Conviction for attempted homicide set aside due to inadequate assessment of exemption from punishment on withdrawal

The defendant was convicted by the Court of Appeal of attempted homicide after pushing a wad of paper down the throat of a two‑year‑old child, preventing the child from breathing. He tried to remove the obstruction but failed, and then asked the child’s mother to call an ambulance. The ambulance arrived promptly, and the wad of paper was removed, allowing the child to survive. The Court of Appeal also convicted him of assault and imposed an aggregate sentence of seven years’ imprisonment. In the District Court, the defendant had been acquitted of attempted homicide on the ground that it had not been proven that he was the person who had pushed in the wad of paper.

The Court of Appeal considered whether the defendant, by asking the child’s mother to call an ambulance, had voluntarily prevented the fatal outcome, such that he could not be convicted of attempted homicide, see section 16 subsection 2 of the Penal Code on voluntary withdrawal. The Court of Appeal nonetheless found that the conditions for voluntary withdrawal were not met. It held that the defendant had no lawful alternatives to seeking help. Had he allowed the child to die, the only way to avoid criminal liability would have been to commit further criminal acts, for example by attempting to influence the child’s mother.

The Supreme Court held that a withdrawal is not voluntary if the perpetrator expected to be discovered. The decisive question is how the individual himself assessed the situation, not the court’s own view of the possibility of escaping detection. The Court of Appeal’s reasoning did not show that it had assessed the defendant’s own understanding of the situation. Nor can a general requirement be upheld that the available alternative must be lawful. The Court of Appeal’s conviction for attempted homicide was therefore set aside.

The judgment provides guidance on the conditions for exemption from punishment on the basis of voluntary withdrawal from an attempt.

Read the judgment from the Supreme Court (in Norwegian only) (PDF)

Area of law: Criminal law, section 16 of the Penal Code

Key paragraphs: 29–32, 34, 38–39

Justices: Bull, Bergsjø, Berglund, Hellerslia, Poulsen