IN THE SUPREME COURT
BETWEEN:
CHARLES WAITROSE Appellant
and
REPUBLIC OF CANADA Respondent
APPELLANT SKELTON ARGUMENT
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INTRODUCTION AND FACTUAL BACKGROUND
The agreed facts of the case as it was before the trial and first appellate court were that Florence Waitrose, 8, had been suffering from an inoperable malignant brain tumor for six months. Despite receiving significant amounts of medication to help abate her pain, she continued to suffer considerably in the terminal stages of her life. All other curative treatments had ceased, and she was being nursed at home by her parents. Her father, Charles Rose, under the feeling that neither he nor his daughter could cope any longer with Florence’s pain and suffering, suffocated her with a pillow. He was consequently charged with murder. At his trial, he pleaded necessity as a defense to the charge. Jumble J, while recognizing the controversial nature of this criminal defense, he held that the approach to its requirements as set out in A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961, should be entirely objective. The modified objective test propounded by the Supreme Court of Canada in R V Latimer [2001] W.C.B. (2d) 279 was rejected by the trial judge. On the question of mens rea or intent for murder, the trial judge held that the test of foresight of virtual certainty as adopted in A (Children) case was correct. Thus, Waitrose was found guilty of murdering his daughter Florence. His appeal to the Court of Appeal was unsuccessful hence leading to the present appeal before the Supreme Court.
GROUNDS OF APPEAL
The appellant appeals on the following certified grounds:
Is the defense of necessity available to the offence of murder outside the particular circumstances that arose in A (Children), and, if so, do the three requirements for the defence as set out in A (Children) leave room for the jury to take into account the defendant's reasonable belief, or are they purely objective?
Is the test of foresight of virtual certainty as interpreted in A (Children) consistent with the earlier House of Lords decision in R v Woollin [1998] 4 All ER 103, which held that where a consequence is foreseen as 'virtually certain', the jury may find that the defendant had the necessary intentions?
SUBMISSIONS: SUMMARY OF APPELLANT’S CASE
It is the appellant’s submission on this ground that the trial judge erred both in law and fact by failing to take into consideration the defendant’s reasonable belief as to the condition of his daughter. The appellant in this present case had only two alternatives to choose from, that is, let the daughter continue to anguish in pain, let her suffer extreme hardship and see medical bills continue pilling or relieve her of her suffering. Further, even if the court were to insist on the requirements of necessity being strictly determined using an objective test, then it should admit the appellant’s argument that any other reasonable person in his position would have done just that. On this basis, the trial judge made an error of law when it directed that the defendant was guilty of murder. The judge ought to have directed a charge of manslaughter due to lack of direct intention and having acted by necessity. According to Yeo (2008), under the defense of necessity, the most important consideration should be the nature of the threat and circumstances that face the accused.
Authorities
The Canadian Criminal Code,
R v Moloney (1985
Allen (2015)
R V Hancock ad Shankland (1986)
Loveless (2014)
Submissions on the Second Ground of Appeal
The appellant submits on this ground of appeal that the trial court made an error of law by failing to consider the precedent in R V Woollin [1998] 4 All ER 103 where it was held that the judge might only direct the jury to find that the defendant had the necessary intention if a virtual certainty is proved. In the trial case, the Prosecution had not sufficiently shown that the accused by suffocating the girl death or serious bodily harm was a virtual certainty. This was the same holding in R V Nedrick (1986) where Lord Lane made it clear that foresight is not intent in itself but merely evidence from which h intention to kill or harm was present. Moreover, in R v Matthews and Alleyne (2003), the Court of Appeal found that the trial judge had misdirected the jury by telling them to treat foresight of death as virtual certainty as intention. Thus, it is submitted on behalf of the appellant that he did not have the requisite intent to cause serious bodily injury even though death resulted. The virtual intention of the appellant was mere to relieve the daughter of pain and not to kill her in the legal sense of the word.
Authorities
Ashworth & Horder (2013)
R V Woollin [1998] 4 All ER 103
Martin & Storey (2013)
R V Nedrick (1986)
PRAYERS
CONCLUSION
References List
Allen, M. J., 2015. Textbook on criminal law. 13 ed. Oxford: Oxford University Press.
Ashworth, A. & Horder, J., 2013. Principles of criminal law. 7 ed. Oxford: Oxford University Press.
Loveless, J., 2014. Complete criminal law: Text, cases, and materials. 4 ed. Oxford: Oxford University Press.
Martin, J. & Storey, T., 2013. Unlocking criminal law. 3 ed. New York: Routledge.
Yeo, S., 2008. Commonwealth and international perspectives on self-defense, duress, and necessity. Current Issues in Criminal Justice, 19(3), pp. 345-362.
