Criminal law I final update

S.304A

            If the prosecution does not have evidence to prove beyond reasonable doubt that the accused had acted intentionally or with knowledge when causing the death of another, s.300 and s.299 cannot be invoked. The alternative section is s.304A where the prosecution has to prove that the accused had acted rashly or negligently. As a result of his act, death has taken place. This section can be invoked when death is caused under various circumstances.

            In deciding whether the accused had acted rashly, the courts must look at all surrounding evidence. In a nutshell, it can be said that if the accused had realized that his act was serious or risky (decided in Balakrishnan) or if the accused was conscious of the illegal consequences that may follow, or he was aware that some kind of mischievous acts may result, then according to Nidamarti, the courts will find that the accused had acted rashly because he had taken the risk knowing of the consequences.

            A person is said to have acted rashly, if they knew of the risk, but they still took it, but with the hope that they will not occur.

            The maximum penalty for s.304A in Malaysia is 2 years imprisonment, whether convicted under rashness or negligence. However, in Singapore, the maximum penalty for causing death by rashness has increased to five years, with the maximum for negligence-based offences remaining at 2 years.

PP v Tiyatun

The accused persons in this case was convicted under s.304A for the ‘force feeding’ of their child.

Lim Hong Eng v PP

Rashness implies a disregard to the possibility of injury or death. It means that the accused having recognized a risk chooses to run that risk anyway.

            Rashness, like intention, will often be a matter of inference from the facts. If a risk is obvious and serious, the court may find it easy to infer that the accused recognized the risk, even if he or she claims ignorance.

Balakrishnan S v PP

The appellants were the commanding officer and supervising officer of a Prisoner of War training course. One soldier died and another was seriously injured as a result of being dunked four times, around 20 seconds each, in a tub containing water. The appellant claimed that he did not realize that such dunking was dangerous. The Court of course did not accept such reason.

S.321 and s.322

            If the facts state that the victim was injured, two sections can be invoked, s.321 and s.322. In order to successfully raise s.321, the nature of the injury should fall within s.319. This section causes a wide range of injuries which includes bodily pain, disease or infirmity.

            In Jashanmal, mental anguish was also considered as hurt within the meaning of s.319. If the prosecution proves that the actus reus of the accused falls within s.319, it has to further prove that the accused caused such an injury voluntarily, s.39. If the facts show that the nature of the injury is serious, severe or grievous, a more appropriate section would be s.322. S.320 defines certain types of injuries as grievous hurt. However, any kind of hurt which endangers or threatens the victim’s life could be considered grievous under s.320(h).

            The mens rea for both sections, s.321 and s.322, is the same (s.39). Therefore, the prosecution has to prove that the accused either had the intention to cause such an injury or had the knowledge that his actions could cause such an injury or he had a reason to believe (s.26) that his action will cause such an injury.

            S.95 is a defence that has been successfully pleaded in the case of Teo Geok Fong. In order to successfully plead this defence, the harm inflicted must be slight. Therefore, it cannot serve as a defence if the accused is charged under s.322. Additionally, the hurt must be of such a minor nature that it can be proven that a person of ordinary sense and temper would not complain.

Defences (ss. 76 – 90)

            The accused will raise defences as a legal justification so that the courts could excuse him for committing the crime that he’s being charged with. Some of these defences completely excuse the accused. On the other hand, some of these defences allow the charge to be reduced.

            The defence of mistake is recognized under 2 sections, i.e. s.76 and s.79. To plead the defence of mistake under both these sections, the mistake must be a mistake of fact and not a mistake of law. Both these sections are very similar because the defendant must have honestly believed in the mistake.

            However, there is 1 difference. Under s.76, the accused can plead the mistake of fact if he honestly believed that he was bound by law to do the act. Under s.79, however, the accused must have honestly believed that he was justified by law to do the act.

            A mistake of fact is an error as to the existence of any state of things. It could be made due to inadequate or wrong information. A case in point is Chirangi v State of Nagpur. Here the accused mistakenly believed that he was shooting a tiger when he actually shot his son.

            S.80 allows the accused to plead the defence of accident provided certain conditions are fulfilled. The act done must have been a lawful act and it must have been done in a lawful manner and it must have been done with proper care and caution. In addition to these elements, the defence must also prove that the accident took place without any criminal intention or knowledge.

