Chapter 2 MENS REA - mens rea full notes PDF

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MENS REA It is clearly state that the guilty will only warrant to punishment if the doer had the guilty mind at the time of committing the offence. In other words, criminal liability can be imposed when the conduct or the act of the doer brought the harm that is prohibited under the law as well as ...

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MENS REA 

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It is clearly state that the guilty will only warrant to punishment if the doer had the guilty mind at the time of committing the offence. In other words, criminal liability can be imposed when the conduct or the act of the doer brought the harm that is prohibited under the law as well as had the guilty mid when committing the crime. In legal term the guilty mind can be defined as ‘Mens Rea’. Other than proving actus reus of crime or offence, the prosecution needs to prove that there’s mens rea of the accused at the material time of the commission of the crime. Granville William once said that it is a very difficult task to define mens rea. Therefore, the wrong doer will be considered as an innocent individual if the wrong doer does not have the blameworthy or the guilty mind. The punishment is said to be morally wrong and it would be absurd if the law is meant to deter innocent actions. The term mens rea or ‘guilty mind’ is being defined as comprising the mental element of a crime which in turn connotes a subjective state of mind such as intention or knowledge. Each crime requires different mens rea and to ascertain the required mens rea reference must be made to the specific definition of the offence. In certain situation it does not required the fault element to be proven by the law. The person can be held as liable although with the presence of actus reus alone and this is known as strict liability offences. There are a few elements that need to be proven in order to established mens rea such as intention, knowledge, willful blindness, reason to believe, voluntarily, rashness, recklessness and negligence.

ELEMENTS OF MENS REA 1. Intention  In penal code, it does not specifically define the meaning of intention, it is the task for the court to prove this element. Some of the people defined the word intention as desire which mean a consequence that is intended when it is desired to follow as a result of the person’s conduct. Some of the people even defined intention as the purpose or design with which an act is done. The court had tried to determine the meaning and scope of the intention according to the case law. In section 300 of penal code it stated that culpable homicide is murder (a) if the act is done with the intention to cause death (b) the said act was done with intention to cause bodily injury (c) the injury was intended and not accidental or otherwise unintentional and was sufficient in the ordinary course of nature to cause death (d) if the person that commit the act know that bodily injury will likely cause death and still commit such act without any excuse for incurring the risk if causing death or such injury as aforesaid. In section 299 of Penal Code, it stated that whoever caused death or bodily injury by doing an act with the intention or with the knowledge, then the accused is said to have commit the offence of culpable homicide.  In the case of Bhagwant Appaju v Kedari Kashinath, it stated that the word ‘intent’ seems to have the metaphorical allusion to archery and implies aim and thus connotes the one object for which the effort is made. In the case of Mohd Haikal bin Mohd Khatib Saddaly v PP, the Malaysian court of appeal declared that the word intention requires something more than the mere foresight of the consequences. In fact, it is being defined as purpose to do something in order to achieved something in the

particular end. In the case of Ram Kumar v State AIR , the court also held that intention means purposely doing a thing to achieve a particular end.  Furthermore, it is confusing to link intention and desire in this way. The word desire is being defined as an emotional or motivational element that will not present in intention. For example, Zac and Fakhi intended to catch a plane to London but without desiring to go there. Intention also can be defined as purposive or goal oriented. This can be illustrated well in the case of R v Nedrick, the issue is whether the knowledge as to the consequence of his action was equivalent of an intention to cause those consequences. The court then stated that if a man intended to achieve something but at the same time not desiring it to come about or he did not realise that the death or serious harm is cause as a result of his action, then it means he does not have the intention to bring about it. However, if at the material time the man knew that his action would cause death or serious harm to another, then he is said to have the intention to kill or do serious bodily harm even though he don’t have the desire to achieve that result. In this case, the accused had the grudge against the mother, therefore the defendant poured the paraffin through the letter box and set it on fire. However, the child died in the fire and not the mother. The accused then argued that he only had the intention to frighten and not kill the mother. The court then held that the accused is not liable for murder as the defendant didn’t know it will cause death if he set fire to the box. If the accused recognized that the death or serious harm would be virtually certain to result from his act, he intended to kill or do serious harm even if he had no desire for such result.  Although intention is being defined as purposive or goal oriented but that alone is too restrictive. Intention should also cover the cases where the accused knew that their conduct would absolutely produce or cause a result. For example, Fakhi uses an iron pipe to strike at Zac who is sitting behind the steering wheel of a car and subsequently she smashed the windscreen. Although Fakhi intention was to injured Zac but Fakhi should understand that as a result of her action it would cause damage to the property. In the case of Tan Buck Tee v PP, it was found that there were 5 appalling wounds on the deceased body, the wound was penetrated to the heart and liver of the deceased. The court was in the view that the injury is mostly caused by the violent blows with the heavy instrument such as axe or hatchet. The court then held that whoever inflicted these blows must have the intention to kill the person.  To summarise intention, it would connote a determined and designed state of mind. Thus, some of the authors believe that it is an intentional or deliberate act. A volitional act which was duly determined and considered and designed. 2. Knowledge  The supreme court of India has defined knowledge as the state of mental realisation with the bare state of conscious awareness of certain facts. Which mean the person is conscious and also aware of the consequences. In the case of Goundan v Emperor, the Privy Council stated that knowledge as a fault element requires the knowledge of something actual by means of authentic or authoritative information.  There are some of the sections that discuss the term knowledge under the penal code. Section 108 of Penal Code stated that a person who abets either the commission of an offence or the commission of an act which would be an offence, if it is committed by a person capable by law of committing an offence with the same intention or

