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.