            In Koh Poh Ing’s case, the accused was charged for causing the death of the boyfriend because he was accidentally stabbed in the stomach while he tried to remove a knife from the accused who was contemplating suicide. Accident was allowed to be pleaded.

            S.82 and s.83 prima facie prevent children from facing criminal sanctions. S.82 encompasses the Latin concept ‘Doli Incapax’. This section stipulates that a child below the age of 10 cannot be punished for any criminal offence. In order to plead this section, the child must have been below the age of 10 at the time the offence took place (irrebuttable presumption).

            S.83 excludes criminal liability of children if they are between the age of 10 and 12. In order to prove beyond reasonable doubt that the child had sufficient maturity and understanding, the surrounding facts of the case must be analysed. If the facts show that the child had hidden the murder weapon or had told lies during questioning so that he will not implicate himself, such facts suggest that the child had sufficient maturity to understand what he did was wrong.

            S.84 recognises the defence of insanity and it is governed by the M’Naghten Rules. In order to successfully plead this defence, several elements must be established. The accused was said to be suffering from unsoundness of the mind (which may be temporary or permanent) at the time he carried out the wrongful act. Unsoundness of the mind is wider than the ‘disease of the mind’ and this unsoundness of the mind must have been of such a nature or severity that it prevented the accused from knowing the nature of his wrongful act or the unsoundness of the mind prevented him from knowing what he did was wrong or against the law.

            A case in point is Jusoh v PP. Unsoundness of the mind in simple terms refers to mental malfunctioning. S.84 only allows the person to plead the defence if the mental malfunctioning is so severe that the accused is completely incapable of knowing what he did or, if he knew, his mental malfunction prevented him from knowing what he did was against the law.

            In PP v Rozman, the court did not allow the accused to plead the defence under s.84 because the court was of the opinion that subnormal intellect was not equivalent to an unsound mind. In Sinnasamy, the court held that irresistible impulse is not the same as an act done with an unsound mind.

            S.90 recognises the defence of consent. However, s.90 clearly stipulated that if the consent was given under s.90(a), (b), and (c), such a consent will not amount to a defence. The defence of consent is recognized and common in sport activities. Normally the consent given will be subjected to terms and conditions. If these terms and conditions are breached, then the offender cannot rely on the defence of consent. Similarly, the consent given may be invalidated if it falls under s.90(a), (b) or (c).

            The Penal Code recognizes intoxication under 2 subsections. The first form of intoxication is considered as involuntary intoxication. Merely been intoxicated prima facie will not be a defence unless the accused due to being intoxicated did not know that his act or omission was wrong or the intoxication prevented him from knowing what he was doing or what he failed to do.

            In order to plead this defence [s.85(2)(a)] successfully, the accused has to prove the following:

 The intoxication was carried out by a third party who did it maliciously or negligently and it was done WITHOUT consent. If consent was given then the defence can argue that the given consent is invalid due to s.90. If all these elements are established then the accused may be acquitted for the offence that he committed.

            S.85(2)(b) recognizes intoxication but it does not stipulate how the accused became intoxicated. The law recognizes this as a defence where it has prevented the accused from forming the intention. Some academics consider this type of intoxication as insane intoxication. Similar to s.85(2)(a), the level of intoxication must have been so great that it prevented the accused from forming the intention.

DPP v Beard – the appellant whilst intoxicated raped a 13 year old girl. She died of suffocation because the appellant put his hand over her mouth to prevent her from screaming.

            When the accused pleads the defence of intoxication under s.85, the outcome or the effect of pleading this defence is recognized under s.86(1). S.86(1) explains 2 effects:

1) If the accused successfully pleads s.85(2)(a), he will be completely acquitted.

2) Those who plead voluntary intoxication under s.85(2)(b) will be treated in the same way as if he pleaded the defence of unsound mind under s.84 whereby s.347 and s.348 of the CPC will authorize how such people will be dealt with. It is as though they have successfully pleaded under insanity (s.84).

Provocation

            S.300 has recognized certain defences whereby if successfully pleaded it will reduce murder to culpable homicide. One of it is the defence of provocation recognized under Exception 1 of s.300.

