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A-G Reference (No. 3 of 1994) [1997]

Facts

  • The defendant stabbed his girlfriend, who was 24 weeks pregnant
  • Fewer than 3 weeks’ later, the girlfriend gave birth severely prematurely due to the stabbing
  • Although the girlfriend healed, as a result of prematurity, the baby died 121 days after its birth

Issue

  • Could the defendant cause the death of the baby?

Decision

  • Yes

Reasoning

  • An embryo is not an integral part of its mother
  • A child cannot be killed until it has lived outside of its mother
  • Transferred malice is outdated, therefore the defendant did not murder the baby
  • The defendant, subject to proof by prosecution, could cause the death of the baby by way of unlawful act manslaughter; the unlawful act need not be aimed at the final victim
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