Accident - Lecture notes 7 PDF

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Summary

Accident The usage of the term will render absent the particular subjective mental state such as intention or knowledge which constitute the fault element of these offences. Section 80 is also inappropriate as a defence to offences under 304A as the defence itself requires the accused to have exerci...

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Accident The usage of the term “accident” will render absent the particular subjective mental state such as intention or knowledge which constitute the fault element of these offences. Section 80 is also inappropriate as a defence to offences under 304A as the defence itself requires the accused to have exercised care and caution. Element of Accident    

The alleged offence was the result of an accident or misfortune. The act giving arise to the accident was done with criminal intention or knowledge The act was lawful and was performed in a lawful manner by lawful means The act was done with proper care and caution.

Accident or Misfortune In the case of R v Ong Choon, the court provides the definition of accident as follow: An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it, and when it occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it. (The consequence must be not reasonably foreseeable) In the case of Kaporonovski v R, the high court of Australia has interpreted the word “Accident” as follow: An event occurs by accident if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person. In the case of R v Ong Choon, the facts were that Defendant had gripped Victim’s hand which held a knife that he was trying to stab defendant with it. Defendant suddenly released his grip, resulting in victim stabbing himself in the neck. The court held that the neck wound “was hardly to be expected as a consequence” of defendant act of suddenly releasing his grip. The court held that the defence of section 80 was succeeded as the defendant had exercised proper care and caution because of the effect of his conduct on victim was not reasonably foreseeable. Without Criminal Intention or knowledge Criminal intention or knowledge was defined as the purpose or design of doing an act forbidden by the criminal law without just cause or excuse. Section 80 defence does not operate to negate the fault element of offence.

Lawful act in a lawful manner by lawful means Any act is lawful which has not been made illegal by the general law of land. In the case of R v Ong Choon, the facts were that Defendant had gripped Victim’s hand which held a knife that he was trying to stab defendant with it. Defendant suddenly released his grip, resulting in victim stabbing himself in the neck. The court held that section 80 was applicable. Although the fight between defendant and victim was unlawful, the accident had occurred while defendant was doing the lawful act of trying to end the fight by disengaging himself. In the case of Kong Poh Ing v Public Prosecutor, the defendant had informed the victim that she intended to commit suicide and showed victim knife. Defendant hugged victim and told her not to go ahead with the suicide, and tried to wrench the knife from her. In doing so, the victim lost his balance and accidentally fell onto the knife. The court held that section 80 was applicable since defendant had been performing the lawful act of showing the victim the knife. It would have been different if defendant was actually attempting to commit suicide when victim intervened since attempted suicide is an offence under section 309 of Penal Code. In the case of Public Prosecutor v Tan Chor Jin, the defendant was charged with the offence under Arms Offences Act of using a firearm with the intent to cause physical injury. The court rejected defendant’s claim to have discharged his pistol accidentally on the ground that he was in the process of committing robbery at the time which was clearly an unlawful act. Furthermore, victim who was shot dead had been exercising his right of private defence against defendant so that it was unlawful for defendant to have pointed his gun at victim. Proper care and caution To succeed section 80, the accused must prove that he or she had exercised “proper care and caution” in doing the act which gave rise to accident. In other words, section 80 demands the accident not to be caused by the negligence of accused. The law only requires reasonable precautions to be taken. In the case of R v Ong Choon, the utmost care would have required defendant to warn victim that he was going to release his grip on victim’s hand. That would not have been a reasonable precaution for defendant to take since victim would have been alerted to this eventuality and prepared himself to stab when defendant released his grip. General cases In the case of La Ode Ardi Rasila v Public Prosecutor, the appellant was working as a security guard at the AmBank. He had discharged a pump gun that he was carrying, which had caused the death the deceased. The cause of the death was ‘gunshot wound to the head’. After shooting at the deceased, the appellant had emptied the money in vault before fleeing the scene. The appellant was charged with the offence of murder under s 302 of the Penal Code. In defence, the appellant relied on the section 80 to argue it was a mechanical defect

that had caused the gun to fire by itself. The court held that there was nothing accidental about the shooting in that it was clearly an intentional act as the appellant had set the safety lever of the gun to ‘fire’ position before he carried out the robbery. Further, at the time of the purported accidental discharge, the appellant was not doing a lawful act in a lawful manner, by lawful means and with proper care and caution. The appellant could not therefore avail himself of the statutory defence In the case of Abdul Aziz bin Miew Yiong v Public Prosecutor, the appellant was charged with offence under s 302 of the Penal Code for murdering 2 persons. The fatal injuries inflicted on the two deceased were confirmed to be gunshot wounds fired at close range. In defence, the appellant admitted causing the deceased's death but claimed that it was an accident. The court held that by his own admission the appellant cocked the gun to 'fire' position from the “safe” position before the two shots were fired. If indeed he had no intention to use the gun against anyone, he would have kept the safety pin to 'safe' position at all times when he was with the two deceased. That would have prevented an accidental discharge. Besides, the court also held that the appellant’s action of firing two shots at two different individuals at an interval of ten minutes cannot be an accident. In the case of Public Prosecutor v Andal bin Arolla, the accused had attacked the deceased. It was testified that the accused had planned to murder the deceased after the drug transaction by using a Rambo knife. It was also testified that the accused had stabbed the deceased in the neck and chest. The post-mortem indicated that it was the stab wound in the neck that had caused his death. In defence, the accused argued that the injury on the deceased's neck was caused accidentally as he had not intended to stab the deceased and that the knife had pierced the deceased's neck when the car moved forward. The court held that section 80 was not applicable as the plan from the beginning was to kill the deceased and the accused followed through the plan by stabbing the deceased. Clearly therefore the deceased's death was not caused 'without any criminal intention or knowledge, in the doing of a lawful act in a lawful manner, by lawful means, and with proper care and caution'....