            In order to plead the defence of provocation, certain conditions must be satisfied:

1. The provocative conduct could be something said or something done and it must have been so grave that it caused the accused to lose self-control. The courts have not defined the meaning of grave but have considered the nature and the characteristics of the accused. In PP v Kwan Cin Cheng, the accused killed his girlfriend because of the comments made by her. The court recognized the emotional state of the accused and therefore allowed him to plead the defence of provocation.

            However, in another case, PP v Juminem, the accused was a domestic helper who killed her employer. In this case, the court held that the employer provoked her but the provocation was not considered to be grave. Besides establishing this, courts can only accept this defence if the provocative act or words were done by the victim and not by the third party.

2. Besides establishing these elements, the defence has to also show that the provocation was sudden. There is no clearly defined time-frame where courts have said that defence counsels must satisfy. However, if there is a delay between the provocative act and the death caused, it is logical for the prosecution to argue that the provocation was not sudden and the accused had time to cool off and planned or premeditated the killing.

P.S: Not all the time courts allow the defence of provocation as the accused could have chosen to react or leave the scene.

Nanavati’s case

- The fatal blow should be clearly traced to the influence of passion arising from the provocation and not after passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.

T Paramasparan Thanigajalam v PP [2012] 4 CLJ 309, the accused injured his wife 64 times which in its totality killed her. Accused tried to plead that the wife's confession of infidelity provoked him to kill her. Court rejected the defence.

                                         

Private Defences

s. 96 – right of private defence,

s.97 – defend oneself or another,

 s.99 – when right of private defence is not available

s.100 – right to private defence of s.97(a) extends to causing death

s.102 – commencement and continuance of s.97(a)

s.103 – when right of s.97(b) [property] extends to causing death

s.105 – commencement and continuance of s.97(b)

            S.96 recognises the right of private defence (to defend oneself or another). This right is recognized under s.97(a) and s.102 clearly stipulates that this right can only be exercised if the accused apprehended a reasonable apprehension of fear or danger (RAF). In a situation where death takes place because the accused protected himself or another, the accused will not be charged for causing death if he had used this right according to s.99. Therefore, s.100 excuses the accused if he’s accused of murder or culpable homicide or other offences.

PP v Dato’ Balwant Singh

- The accused in this case was in a car and he had a verbal quarrel with another person, a motorist. The motorist followed his car and took a stick wanting to injure the accused. The accused in many instances asked the motorist not to bother him but to no avail. Eventually the accused shot the motorist twice and the latter died. The issue was whether the accused could rely on the right to private defence. The prosecution tried to argue that the shooting constituted too much force. The Court allowed the accused to rely on s.100 to excuse himself of the criminal offence after looking at all of the evidences and the circumstances in the case.

            S.97(b) provides the right to defend one’s property. The accused is only allowed to exercise this right when he experiences reasonable apprehension of danger or fear to the property. This is recognized under s.105. The law will excuse the accused for causing death under s.103 if it can be shown that this right did not infringe s.99.

            Both these rights are subject to the conditions stipulated under s.99. Therefore, the accused cannot rely on the right of private defence if he acted when there was no fear, or when he used too much force or when he was using force that was not justified. In essence, the defence counsel will raise s.97, s.100, s.102 and s.103 and s.105 on the balance of probabilities and the prosecution will attempt to invoke s.99 with the purpose of showing that the accused should not rely on this defence.

Tutorial Guidelines

S.95

1. Critically evaluate the accuracy of this statement.

Section 95 of the Penal Code serves no purpose. It should therefore be removed.   (may not be correct)

            S.95 of the Penal Code provides a complete defence whereby it legally excuses the offender for causing harm of such a nature that a person of ordinary sense and temper would not complain. This section only excuses the offender if the harm was said to be slight. S.44 clearly stipulates that an injury caused illegally to any person, in body, mind, reputation or property would still be considered as harm. In essence, s.95 recognises the harm caused by the defendant but excuses him primarily because the injury caused was so minor that the person of ordinary sense and temper considers it to be so minor that he does not complain.

