Murder – s.300
In English Law,
the mens rea for murder is foresight. In Malaysia, the Code has provided the
mens rea of intention and knowledge for s.300. In R v Nedrick, the accused wanted to frighten the adult resident by
setting fire in the letterbox but resulted in a fire which killed a child. The
court used the foresight test and convicted the accused for murder.
Time of death
The longer it
takes for the victim to die, the harder it is for the prosecution to prove that
the accused had committed the murder since it gives a bigger time frame for
intervening acts to occur.
Proving intention and knowledge
The prosecution
must prove the physical and fault elements of the offence beyond a reasonable
doubt, and must do so according to the prevailing rules of evidence.
Culpable homicide or murder?
The trier of
fact must determine the fault element by inference from all relevant and
admissible evidence, and taking account of relevant personal characteristics of
the accused. The evidence may include the accused’s evidence in court, what
they said at the time, what they told police and what other witnesses say. It
will also include the nature of the acts themselves; for example, the type of
weapon that was used (if any), the nature, location and number of injuries
inflicted on the victim, and the way the injuries were inflicted.
PP v Mahfar bin Sairan and Ismail bin Hussin v PP as stated above.
Intention
should be distinguished from premeditation. A person can form an intention to
kill on the spur of the moment as shown in Ismail
bin Hussin.
s.300(a) and
s.300(b)
s.300(a) is the
same as the first limb of s.299 (only intention) and s.300(b) encompasses both
intention and knowledge as its mens rea as compared to the 2nd limb
of s.299. S.300(b) is rarely invoked in practice.
s.300(c)
In order to
prove s.300(c), the prosecution has to prove that the accused had only the
intention to cause bodily injury (not death) and the injury that he caused was
intended and the nature of the injury should have been such that it ultimately
resulted in the death of the victim. Therefore, this section could cover a
situation where death did not take place immediately but eventually the victim
dies due to the bodily injury.
Virsa Singh v State of Punjab
The prosecution
must prove the following:
i) It must
establish, quite objectively, that a bodily injury is present
ii) The nature
of the injury must be proved; these are purely objective investigations.
iii) It must be
proved that there was an intention to inflict that particular bodily injury,
that is to say that it was not accidental or unintentional, or that some other
kind of injury was intended...
iv) It must be
proved that the injury of the type just described made up of the three elements
set out above is sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to
do with the intention of the offender.
PP v Visuvanathan
In this case,
the stab wound was very severe and the court held that it was intended and
sufficient in the ordinary course of nature to cause death. All that the
prosecution needed to prove is:
(a) that the
accused did an act which caused the death of the deceased;
(b) that the
said act was done with the intention of causing bodily injury;
(c) that the
injury caused-
i) was intended
and was not accidental or otherwise unintentional and;
ii) was
sufficient in the ordinary course of nature to cause death.
s.300(d)
The mens rea
for this subsection is only knowledge. S.300(d) restricts liability for murder
based on knowledge to cases where there is no ‘excuse for incurring the risk of
causing death’.
Emperor v Dhirajia
The accused was
a mother, frequently abused by her husband. One night, she heard footsteps
behind her, panicked and jumped down a well with her baby resulting in the
baby’s death. She was charged for murder but the court allowed her appeal
because she had an ‘excuse’ for jumping into the well.
