Ahmad Farzan Mock 6

Question 2)

Femi lives with Sonya. Femi regularly forces Sonya to give him the money which she earns working as a
prostitute. He has beaten her and sexually abused her on a number of occasions, particularly when he is
drunk. One evening, while cooking, Sonya hears Femi stumbling through the front door, clearly
intoxicated. Fearing that Femi will beat her up again and force her to have sex with him, Sonya cuts her
wrists. When Femi sees what she has done, he taunts her, saying that she is a pathetic attention seeker.
Sonya reaches for the bread knife and throws it at Femi. In trying to avoid the knife, Femi falls over and
hits his head on the floor, rendering him unconscious. Sonya runs out of the house slamming the door
saying, “that serves you right, you bully, I hope you die.” The effect of slamming the door is to extinguish
the flames on the gas cooker. When Sonya returns Femi is dead, having been asphyxiated by the gas.

Discuss Sonya’s potential liability for the murder of Femi and any defences which may be available.

Answer 2)
This proposition deals with the common law offence of murder which is committed when a defendant
unlawfully causes death of a person (actus rea) with an intention to kill or cause grievous bodily harm (mens
rea). In the given situation if the actus reus and the mens rea are available the defendant may be convicted of
murder if no defences are allowed. However, the partial defense of loss of self-control as stated under S54 of
coroner and Justice Act 2009 may be available due to the treatment given to the defendant (Sonya) by the
victim (Femi) with availability of other possible triggers.

The prosecution may bring forth the conviction of murder. In order to be convicted for murder Sonya first needs
to fulfill the requirement of specific actus reus and mens rea for murder. Sonya did the required actus reus by
unlawfully killing Femi. Her conduct of throwing the bread knife started the chain of causation thus being the
factual cause of Femi’s death as but for (White 1910) her throwing the knife, Femi would not have tried to
avoid it and end up unconscious and unable to walk out of the house once the house was filled with the noxious
gas due to Sonya slamming the door and extinguishing the flames on the gas cooker. It was also the legal cause
due to the unlawful and positively criminal nature of her conduct. However, the defense can argue that it was
Femi’s fault for ending up in that situation however if we were to look at escape cases when the victim tries
escaping, his conduct is considered foreseeable if it’s within the range of responses expected of a person in his
situation and are not so daft as to make them substantially independent of defendants conduct such as the case
of Williams and Davies (1992) where the hitchhiker jumped out of a moving car to avoid the defendants violent
conduct. If we were to see if there was an intervening factor in this argument it can be seen the gassing is
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independent of the initial wrongdoing and sufficient in itself to cause death. If the chain of causation is broken –
the correct charge will be Offences Against the Person Act 1861 S47 or Wounding or cause GBH S20

Two issues arise. First, is there evidence of an intention to kill or, if not to kill, to cause serious injury? Simply
throwing a breadknife is too equivocal on this matter. This is not

a case where reliance on Woollin is appropriate. It is direct intention or nothing. The best evidence of a direct
intention to kill or cause GBH comes in the subsequent statement ‘I hope you die’ which might indicate an
intention to cause at least serious injury. The defendant (D) may fulfill the required mens rea for the common
law offence, an intention to kill or cause grievous bodily harm as described in Vickers (1957). The omission to
help could also form a separate basis for the charge of murder. There is a duty to act based on the Miller
principle. There is evidence of mens rea. ‘I hope you die’ is pretty damning. Again, causation is an important
issue for the same reason as above. Again, if the jury is satisfied on the elements of murder by omission, loss of
control can be raised since it is a defence that applies whether murder is committed by act or omission.

Defences may be available to the defence counsel. Absolute defences – if made available would clear all
liability from Sonya. No absolute defence may be available under the mentioned facts- however, partial
defences may be allowed. Using a partial defence (like loss of self-control, diminished responsibility or suicide
pact) would decrease her conviction from murder to voluntary manslaughter. Considering the treatment Sonya
was given by the victim (Femi) [of verbal abuse and oppression] her counsel may be able to bring up the partial
defence of loss of self-control (LOSC) under S54 of coroner and Justice Act 2009.

Under S54(1) CJA 2009 it is stated (a) the act or omission must be done under LOSC (b) which is a qualifying
trigger (c) where a person of normal tolerance and self-control, of the same age and gender as defendant would
have acted similarly in the given circumstances. Its further states within S54(2) that it does not matter whether
or not the loss of self-control was sudden.