            S.95 has been raised in several cases. In Veeda Menezes v Yusuf Khan, the complainant suffered a small cut when a paper file was thrown during an argument involving 4 people. The accused intended to cause such hurt but he was still acquitted under s.95. This shows that s.95 has been used to completely excuse the offender since the cut caused is so slight that the person of ordinary sense and temper would not complain.

            Similarly in Teo Geok Fong v Lim Eng Hock, the accused was acquitted under s.95. In this case, the accused slapped her husband’s face. There were no marks on his face and he did not seek medical attention. S.95 was able to be applied as the victim did not seek medical treatment, showing that the harm caused by the accused was of a nature that a person of ordinary sense and temper would not complain.

            However, what is slight harm is not defined in the statute thus case law has to be resorted to. In Manzoor Ahmad v State of Allahabad, the accused gave a 15 year old boy a glass of milk containing copper sulphate, saying it was to cure headaches. The boy suffered diarrhoea and vomiting. The accused could not rely on s.95. This indicates that the harm caused was actually serious as it has failed to be considered ‘slight’ under s.95. The court here has drawn a boundary between a slight harm and a serious one.

            Furthermore, in Lim Hean Nerng v Lim Ee Choo, the accused punched a 70 year old man in the face and some ‘tenderness’ but no bruising had resulted. The court held that s.95 was not available to the accused. The implication is that the harm caused was not considered slight by the courts taking into account the physical condition of the accused. Additionally, the judgement is in line with the courts stand to not condone domestic violence.

            Based on the cases raised and discussed above, s.95 of the Penal Code definitely serves some purpose in excusing persons who have caused harm so slight that a person of ordinary sense and temper would not complain. However, s.95 is not clear since it is silent as to what constitutes slight harm. The extent of the applicability of s.95 is unclear, thus the section should be amended to expressly specify what constitutes slight harm.

Guidelines to Answering Problematic Questions [Question 1]

1) Read the facts properly and identify the wrongful act that took place

(a) death                                                          (b)Hurt or Grievous Bodily Hurt

Based on the fact that the victim had died, the prosecution could raise s.300 or s.299 or s.304A.

However, the fact states that she shot the victim 3 times knowing that he is a human being, it is likely that the prosecution could raise s.300(a).

2) In order to obtain a successful conviction under s.300(a), the prosecution has to prove the ingredients of this section beyond reasonable doubt (DPP v Woolmington).

3) S.33 states that the AR can be a positive act. Accordingly, Yeta has carried out a positive act by shooting the victim 3 times.

4) Besides proving the AR, the prosecution has to prove the MR of s.300(a) where it has to prove that Yeta had the intention to cause death when she shot the victim 3 times.

Cite 2 or 3 relevant cases and apply

Bhagwant Appaji v Kedari Kashinath, Tan Buck Tee v PP, Ismail bin Hussin v PP

Apply the cases and mention that Yeta had the intention to cause death.

5) Having established the AR and MR of s.300(a), prima facie Yeta could be convicted under s.302 of the PC.

6) However, based on the facts, Yeta could rely on several defences so that she is not punished under s.302.

7. Based on the facts that the victim died due to the wrong treatment, she could argue that it was not her shooting that caused his death. Courts have decided several cases pertaining to similar issues.

Courts in deciding cases such as R v Smith, R v Malcherek and Steel, and R v Blaue, have held that despite the intervening acts, it was the initial wounds which have caused the death of the victims. Therefore, it is very likely that Yeta could still be responsible for his death.

However, in R v Jordan, the court held that the intervening act broke the chain of causation which would mean that Yeta is not liable under s.300(a). She could be charged for causing grievous bodily hurt under s.322 or attempting to cause death under s.511.

8) Alternatively, Yeta could argue that she did not intend to kill her husband. In R v Latimer, where the facts were very similar to the present case, the courts held that if the wrongful act was carried out with the requisite mens rea, the defendant will be found guilty even if the victim was an unintended individual. The law is not concerned with who you kill.

9) Since the facts show that she shot her husband mistakenly, i.e. she mistook him for Badman, she could raise the defence of mistake found under s.76 and s.79. Under such circumstances, she would have to prove on a balance of probabilities that she was bound to shoot her husband or she was justified in shooting her husband respectively.