knowledge as that of the abettor. Next in Section 166 of Penal Code, it stated that any Public Servant that disobeys the direction of the law in which he intending to cause or knowing that he will cause injury to any person, then he shall be punished with imprisonment for a term one year or fine or with both. In section 299 of Penal Code, it stated that whoever caused death or bodily injury by doing an act with the intention or with knowledge, then the accused is said to have commit the offence of culpable homicide.  In many cases, the intention and knowledge were merge together as basis of liability. In Section 307 of Penal Code it stated that whoever that has the intention or knowledge to cause death, then he will be guilty of murder and shall be punished with imprisonment and also fine. In Section 368 of Penal Code it stated that whoever that has the knowledge that any person has been kidnapped or has been abducted, wrongfully conceals or keep such person in confinement, then the person shall be punished as if he has the same intention or knowledge or for the same purpose as that with or for which he conceals or detains such person in confinement. However, in the case of Jai Prakash v State, the court has differentiated between the meaning intention and also knowledge. The court stated that knowledge of the consequences may result in doing an act is not same thing as the intention that such consequences should ensues. Intention requires something more than mere foresight of the consequences which is purposely do something in order to achieve a particular end. On the other hand, knowledge signifies a state of mental realisation with the bare state of conscious awareness of certain facts in which the human mind remains simple and inactive. 3. Wilful Blindness  The wilful blindness is being described as mental state where the accused was aware of an obvious means of acquiring knowledge, but they have shut their mind to those means. Basically, the accused knows certain facts but those facts are insufficient to enable him to know that the proscribed harm will be occurred as a result of his action. Although the accused do not possess the actual knowledge of the proscribed facts, however the law regards them as having same level as someone who possesses the actual knowledge. Thus, wilful blindness is the same as actual knowledge and the law will punished the accused same like the person who possessing the actual knowledge. This is due to the fact that the accused knew that the facts existed but had deliberately refused to confirm this in the belief that where ignorance is safe. 4. Reason to believe  Reason to believe can be defined as voluntarily and it also appears in S.39 of the Penal Code. Reason to believe is also a specific element for offences of receiving stolen property. The term ‘reason to believe’ is being defined in S.26 of Penal Code, which states that 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 of this is partly subjective and partly objective. The subjective component is that it is the particular accused’s actual knowledge of the relevant facts and circumstances which is critical, not what a reasonable person might have thought. This is borne out by word that has been used in s.26 of ‘if he has sufficient cause to believe’ as opposed to ‘if there is sufficient cause to believe’. The objective of the component is that what a reasonable person possessing is the accused’s knowledge of the relevant facts and circumstances would

