AG’s Reference [No. 3 of 1994]

1. Facts:

• The defendant (D) stabbed his pregnant girlfriend, causing a wound that led to the premature birth of the baby.

• The baby died some time after birth due to complications resulting from the injury.

• D was charged with the murder of the baby.

2. Outcome:

• D was not found liable for the baby’s murder.

• The court ruled that there was a "double transfer" of malice: from the mother to the unborn child, and then from the unborn child to the person the baby would become in the future.

• The foetus was not considered a "person" under the law at the time, so D did not have the necessary mens rea (MR) for murder.

• D was found to have sufficient mens rea for constructive manslaughter.

3. Impact and Analysis:

• Double Transfer Issue: The case highlighted the complexity of applying criminal intent when multiple transfers of harm are involved, demonstrating challenges in extending liability for harm to a future person.

• Legal Personhood: It emphasised that a foetus is not legally recognised as a person in terms of criminal liability, affecting the application of criminal intent and responsibility.

• Constructive Manslaughter: D’s conviction for constructive manslaughter showed that while specific intent for murder was not established, there was sufficient general malice (the intent to cause harm) to warrant a conviction for a lesser offence.

• General Malice: The case illustrated the concept of "general malice," where intent to harm a class of people or a group is sufficient for liability, as opposed to requiring a specific intent to harm a particular individual.