10) Finally, Yeta could raise the defence of accident under s.80. She should not have had the criminal intention to kill. Killing is not a lawful act. She did not exercise proper care and caution. Therefore, she may not rely on this defence.

Conclusion: Yeta is likely to be convicted under s.302 for causing death under s.300(a) since the defences may not be available unless she can prove that the chain of causation is broken where her conviction will be reduced to GBH under s.322 or attempting to cause death under s.511.

Importance of causation (summary of model answer)

            In order to establish an offence, the prosecution must prove that the defendant had committed the actus reus of that offence. S.33 clearly states that the actus reus could be a single act or a series of acts. Additionally, the section states that such acts could either be positive acts or omissions. Causation is a concept that relates to the actus reus of that offence. Courts referred to this concept only when an intervening act had accelerated the death of the victim after the defendant had injured the victim. Thus, causation is only of importance when an intervening act coupled with the actus reus of the defendant had caused the death of the victim.

            This concept is important because it assists the courts to determine whether the defendant who caused the injury or the person who caused the intervening act should bear the legal responsibility of causing death to the victim. In cases such as R v Smith, and R v  Malcherek and Steel, the courts have established, determined or decided that the persons who caused the initial wound will be legally responsible for the death of the victims despite the fact that there were other acts that contributed to the death of the victims. In deciding the causal link, the courts applied the ‘but for’ test and found that in all these cases the chain of causation was not broken. Thus, it was possible for the courts to decide the criminal responsibility of those who caused the death and the criminal responsibility of those who caused the intervening act.

            Besides that, this concept allows the accused to reduce his criminal liability by relying on an event that took place after he committed the actus reus or initial act. In R v Jordan for instance, although the defendant had stabbed the victim during a fight, he successfully relied on the intervening act (incorrect medical treatment) primarily to argue that he was legally not responsible for the death of the victim. Although this case was criticized, it shows that it is possible for the accused to reduce or evade his criminal liability by proving on a balance of probabilities that the death was caused by some other event.

            This concept is also important because it opens doors or creates opportunities for defendants to rely on any other factor so that their punishment is reduced. [Discuss R v Blaue, R v Pagett, R v Halliday] In all these cases, it is shown that courts are prepared to consider different types of acts as intervening acts. However, courts have strictly refused to accept such justifications that could absolve the defendant from his liability.

            Malaysian law too recognizes this concept of common law but has provided statutory solutions that courts could rely on when faced with such legal dilemma. Under Malaysian law, if the courts are confused as to who should bear the criminal responsibility under such circumstances, reference should be made to Explanation 1 and 2 of s.299. In essence these explanations clearly state that the chain cannot be broken despite the presence of an intervening act. Thus, it can be said that the concept is of importance and these Explanations provide guidelines to courts so that the link between the death and the defendant can be made.

CONCLUSION:

Cont: s.300 murder

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 2^nd 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.

Criminal Law

Criminal Law Notes

Omission

            The Actus Reus can either be a positive act or an omission. The facts normally indicate if the accused had carried out a physical act (positive act) or he had merely failed to act (negative act). If the accused had failed to act, s.33 recognises his failure to act as an omission and s.43 clearly stipulates that omissions can sometimes be illegal.

            General principles of criminal law do not per se impute criminal liability on those who failed to act unless the facts clearly state that they had a duty to act. English case law has identified several instances where duty can be imposed.

            The first instance is where a statute (e.g. Police Act) imposes a duty. S.19 of the Police Act imposes duty to a police officer to act. A failure to act will amount to a breach of duty and this breach could be an omission under s.33 and s.43. In D’Souza v Pashupati Nath Sarkar [1968] Cri LJ 405, a ship captain had done nothing to remove a member of his crew who had fallen ill and subsequently died. The Court held that his omission had breached s.190 of the Merchant Shipping Act.

            The second instance is under contract law. In R v Pittwood [1902] TLR 37, the accused was a gatekeeper and he failed to close the railway gate. His failure to act made him accountable to the death of the victim.

            In R v Stone and Dobinson [1977] QB 354 and in R v Instan (1893) QB 450, the courts held that assuming responsibility imposes duty on those who accept such responsibility. A failure to act in these cases caused them to be criminally liable for the death of the victims.