Given that we are asked to consider liability for murder, it is appropriate for us to conclude that if murder was
the correct charge, then loss of (self) control can be raised. Assuming there is a loss of control, as seen in the
case of Dawes, there is a combination of triggers (fear of violence, circumstance of a grave character –justified
sense of being seriously wronged), which put together should satisfy the qualifying trigger. The judge will
decide whether separately or together these events are capable of being qualifying triggers. The jury then has
the job of deciding whether they were. You need to specify exactly what triggering action you are relying upon.
Here it will be the cumulative abuse together with the final straw – the taunting as in the case of Clinton.
Further triggers have been outlined under S55 Of CJA 2009.
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It has been stated under S55(3) that defendant may act in fear of serious violence from victim or (4) she may act
upon things done or said by the victim which constituted character of an extremely grave nature or caused the
defendant to have justifiable sense of being seriously wronged. The first trigger is applicable in Sonya’s case as
she faced violence from Femi’s side previously. The second and third trigger under S55(4) sit well upon the
given situation as Sonya had been tormented in a similar way as the defendant in Acott (1996) had been
tormented by his mother. Nonetheless this question

will be answered by the jury, with regard to the gravity of things said and done to make the defendants sense of
being seriously wronged justifiable.

Under S54(1)(c) the defendant’s reaction is to be compared to a person with a normal degree of tolerance and
self-restraint sharing the age and gender of the defendant in defendants’ circumstances. S54(3) defines the
circumstances of the defendant- as all of his circumstances other than those which do not have any relation the
defendants conduct apart from affecting D’s general capacity for tolerance or self-restraint. This section allows
all gravity characteristics to be considered and with it any previous abuse faced by Sonya. As in Humphrey
(1995) the jury considered D’s history of abuse while deciding LOSC.

Based on the evidence above, loss of self-control as a qualifying trigger would decrease the defendant’s
conviction from murder to voluntary manslaughter. This defence may be available to Sonya, however this
would be based on the jury’s discretion. This could only be given where the mens rea of the defendant has been
concluded to be that specifically required for murder.

Question 6)

Aftab, finding he has no money for his bus fare, takes £5 from Erina, his housemate’s wallet, leaving a
note saying that he will repay it on his return. Erina has told him on a previous occasion not to do this.
When he gets on the bus the driver tells him to pay later as the bus is running late. Aftab gets off the bus
without paying, reasoning that other would have done the same. Later he spots a basket of apples on the
street outside a house. Above the basket is a sign saying. ‘I have too many apples for my own use. Please
take some but leave some for others.’ Aftab takes 50 apples leaving only three in the basket. He then goes
to a fruit and vegetable shop where he sells the apples to the owner. He then buys some vegetables, using
Erina’s £5 note. Next Aftab goes to an ATM cash dispenser where he withdraws £5 to repay Erina,
although he knows he has no funds in his bank account to cover the withdrawal. He returns home and
puts the £5 back in Erina’s wallet. Erina sees him do this and gets angry. She accuses Aftab of being a
thief, to which he replies “I’m not a thief. I gave you the money back. That is not theft and anyway it is
not dishonest.’ Erina replies “Well I think it is, since you knew I wouldn't agree.” Discuss.
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DO NOT discuss the law relating to handling stolen goods.

Answer 6)

The question at hand is concerned with law on Theft which is covered under Theft Act 1968 and making off
Without Payment which is covered in Theft Act 1978. A person can be held liable for the offence of Theft
under Theft Act 1968, if he dishonestly appropriates property belonging to another with the intention of
permanently depriving other from it.

Aftab Taking Erina’s £5:

The first charge for the offence of Theft under Theft Act 1968 could be brought up against Aftab for taking £5
from Erina’s wallet, even though Erina told him not to take money from her wallet. The first issue in this
question is of dishonesty. The conversation between these 2 indicates that Aftab did not believe his actions to be
dishonest, whereas Erina believe them to be dishonest. According to the standards of ordinary reasonable
person of Ivey v Genting Casinos [2017] (Ivey Test), Aftab’s conduct seems to be dishonest due to the fact that,
Erina previously told him not to take money from her wallet, and Aftab knew it and he further knew that Erina
would not like it, yet he ignored this and took the money. Moreover, Aftab appropriated the money which
belonged to Erina. Furthermore, it can be said that it was not his intention to permanently deprive Erina,
because he returned the money later on. However, the judgement in the case of

R v Velumyl [1989], clearly dictates that the defendant will be guilty of the unless he returns the same bank
notes or coins he first took. Relating this to our case, it is clear that Aftab did not return the same £5 bill he first
took, rather he returned a different bill which he took from the ATM dispenser. Hence, Aftab will be held liable
for committing the offence of Theft against Erina under Theft Act 1968.

