Maurice McCurdy | What are the elements of murder?

I have been reading the comments under the story regarding the Irwin High School students. As one can appreciate, I have been very selective with what has been released in consideration of ALL the parties. Maybe as a first in my life, I am lost for words. This, as my mind races in different directions, as the case has highlighted the ugly truths of our social construct and persistent failure to adequately address crime.

BACKGROUND

On the 18th of April 2024, a 15-year-old student of the Irwin High School died after an altercation outside the school gate. Pressured by public outcry, the police were forced to act and took the other student into custody and shortly thereafter charged him with murder. The matter was placed before the family court and the accused was granted bail, again, with significant public outcry against the judiciary.

The matter progressed and faced with a decision under the Committal Proceedings Rules, the examining justice had to make a choice whether to discharge the accused or commit the accused to stand trial in the circuit court. Having examined the statements provided by the police and taking into consideration the written submissions by the crown and the defence, the court formed the view that a prima facie case was not made out against the accused.

LIKKLE LAW

What is a prima facie case? A prima facie case is a case whereby the elements of the offence are made out. Mark you, the court at this juncture is not tasked with the duty to determine guilt or innocence, neither is the court tasked with the duty to weigh up the evidence on findings of facts. This exercise of “examining” the committal proceedings is purely on the basis to determine whether or not there is enough to wage a “sensible” case in the circuit court that would not waste the court’s time.

This legislative process having replaced preliminary enquiries is a marvellous and necessary exercise to protect the rights of accused persons from belabouring through the process of the courts for years, often times with restrictions on their freedom of movement and travel only to have their cases dismissed in the high court at first glance of the deficiencies.

Ask yourself the question: who compensates the accused for the restrictions on their travel and sometimes losing their gainful employment, especially when remanded in custody, after they are found not guilty? Nobody.

Often times, it would take a murder case years to be tried, something that was recently highlighted in the Vybz Kartel retrial hearing. Why, then, should there not be an examination of the crown’s file at the earliest instance, taking into account the elements of the offence.

What are the elements of murder? Murder is the unlawful killing of a human being, with the intention to kill or cause grievous bodily harm. This carefully crafted definition represents a balanced and sober perspective, taking into account the varying possibilities and circumstances one might be faced with. The first thing that jumps at me in such a definition is “unlawful killing”. When would our learned jurists, throughout our inherited and tested jurisprudence, deliberately use the term “unlawful killing” rather than killing?

It suggests that there is such a thing as lawful killing or in simpler terms, not all killing is unlawful. In what circumstance would something as gruesome as killing be lawful? The starting point, I guess, is legislatively mandated killings; that of an executioner. Given that capital punishment (widely regarded as hanging) still exists on our law books as an option available to the courts, when the executioner, by whatever means causes the death of a convict, is the executioner guilty of murder? For certain, it is beyond dispute that the executioner intended to kill the convict. Does this make executioners murderers? No.

Simply because the killing would not be regarded as unlawful. Not unlawful because it has been made “legal” by statute; parliament has sanctioned same.

Our courts have considered and approved circumstances, equally, whereby killings would not be considered unlawful, especially in the case where one has been placed in such a situation whereby force is immediately and impulsively required to repel an attack in the protection of oneself and others.

If yuh pull a gun and charge at me and me shoot yuh to protect meself, weigh me accordingly in a court of law. If yuh neva attack me, me wouldn’t shoot yuh. The test, however, is not as simple as that, it goes much further. The court would have to weigh proportionality and also consider whether or not I had proper reasons to believe that I was about to be attacked.

A line from the case of Beckford v R puts the issue succinctly, “If no more force is used than is reasonable to repel the attack, such force is not unlawful and no crime is committed”. Of significant import, the very case does say that a man about to be attacked is not required to weigh the niceties, meaning, there is no requirement for him/her to prove sober thoughts or take tactical measures if what he is faced with is a legitimate concern for his own life or that of another.

What does intention to kill or cause grievous bodily harm mean? For those who want to seem bright, they will use the term “malice aforethought”. The purpose of this literature is not to seem bright but to break down the issues for the common man to understand and digest in his own “reasonings”.

An intention to kill or cause grievous bodily harm is as the name suggests. The person that commits the killing (not specifying any particular case or giving any particular concession) must have intended to kill the deceased or cause him serious harm. Without this clear and cogent intention, which can be constructed whether by direct or circumstantial evidence, an accused cannot be said to be guilty of murder.

Wa bout manslaughter that me hear of already? Well, even though manslaughter does not require specific intent as murder, case law has, again, offered significant guidance on this issue.

In Andrews Appellant v DPP (case that decided long time by bigwig judges – 1937), the courts examined the degree of negligence to ground the offence of manslaughter (unlawful killing without intention). Lord Atkin said that in order for a prisoner to be guilty of manslaughter “the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention”.

Given the above, the crown (prosecutor dem) would not necessarily have manslaughter available to them in instances of self-defence. Reasons being that a common thread that runs between murder and manslaughter is unlawful killing. So it is not as easy to say, “if yuh cya get him pon murder, hook him pon manslaughter”. Keep in mind all that was said above that not all killing, in law, is an unlawful killing.

SOCIAL INFRASTRUCTURE

Now to the part that has left me speechless. Whenever the public is left seriously incensed, the first call is usually “an eye for an eye”. An eye for an eye is nothing short of a reprisal. How can we be sanctimonious and at the same time call for an eye for an eye rather than, if the accused is actually guilty – wholistic and sensible rehabilitation?

I have always held the view that gangs are formed out of the deficiencies, amongst other reasons, of the formal systems of governance. A quasi government socially constructed, oftentimes with their own gruesome and abhorrent rules, to create some form of peace within their system.

An eye for an eye is gang talk. The inability to seek formal redress for ill-spirited communal behaviour and the persistent need not to be caught in the chains of the formal system, no matter the crime “wi cya afford to leave no witness”.

A most unjust, inequitable and cruel system. Further, driven by grief and underdeveloped quasi jurisprudence, “if yuh mek me head hat me, yuh a go feel it”. “If me cya safe while you are alive, yuh haffi guh dung now now now”. With a thing like this, no matter how many zincs we take down, we will never get rid of the smell of embalmment fluid and white rum. We will never rid our talented young men and women from being mechanised, completely devoid of emotions and doggishly in the pursuit of street stripes. The formal systems of instigation social change and effecting social control must be relentless in its pursuit of cauterising this festering social wound by ensuring fairness, justice and sobriety in all its dispensation.

“An eye for an eye only make the whole world blind” – Mahatma Gandhi. Anuh just chat the man dem did a chat, it actually makes sense. Kill fi me and me kill fi yuh, kill back fi me and me kill back fi yuh. In such a system, who can call themselves safe?

We haffi find a way to make the formal system work fi wi, king. The system within the system is severely inequitable. How much longer we a guh mek death be the answer fi all crime in the system, simply because the king of the jungle cya end up a jailhouse cuz a no police report and witness statement.

It all seem tough and fair until is one a wi ting then a pure bawling. Every man/woman is a star but we haffi learn to work out fiwi ting. Whole heap a work haffi do fi help us find our way, cause surely we loss and we don’t even know it.

Maurice McCurdy is an attorney-at-law. Email feedback to mauricemac5@hotmail.com and columns@gleanerjm.com