            In R v Gibbins and Proctor (1918) 13 Cr App R 134, the court held that duty can be imposed due to relationship and in this case, the parents’ failure to care for the child made them criminally responsible for the death of the child.

            In R v Miller [1983] 2 AC 161, it was established that a duty is imposed on those who cause danger. A failure on their part to take reasonable measures to mitigate the danger is an illegal omission.

Causation

            Causation is an issue if intervening acts caused by others take place after the accused has caused the injury or has carried out the wrongful act.

            In instances where there have been intervening acts which has accelerated the death of the victim, the courts would have to apply tests to determine if the chain of causation is broken. The prosecution would prove that despite the intervening at the chain of causation is not broken. The defence however, would attempt to prove that it was the intervening act that caused the death of the victim.

‘But for’ test

            These tests are used to determine the criminal culpability of the accused. The most common test is the ‘but for’ test. The general rule was established in R v Smith [1959] 2 QB 35. In this case, it was established that generally intervening acts cannot break the chain of causation. The principle in R v Smith was applied in Shaiful Edham bin Adam v PP [1999] 1 SLR(R) 442.

            In R v Blaue (1975) 61 Cr App R 271, the young victim was stabbed by the appellant and the victim was sent to the hospital. Due to her religious belief, the parents refused blood transfusion. The appellant argued that the refusal of blood transfusion was unreasonable and it broke the chain of causation. The courts however applied the principle of R v Smith and held the appellant legally responsible for the death.

            In R v Malcherek and Steel [1981] 2 All ER, it was argued that the disconnecting of the life support equipment broke the chain of causation. However, the court rejected the argument.

            In R v Jordan (1956) 40 Cr App R 152, the courts held that the incorrect medical treatment broke the chain of causation. The victim was stabbed and given antibiotics but the victim was actually allergic to the antibiotics.

            In R v Halliday (1889) 61 LT 701, the husband argued that if the wife had not jumped out of the window she would have survived. The courts refused to accept this argument and held that the chain of causation was not broken. From this case it was established that if the victim reacts or responds to the accused’s wrongful acts and death is caused due to the victim’s own actions, courts have still considered the chain of causation not broken.

Doctrine of Transferred Malice

            Once the prosecution has established that the accused has committed the wrongful act and possessed the requisite mens rea, in essence it can be said that the person could be charged of the said offence. However, in limited circumstances, it is likely that the accused may argue that the injury or death was not caused to the intended victim.

            Using the doctrine of transferred malice, it allows the prosecution to charge the accused even if an innocent victim suffered the ill consequences caused by the accused. This doctrine simply means that if someone else was that victim, that will not exclude the accused for his criminal liability.

Simplified: If a person by mistake causes the death of another other than the person whom he intended to kill, according to the doctrine, the mens rea can be transferred provided that the actus reus and the mens rea is of the same offence.

            In R v Latimer, the court recognized the doctrine of transferred malice and convicted the accused although the victim was an innocent bystander (unintended victim).

            In R v Pembliton, the doctrine could not be applied because the mens rea was to cause injury.

MENS REA

The primary terms used to describe the fault element of offences under the Penal Code are ‘intention’, ‘knowledge’, reason to believe’, ‘voluntarily’, rashness’ and ‘negligence’.

Intention

- s.300(a)-(c) of Penal Code (murder)

            Its definition is not defined in the Penal Code. Case law has to be resorted. In Bhagwant Appaji v Kedari Kashinath, intent means that it implies aim and connotes the one object for which the effort is made. It has been held in Ram Kumar v State that intention denotes a purposeful doing of a thing to achieve a particular end.

            In Yap Sing Hock v PP, it was said that a man intends to commit the offence if he has foresight that his conduct will lead to the commission of the offence and he desires the commission of such offence. In Daniel Vijay s/o Katherasan v PP, it was said that he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them.

            Intention should not be confused with motive. Motive may be useful in identifying suspects in a crime but it does not constitute intention. Although it is correct to define intention as purposive or goal orientated, that alone is too restrictive. It is submitted that intention should be extended slightly to cover cases where the accused knew that his or her conduct would, in the ordinary course of events, be absolutely certain to produce a result.