Bus Fare:

It is not suitable to raise a charge of theft against Aftab for this situation because actus reus and mens rea of
theft do not coincide. To overcome this, we will try to establish a charge of Making off without Payment. The
payment for the transportation is required to be made on spot and Aftab surely knew that but he believed others
would not pay as well. Aftab can argue that the spot to pay for the ticket was the place where he entered the bus,
but the driver told him to pay later, which means the exit barrier is not the spot. However, in the case of
Moberly v Alsop [1991], it was held that “the spot where payment was due was not limited to where the
defendant should have paid (departure hall), but also to where he should have made good his default
(Destination). This means that spot can be both, where Aftab entered the bus as well as where he reached his
destination and exited the bus. Moreover, Aftab assumed himself that other would also not pay, even though,
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the bus driver explicitly told him to ‘pay later’ which means Aftab had knowledge that he must have to pay at
exit point but still he decided to leave with an intention to avoid payment. Hence, this proves his dishonesty
even according to the standards of a reasonable person (Ivey Test). Thus, Aftab made of without paying for the
transportation service and he knew payment is expected to be made on spot(destination) and still left with a
dishonest intention to avoid payment. Therefore, he will be held liable for the offence of Making off without
Payment under Theft Act 1978.

Aftab Taking Apples:

Prosecution will most likely raise the charge of Theft against Aftab for this situation. The first issue arises of
appropriation. Aftab took the apples with the owner’s consent which means it could be a gift, however, the
consent is irrelevant in this case (R v Hinks [2002]) because Aftab’s intention could be considered as dishonest
due to the fact, that he wanted to sell apples and get some money instead of eating them. Moreover, the owner
specifically stated to take ‘some’ and leave ‘some’ for others. He only gave permission to take ‘some’ but,
Aftab almost took all the apples in order to get some cash by selling them, this also proves his dishonesty even
according to the standards of reasonable person (Ivey v Genting Casinos [2017]). Furthermore, this will not fall
in the exceptions under s.2(1)(a) & s.2(1)(b), due to the fact that his belief was not honest and similarly, the
owner had no idea about the circumstances. Hence Aftab dishonestly appropriated the apples which belonged to
the owner and others with an intention to sell them and permanently deprive other from them. Thus, Aftab will
be held liable for the offence of Theft under Theft Act 1968.

Aftab Selling Apples:

Since most of the property (apples) belonged to the owner and others, this means Aftab did not had any rights to
sell them. The issue here arises of conditional gift. Assumption is that the owner left the apple outside for
general public with a belief to help others, so they can fulfill their and their family’s appetite by eating them.
Moreover, the condition was only to take some as stated above but Aftab took 50 of the total 53 apples and to
my understandings 50 out of 53 does not constitute to ‘some’, that is why Aftab do not have any rights to take
all and sell. If owner wanted to sell them, he could have sold himself, but he did not, which means he wanted
others to enjoy eating apples but not to sell them. This proves that the owner only gave rights to Aftab to eat
apples himself or someone he knows, not to sell them in the market for money. However, if it were not
conditioned to take ‘some’ then Aftab would have the right to sell them as they would have been his property
(Williams v Phillips [1956]).

Aftab Taking Money from ATM Machine:

Since Aftab did not have any money in his bank account and yet he withdrew £5 from ATM machine, this will
enable prosecution to raise charge of theft against Aftab. Aftab knew that bank did not owe him any money and
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he still took £5 from ATM, this proves that his actions and intentions were dishonest according to the standards
of ordinary reasonable person (Ivey Test). Moreover, he assumed the rights of the owner when he took money
from ATM because owner (Bank) would not have allowed him to take money otherwise. Hence, He dishonestly
appropriated property (£5) which belonged to the bank with an intention to permanently deprive bank of that £5
and give that to Erina. Therefore, Aftab will be convicted of Theft under Theft Act 1968. Furthermore,
prosecution could raise another charge of False Representation under Fraud Act 2006 on this situation as well.
Aftab impliedly made a partially false representation of state of mind to the ATM machine that bank owed him
the money and he is authorized to take it, he did this in order to make gain for himself in form of money.
Moreover, his intentions were dishonest as well (Ivey Test). Therefore, he could be held liable for the offence of
false representation covered under Fraud Act 2006 as well.

In conclusion, therefore, it is submitted that Aftab will be convicted on multiple offences. Namely, three counts
on the offence of Theft under Theft Act 2006, the offence of Making off without Payment under Theft Act
1978, and the offence of False Representation under Fraud Act 2006.