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Dissecting the offence of murder
Ignorance of the law is not an excuse. The Pro Bono Committee of the Law Students’ Association of Sri Lanka strives to educate the general public by simplifying the laws in our country
Attempted murder is when the defendant has attempted to kill the victim but the attempt was not successful. When a person aims a gun at a person but he misses the shot, this will amount to a crime of attempted murder
An intense emotional outrage may lead to a murder. Although it satisfies inbuilt rage of a person, are the consequences thought through? The Law does not permit a criminal to reside in society as they become a threat to the others. This article will explain how the crime of murder is analysed under the Sri Lankan legal system. The objective of this article is to dissuade or demotivate anyone from contemplating murder. Law is Light is a trilingual legal project to shed light on the law. The Latin maxim “ignorantia legis neminem excusat” translates to ignorance of the law is not an excuse. The Pro Bono Committee of the Law Students’ Association of Sri Lanka strives to educate the general public by simplifying the laws in our country. In the 5th discussion, the program focused on “Murder”. The discussion featured Attorneys-at- Law: Mr. Saliya Pieris PC, the President of the Bar Association of Sri Lanka. Mr. Nayantha Wijesundara, a practitioner in Appellate Courts and Thirukumaran Vishvalingam, a Notary Public and Commissioner of oaths.
What is murder?
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Mr. Saliya Pieris PC, the President of the Bar Association of Sri Lanka |
It is the act of killing coupled with an intention of terminating the life of an individual. In the event the accused (murderer) had the knowledge that; the victim is suffering from a disease and the accused proceeded to cause harm knowing that his act will cause the death of the other, this too will amount to murder. Knowledge is an important element.
The offence of a murder is often understood by society as killing that results in a dead body. How will a person face punishment even without there being a dead body for an offence of murder?
The onus to prove a person guilty of the crime beyond reasonable doubt rests with the prosecution. For the murder to be established, three facts need to be proved 1) a person was killed 2) the act that resulted in the murder was done by the accused 3) the accused had the requisite intention to kill. The best evidence of murder is the dead body. The murderer may destroy the corpse but not having a dead body will not negate the crime of murder. Circumstantial evidence can be used to prove that the murder occurred.
How is a person liable for murder, when there is only an intention to commit murder?
Intention is one of the ingredients of murder. Whoever causes death with the intention of causing death or with the intention of causing bodily injury as is likely to cause death or with the knowledge that he likely by such act to cause death commits the offence of culpable homicide.
If a person causes a bodily injury which is likely to cause death or with the knowledge that he is likely to cause death, he commits culpable homicide. This becomes murder if the act is done with the intention of causing death. Intention to cause bodily injury which is sufficient in the ordinary course of nature to cause the death would also come under the offence of murder.
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Mr. Nayantha Wijesundara - practitioner in Appellate Courts |
The punishment is death however, Sri Lanka has not judicially executed a person for the past 45 years.
What is the procedure under the law when an accused of murder is arrested?
When a person is suspected of murder, he is arrested and will be produced in court. Bail can be given only by the High Court
What is attempted murder? And the punishment?
The punishment for attempted murder is 10 years and a fine. In the event the person was hurt, the punishment would extend to 20 years depending on the seriousness of the wound.
Attempted murder is when the defendant has attempted to kill the victim but the attempt was not successful. When a person aims a gun at a person but he misses the shot, this will amount to a crime of attempted murder.
If a third person destroys evidence of a murder committed by a friend is that a crime?
It amounts to a crime because you are obstructing justice.
When a group of people plan to commit murder, will all of them be liable for the murder? What happens when all of them did not commit the murder but were only present?
If two or more people plan to commit murder, that would be a conspiracy to murder. If a gang of robbers go to a bank and they over power the security guard and in the process one person stabs him, everyone who shares a common murderous intention will be liable.
In the case is AG v PottaNaufer, the murder was orchestrated by a person in prison and implemented by individuals out of prison. There was evidence to prove that the orchestration took place over a phone call. Those who participated in conspiring the murder were held liable for committing the murder.
The law looks at the intention of the parties. If a group of people organise themselves in a manner where one person keeps watch from a top of a tree, while another kidnaps the victim and two others hold the victim for the murderer to stab the victim; everyone involved will be equally liable and be punished by law. The law looks at “active participation”.
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Thirukumaran Vishvalingam - Notary Public and Commissioner of oaths |
It is not the same, there is a difference in the end result.
S. 310 of the Penal Code lays out that “whoever causes bodily pain, disease, or infirmity to any person is said to ‘cause hurt’”.
S.311 states, emasculation, permanent privation or impairment of the sight of either eye, permanent privation or impairment of the hearing of either ear, privation of any joint, destruction or permanent impairment of powers of any member or joint, permanent disfiguration of the head or face, cut or fracture of bone, cartilage or tooth or dislocation or subluxation of bone, joint or tooth, any injury, which endangers life or in consequence of which an operation involving the opening of the thoracic, abdominal or cranial cavities is performed; any injury which causes the sufferer to be in severe body pain or unable to follow his ordinary pursuits for 20 days’, amounts to “grievous hurt”.
When there is a threat to your body, or someone else’s body or your own property, will acting in self-defense amount to an offence of murder?
In exercise of your private defense you can cause death but there are limitations; if there was sufficient time to go to the authorities then you cannot exercise your right of private defense. Similarly you cannot cause more harm than is necessary, you are permitted to use force only to the extent to what is needed to defend yourself. If you exceed the right of private defense it will amount to culpable homicide not amounting to murder.
What steps can a person take if they witness a murder?
There is tendency to miss important information due to the shock you will experience.Make a note of all the details you saw at the scene of the murder. Provide all this information to the police as soon as possible
How does the legal framework protect an eyewitness for murder?
The Victim and Witness Protection Act sets out rights for protection. If there is a threat to you, you can seek assistance from the police or the Victim and Witness Authority
What is an Alibi and how important is it in a murder trial?
An alibi is when a person says that he was not there at the scene of the crime but elsewhere. This excludes the possibility of the person being able to commit the crime.
How does the law look at a situation where a child or teenager commits murder? In the event when an adult uses a child to murder someone without the child knowing how will the law look at such a situation?
If a child is less than the statutory age limit there is no liability. Children above 12 to 18 are liable but in respect of murder a child cannot be sentenced to a death sentence. Where an adult uses a child, the adult will be guilty of the offence and not the child.
Can the family of the victim claim compensation, do they have to file a civil case?
Yes they have to file a civil case. A crime is a wrong against society.
Murder cases attract a lot of media attention and often the accused is judged to be guilty before the court pronounces the judgment. What happens here?
The media and social media often report what is visible to the naked eye. The Court looks at whether the accused has acted within the law and whether it had been proven beyond reasonable doubt that this person is guilty of murder. It is a human tendency to judge something at first instance but this does not happen in the Court of law.
The complete discussion is available on our YouTube channel ‘Law Students Association of Sri Lanka’, in all three languages.
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