Knowledge

-s.300(d) and s.299 of Penal Code

            Knowledge is not defined in the Penal Code. In Jai Prakash v State, the Indian Supreme Court defined knowledge as signifying ‘a state of mental realization with the bare state of conscious awareness of certain facts in which the human mind remains simple and inactive’. Knowledge denotes awareness of certain facts with absolute conviction or certainty as to their existence.

Reason to Believe

-s.411 and s.412 (handling of stolen goods)

            It is defined under s.26 of the Penal Code to mean ‘A person is said to have reason to believe a thing, if he has sufficient cause to believe that thing, but not otherwise’. The concept is partly subjective and partly objective. The objective test is to see whether a reasonable man would have reason to believe that thing. The subjective test is to look at the accused’s actual knowledge or expertise to see whether a person in his position would have reason to believe that thing.

Voluntariness

- s.322 of the Penal Code (causing grievous bodily hurt)

            It is defined in s.39 as follows: ‘A person is said to cause an effect voluntarily when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.’ There are 3 elements of voluntariness, i.e. intention, knowledge and reason to believe. To prove voluntariness, fulfilling any one of the elements is sufficient.

Rashness

- s. 304A of the Penal Code (causing death by negligence)

            There is a material difference between rashness and negligence. Criminal blameworthiness for negligence is premised on an objective standard of conduct whereas, for rashness, it is the accused’s actual knowledge of the risk of harm produced by his or her conduct.

            In re Nidamarti Nagabhushanam, ‘culpable rashness is acting with the consciousness that mischievous and illegal consequences may follow, but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening’. It was held in Empress v Idu Beg that ‘criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused’.

Negligence

-s. 304A of the Penal Code (causing death by negligence)

            The position taken is that negligent conduct is criminally blameworthy since the actor has been inattentive to the danger posed to others by his or her conduct.

            Straight J in Empress v Idu Beg said that ‘criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted’.

            In re Nidamarti Nagabhushanam, ‘culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that, if he had, he would have had the consciousness’.

            In Emperor v Waryam Singh, the accused and his wife went to a cremation ground to perform a magical ritual on the tomb of their child. The victim appeared on the scene and the accused beat him to death thinking it was a ghost. The court acquitted the accused by reason of the defence of mistake of fact under s.79 of the Code.

Coincidence of Actus Reus and Mens Rea

            There is a fundamental principle of criminal law which requires the fault element of a crime to coincide in point of time with the physical elements in order for the accused to be convicted of the crime charged. In Fowler v Padget, Lord Kenyon CJ stated that ‘the intent and the act must both concur to constitute a crime’.

The same transaction approach

            In Thabo Meli v R, the appellants acted under a preconceived plan first to kill V and then make the death look like an accident. They struck V on the head and, believing him to be dead, rolled him over a cliff and faked the scene to resemble an accident. Medical evidence revealed that death was caused by exposure to the elements and not the head wounds. The appellants argued that the concurrence principle had not been met since the blows which were intended to kill did not kill.

            The Privy Council rejected the argument saying: ‘It appears to their Lordships impossible to divide up what was really one transaction in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan and as parts of their plan.

            In Shaiful Edham bin Adam v PP, the appellants had inflicted several wounds on V before disposing what they thought was a corpse into a canal. The autopsy showed that V had died by drowning. The Court paraphrased the judgement in Thabo Meli:

‘A series of distinct acts may in some circumstances be regarded as forming part of a larger transaction; and it will suffice if the accused had the necessary mens rea at some point in the transaction, even if it did not coincide precisely in time with the actus reus, the act which caused death.’

Causation Approach

This approach works by taking into account the operative and substantive cause of death. For example, in Shaiful Edham, the neck wounds would have caused the death over a period of time.      

Moral Congruence Approach

This approach is an advanced form of the same transaction approach as it explains why the series of acts should be regarded as forming the same transaction. It looks at the cause of death through a series of acts which are morally congruent.

            In Muhammad Radi v PP, the D and V went to vacant teachers’ quarters to engage in sex and drug-taking. A quarrel ensued and D delivered several blows to V’s head with a stick. D concealed her body by pushing it into a tight space under the kitchen ledge. The court treated it as one transaction.

