MALICE AFORETHOUGHT

Malice aforethought is a legal term that refers to the intention of the accused to cause the death
of the victim. It is the mental state, or mens rea, required for a charge of murder. This concept is
defined under Section 204 of the Penal Code.

- Intention to cause death or grievous harm to any person, whether the victim is killed or not.

- Knowledge that the act causing death will likely result in death or grievous harm to someone,
regardless of whether that person is the victim, accompanied by indifference or a wish that harm
not be caused.

- Intent to commit a felony.

- Intent through the act to help someone escape custody who has committed or attempted to
commit a felony.

In the case of DPP v Lukwosha (1966) ZLR 14, it was established that in a murder charge, it is
the malice of the person who committed the act that needs to be proven, not the hypothetical
malice of a reasonable person. However, when evaluating the evidence, it can be helpful to
consider what a reasonable person might have intended or foreseen in similar circumstances.

Allen and Cooper make an important observation regarding the concept of "malice aforethought"
in criminal law. They argue that this term doesn't necessarily imply ill will or premeditation.
Therefore, even if someone kills out of mercy or compassion to end suffering, they could still be
guilty of murder. Similarly, someone who kills in the heat of the moment without planning could
also be guilty of murder.

A real-life example of this is seen in the case of Inglis (2010) EWCA Crim 2637, where the
Court of Appeal upheld the conviction for murder of a mother who injected her seriously ill son
with heroin in a hospital bed, thinking she was performing a mercy killing. The court reiterated
that all mercy killings are illegal, and any change in the law should be decided by Parliament.

In summary, according to the Chief Justice Lord Judge, the law treats all murders the same
regardless of the motive behind them, whether it's malevolent intentions or familial love.

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However, there are established defenses like loss of self-control or diminished responsibility that
can be used in certain cases. Nonetheless, mercy killing is still considered murder under the law.

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