Attempted murder (with self defence and s18 as an alternative)
Someone is guilty of murder if he unlawfully kills another person.
But in this case D** is not charged with murder. He is charged with attempted murder.
Before you can convict him of this count, you must be sure of two things: first that he intended to kill C** and second, that, with that intention, he did something which was more than mere preparation for committing that offence.
Obviously stabbing someone with a knife, as the prosecution say D** did, may be more than mere preparation.
So one of the most important issues for you to decide in relation to the count of attempted murder is what D** intended. Did he intend to kill C**?
You can only decide what his intention was by considering all the relevant circumstances and in particular what he did and what he said.
When considering what D** intended, what matters is what was in his mind, not what was in his mother, X**’s, mind.
The prosecution case is that that this was an intentional and planned attack. They say that D** went into his house and armed himself with a knife before attacking C**. … … … and that in view of this and all the surrounding circumstances you can infer that D**’s intention was not just to do serious harm but to kill C**. In evidence D** said “if you stab somebody, it is likely they will die, or cause grave injury.”
D** denies that the wounds were deliberately inflicted and says that C2**, C**’s brother, went into C**’s house and came out with a baseball bat and a knife, and then handed the knife to C**. .. … D** accepts that he caused the wounds, perhaps when they fell to the ground or perhaps when he was waving the knife about. So his defence in this court is principally one of accident – denying that he intended to cause C** any harm, let alone kill him.
However, when interviewed by the police, D** gave a prepared statement which included the following “I waved it [the knife] at him to get him away and stabbed him out of fear.” This raises the question of self-defence.
Self defence
What is the law concerning self defence? A person who is attacked or believes that he or someoneelse is about to be attacked may use such force as is reasonably necessary to defend himself or that person. If that is the case he is acting in lawful self-defence, and is entitled to be found ‘Not Guilty’. It is for the prosecution to make you sure that the defendant was not acting in lawful self-defence. He does not have to prove anything.
A person only acts in lawful self-defence if in all the circumstances he believes that it is necessary for him to defend himself or another person and if the amount of force that he uses in doing so is reasonable. So there are two main questions for you to answer:
1. Did the defendant honestly believe or may he honestly have believed that it was necessary to defend himself or his mother? A person who knows he does not need to resort to violence does not act in lawful self-defence. If you are sure that the defendant did not honestly believe that it was necessary to defend himself or his mother, then self-defence does not arise in this case. But if you decide that he was or may have been acting in that belief, you must consider the second question:
2. Taking the circumstances and the danger as the defendant honestly believed them to be, was the amount of force which he used reasonable? Force used in self-defence is unreasonable and unlawful if it is out of all proportion to the nature of the attack, or is in excess of what is really required of the defendant to defend himself.
A person who is defending himself or another cannot be expected in the heat of the moment to weigh precisely the exact amount of defensive action which is necessary. If you conclude that the defendant did no more than he honestly and instinctively thought was necessary to defend himself or his mother, you may think that would be strong evidence that the amount of force used by him was reasonable. If you are sure that the force used by the defendant was unreasonable, he cannot have been acting in lawful self-defence; but if force used was or may have been reasonable, then he is not guilty.
As I have said, one of the most important questions for you to consider in relation to Count 1, is whether or not D** intended to kill C**. If he did not intend to kill him, he cannot be guilty of attempted murder.
However he may be guilty of the alternative, lesser offence of wounding with intent to do him grievous bodily harm which is Count 2.
Count 2 Wounding with intent to cause grievous bodily harm
This is an alternative to Count 1.
You cannot find D** guilty of both counts 1 and 2 because they are alternatives.
unlawfully and maliciously
This means without any legal excuse. Self defence may amount to a legal excuse. I have already directed you about self defence.
Wounded
That simply means breaking the skin. Any cut is a wound. The injuries caused to the back of C**’s neck and in the area of his ribs, described in the Admissions and which we have seen in the photographs, our exhibit **, were wounds.
With intent to do him grievous bodily harm
Grievous bodily harm means “really serious harm”.
This is disputed by the defendant. He says that the injuries were caused by accident in the struggle. If that is so, he is not guilty of Count 2. Before you can find the defendant guilty of wounding with intent, you must be sure that at the time when the wounds were caused, D** intended to cause really serious harm to C** or foresaw that such harm would be caused.
If you are sure that at the material time D** recognised that serious harm would be virtually certain to result from his actions, then that is a fact from which you may find it easy to infer that he intended to do serious bodily harm.
As they are alternatives, I would suggest that you consider Counts 1 and 2 together. It may well be that the best starting point is to decide whether, as the prosecution say, D** went into his mother’s house and came out with the knife, or whether, as the defence say, C2** went into his brother’s house and came out with a knife and baseball bat.
So, after considering who brought out the knife, the key questions for you to answer in relation to Counts 1 and 2, having regard to all the evidence and the directions which I give you, are these
1. Did D** honestly believe, or may he honestly have believed, that it was necessary to defend himself or his mother?
If you are sure that the answer to that question is no, you should move on to question 3 (ignoring question 2). If the answer may be yes, move on to question 2.
2. Taking the circumstances and the danger as D** honestly believed them to be, was the amount of any force he used reasonable?
If you are sure that the answer to that question is no, move on to question 3. If the answer may be yes, he is not guilty of Counts 1 and 2 and you do not have to consider questions 3 or 4.
3. Are you sure that D** intended to kill C**?
If the answer to this question is “yes”, he is guilty of Count 1, attempted murder, and you do not have to consider Count 2 or Question 4. However, if the answer is no, you should consider question 4.
4. Are you sure that D** intended to cause really serious harm to C** or foresaw that such harm would be caused?
If the answer is “yes”, the defendant is guilty of Count 2, wounding with intent.
If the answer is “no”, he is not guilty of Count 2.