            In instances where the defendant had carried out the initial assault (stabbing, hitting, etc) on the victim and the victim does not die immediately but suffers other forms of violence or his death is accelerated by another, it is likely that the defendant will raise 2 legal arguments:

i) The intervening act had broken the chain of causation. To determine if the chain is broken, the courts will use the ‘but-for’ test. The courts in this case will decide or will find the defendant guilty if his original assault was the substantive and operative cause of death.

ii) The principle established in Fowler v Padget that the mens rea and the actus reus must coincide. In determining this element, courts have referred to several cases (Thabo Meli v R, Shaiful Edham v PP) and have concluded that despite the commission of several acts, the courts in general have viewed all these wrongful acts as one transaction and have held that the mens rea need not be formed at the beginning of this transaction. If it is formed anytime during the transaction, the defendant will be held liable and the principle established in Fowler cannot be applied.

Sample Answer for Problem Question

Dashing was sleeping soundly and her boyfriend came into the room with his cigar, she was angry with him for smoking as she was one of those who wanted to protect the environment against pollution. She scolded him for smoking and a quarrel broke out. After sometime she thought that he had left. However, she did not realize that he had gone to the next room to continue smoking “in peace” but he fell into a deep sleep. When he woke up he saw her room on fire. He was too angry with her and walked away. Dashing could not put out the fire, as a result of it she was severely burnt.

Referring to case law and relevant provisions, discuss if the boyfriend can be held criminally liable for the injuries sustained by Dashing.

Answer

            Based on the facts that Dashing was severely injured it is likely that the prosecution could invoke s.322 of the Penal Code. In order to obtain a successful conviction the prosecution has to prove that the boyfriend caused the actus reus of s.322 and possessed the requisite mens rea beyond reasonable doubt as stated in DPP v Woolmington.

            S.33 clearly stipulates that the actus reus of s.322 could either be a positive act or an omission. S.43 further states that in certain instances omissions could be illegal. This is only possible if the defendant had a legal duty to act and had breached this duty.

            Based on R v Miller, a failure to act amounted to an illegal omission. In Miller, the accused caused a fire when he slept with a lighted cigarette. He woke up and saw the fire but he went to sleep in another room. In the present case, the boyfriend caused the fire, saw it, he walked away and failed to act. Lord Diplock in Miller said that whoever creates a dangerous situation has a duty to act on it. Applying Lord Diplock’s judgement, the boyfriend in this case had failed to act upon seeing the fire and his failure is an illegal omission under s.43. If this line of reasoning is accepted, then the actus reus is established.

            Since the prosecution has established the actus reus, the next element to prove is the requisite mens rea.

Homicide (Unlawful killing)

Murder – s.300

Mens rea required is intention (a) – (c) and knowledge (d).

PP v Mahfar bin Sairan

The accused had driven a car which had run over and killed his wife. The Court had to decide what inferences could be drawn from the manner of his driving, evidence as to where the wife had been standing, the nature and extent of her injuries, evidence from witnesses about the surrounding circumstances and other relevant matters.

Ismail bin Hussin v PP

The accused was a Home Guard during the Malayan Emergency. He was convicted of murdering a man named Omar. Since he shot him at close range, there was intention.

Culpable Homicide – s.299

Mens rea required is intention and knowledge. Murder is reduced to culpable homicide if it falls under one of the special exceptions.

Death by Negligence – s.304A

Mens rea required is rashness or negligence, the former of a higher degree.

Infanticide – s.309A

            Only women can be punished for infanticide under s.309B. It reduces the criminal liability of a woman who killed her natural child when the ‘balance of her mind was disturbed’ following childbirth. In Malaysia, the child must be ‘newly born’, there is no fixed limit.

Abortion/Miscarriage – s.312

            To describe a woman as ‘with child’ means that she has conceived and even a short period of pregnancy will suffice. The term ‘quick with child’ refers to the stage, usually sometime around the middle of the pregnancy, when the woman feels some motion from the foetus.

The exception to this is that medical practitioners registered under the Medical Act 1971 is not, in good faith, liable if the continuance of pregnancy would involve risk to the life of the woman.