on the head and threw
him off a cliff. Died of exposure as he lay at the bottom of the cliff.
D claimed MR was at the head hitting, not the bottom of the cliff. Actions of the defendants Single Continuing Act – AR occurs
formed a single transaction. before MR
Pre-mediation helps this.
Where D commits the AR and MR for an offence but at different times the courts can view Fagan
the transaction as a single continuing act in order to find liability. Drove over Police Officers foot,
when told he had done so, he
Church [1966] refused to move.
A pre-conceived plan to commit AR was not necessary to see the act as being part of a
single transaction. Frustratingly, the courts did not explain why D’s actions in church were
seen as a single transaction. Lengthens the act in order to
establish the defendant’s liability, or
Le Brun [1992] the act can be seen as a failure to
D had an argument with V outside house. D hit V and caused her to become unconscious. act.
Court accepted he did not intend serious harm, and D knew that V wasn’t dead when he
tried to cover up his crime by dragging her away from the house. This process of dragging
her away hit her head on the pavement, fracturing her skull and resulting in her dying.
Convicted of manslaughter. Actions were not seen as a singular transaction and there was
no pre-mediation.
CoA upheld conviction as D’s actions were of the same type.
CoA approved that if the defendant had moved the victim in a genuine attempt to help her
then this would not be seen as a single transaction and would break the doctrine.
Transferred Malice
Cases
Latimer (1886)
A man took off his belt and swung at someone he had an argument with
1. Focuses on if a crime is meant for X but but missed and hit the landlady.
actually affects Y.
2. Mr Transferred from X to Y. (Latimer) Pembilton
3. AR and MR must be of the same offence. D picked up a stone and threw it at a group of men he had been fighting
with. Missed and hit a window. No transferred malice between OAPA
(Pembilton, Mitchell) and criminal damage.
4. There cannot be double transferred malice.
(A-G Ref (No 3 of 1994)) Mitchell
D got in a fight at a post office, pushed a victim, who fell into an elderly
lady and she fell over. She died. Because V intended OAPA, he was liable
for manslaughter of the elderly lady. (Intended to hurt a person, doesn’t
matter on degree of hurt)
A-G Ref (No 3 of 1994)
D’s intended action was to cause GBH to girlfriend. She died. Her unborn
child died from complications arising from the stab wound he induced.
Foetus is not a person, so had to be a transfer from the girlfriend, to the
unborn child, which came from a foetus. Too many ‘transfers.
Coincidence Principle
- When AR and MR do not happen at the same time, but both are completed.
Single Transaction = MR Occurs Before AR
Miller
Lit a cigarette and moved to another room.
Thabo-Meli [1954]
D planned to kill v with 3 others. To look like an accident, hit him on the head and threw
him off a cliff. Died of exposure as he lay at the bottom of the cliff.
D claimed MR was at the head hitting, not the bottom of the cliff. Actions of the defendants Single Continuing Act – AR occurs
formed a single transaction. before MR
Pre-mediation helps this.
Where D commits the AR and MR for an offence but at different times the courts can view Fagan
the transaction as a single continuing act in order to find liability. Drove over Police Officers foot,
when told he had done so, he
Church [1966] refused to move.
A pre-conceived plan to commit AR was not necessary to see the act as being part of a
single transaction. Frustratingly, the courts did not explain why D’s actions in church were
seen as a single transaction. Lengthens the act in order to
establish the defendant’s liability, or
Le Brun [1992] the act can be seen as a failure to
D had an argument with V outside house. D hit V and caused her to become unconscious. act.
Court accepted he did not intend serious harm, and D knew that V wasn’t dead when he
tried to cover up his crime by dragging her away from the house. This process of dragging
her away hit her head on the pavement, fracturing her skull and resulting in her dying.
Convicted of manslaughter. Actions were not seen as a singular transaction and there was
no pre-mediation.
CoA upheld conviction as D’s actions were of the same type.
CoA approved that if the defendant had moved the victim in a genuine attempt to help her
then this would not be seen as a single transaction and would break the doctrine.
