. The English case of R v Blaue serves to illustrate
this point. There, a Jehovah's witness, pursuant to her religious beliefs,
refused a blood transfusion which would almost certainly have saved her
life. The jury might on such facts conclude that her death was reasonably
foreseeable as a consequence of the vicious assault, even if it was not
reasonably foreseeable that she would refuse a blood transfusion. In cases
where the jury decides that the accident excuse does negate homicide liability,
it would be possible to convict of other offences. If the offender was
particularly culpable, these include attempted murder and wounding or doing
grievous bodily harm with intent. These offences carry high maxima and
already cater for very serious offenders, including those who escape homicide
liability because the victim narrowly survives a brutal assault.
The second situation is where the defendant is less culpable - for
example, where a "moderate punch" 22 causes death because of the victim's
susceptibility but the defendant did not intend to kill or do serious injury.
Under the traditional view this would not constitute wilful murder and almost
certainly not any species of murder.23 However, in the absence of another
excuse such as self-defence, it would be manslaughter; the accident excuse
would be inapplicable and the Crown would not need to prove that the
defendant intended or foresaw the result, or even that helshe was grossly
negligent. To impose liability for the serious offence of manslaughter in
this way is to suspend normal principles of criminal responsibility in favour
of the draconian view that the offender must take all the consequences which
flow from hislher acts.24 The alternative of putting the foreseeability test to
the jury is more just. It also accords with the law in Germany where, after
much sophisticated debate, it was considered unjust to hold that the defendant
always takes the victim as found. There, legislation now requires that the
ultimate harm be foreseeable at the time of the act.25