be likely to conclude about the relevant nature of the thing concerned. It follows that the court is not to attribute the reasonable person with specialised knowledge of a certain field. In the case of Koh Hak Boon v PP, the Singapore high court stated that the court must assume the position of the actual individual involved which includes his knowledge and experience, but must have reason that is infer from the facts known to such an individual from that position like an objective reasonable man. 5. Voluntarily  Voluntarily is being defined under Section 39 of Penal Code, where it stated that an individual is said to cause an effect “voluntarily” when he causes it by means which he had the intention to cause it, or by means which he knew or believed that he was likely to cause it at the time when he employed that means.  Voluntarily covers three different mens rea, which are intention to cause, knowledge on likelihood of causing the result, and reason to believe that there is likelihood of causing the result.  Whenever a provision uses the term “voluntarily”, then only one of the mens rea must be proved by the prosecution.  The definition of “voluntarily” was evidently borrowed from the term “wilfully” that was prepared by the Commissioners on the Criminal Law of England which states that a hurt, damage or other evil consequence of an act shall be deemed to have been caused wilfully if the doer of the act intended such consequence to result or knew or believed that it was likely to result from his act, or where knowing or apprehending that such consequence would probably result from his act, he wilfully incurred the risk of causing it.  In the case of Public Prosecutor v Mohamad Sabu, the definition of “voluntarily” was held to be resemblance to the definition of “wilfully” under the English law. The use of the expression “intended or knew or had reason to believe” in the definition of “voluntarily” in Section 39 of the Penal Code, indicates the requirement of mens rea in an offence.  However, the courts should avoid referring to the English concept of “wilfully” when interpreting S 39 of Penal Code. First, S 39 of Penal Code includes “reason to believe” which is absent in the English concept. Secondly, the English concept of “wilfully” has evolved to include doing something without legal excuse. This expanded meaning has no place in the term “voluntarily” under the Penal Code.  Under the Penal Code, voluntariness is not equivalent to an intention. Therefore, Section 39 of the Penal Code may not be sufficient in order to obtain a conviction under Section 300 of the Penal Code. Several authors suggested that S 39 of Penal Code had an artificial meaning and could be equivalent or approximate to the English mens rea of “willful.”  Therefore, it can be concluded even if the prosecution can prove that the accused had voluntarily committed an act, it does not necessarily mean that he intended to commit the act. A mere reason to believe that he is likely to cause hurt is not the sufficient to mens rea for murder. 6. Recklessness  Although Recklessness does not appear in the Penal Code, it can be found in other statutes, such as the Malaysian Road Transport Act and the Singaporean Road Traffic Act which provide for the offence of causing death by reckless or dangerous driving.  Section 41(1) of Road Transport Act stated that anyone who causes the death of any individual, by driving a motor vehicle recklessly or at a speed or in a way which is dangerous to the public, shall be considered to be guilty of an offence and shall be

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imprisoned for a period of not less than 2 years and not exceeding 10 years and shall be fined for an amount of not less than RM5,000 and not exceeding RM20,000. In Public Prosecutor v Zulkifli Bin Omar , the court applied the definition found in R v Reid regarding the offence of reckless driving. An individual was said to be reckless if he acknowledged that there was some risk involved, but he still went on to take it, or that he did not address his mind to the possibility of the risk, and the risk was actually obvious. According to the case, recklessness can be defined by a subjective mental state of knowledge of a risk or on objective test of a failure to identify an obvious risk. An alternative interpretation of “recklessness” is that it requires a subjective mental state, which is the accused must know the possibility of the harm occurring. This can be seen in the case of Yap Sing Hock v Public Prosecutor. The court held that “intention” and “recklessness” require the accused to have the foresight that his conduct will result in the commission of the offence. In Emperor v Idu Beg, the judge mentioned that the criminality lies in the risk of carrying out an act with recklessness or indifference regarding the consequences. Recklessness involves advertence to a risk of adverse effect. Subjective recklessness was initially set out in R v Cunningham and is thus often known as Cunningham recklessness. In the case of R v Cunningham, the defendant had broken a gas meter in order to steal the money, causing the gas to leak into the next-door house. The victim got sick and her life was threatened. The defendant was convicted with “maliciously administering a noxious thing that endanger life” under Section 23 of the Offences Against the Person Act 1861. The defendant appealed to the court against his conviction. The court ruled that for a defendant to have acted “maliciously”, there must be evidence which showed that he had the intention to inflict the harm, or that he was reckless as to how such harm may have been done. In this case recklessness involved the defendant becoming conscious of the risk that his conducts could result in the forbidden effect. Essence of Subject Recklessness: A person acts with subjective recklessness as a result of his deliberate act if, when doing that act, he actually foresees that there is a risk which may arise from his act and still takes the unreasonable risk of doing so. Under English Law, this concept had been extended to reckless driving. In the case of R v Lawrence, the defendant (a motorcyclist) was convicted with causing death by reckless driving as he collided with a pedestrian and killed him. The court ruled that the test of recklessness was the same in the case of reckless driving as it was for criminal damage, but used the terms “obvious and serious risk”. Objective recklessness: Later, the House of Lord added an objective element to the term “recklessness” and this was considered purely objectively. The important case was R v Caldwell, where the accused had been intoxicated and caused criminal damage to property. The issue that arose in this case was whether a reasonable man would still act in the same way. It was ruled that a defendant was reckless as to whether he destroyed the property if he had produced a risk of damage that would be evident to the reasonable man and either had not given any consideration to the probability of such a risk while committing the act concerned, or had known that there was risk involved and nevertheless went on to do it.

In Public Prosecutor v Zulkifli Bin Omar , it was stated that in order to be guilty of the more severe category of reckless driving offence, a serious injury to the individual or damage to property must be created and produced by the defendant (driver) and must either not have recognized the likelihood of such obvious risk, or have seen the risk and still have opted to take it. 7. Rashness  Rashness is not laid down in the Penal Code. The term as used in Section 304A of the Penal Code has gained the most judicial attention, namely, the offence of causing death “by committing any rash or negligent act which does not constitute culpable homicide”.  Certain cases do not treat “rashness” and “negligence” in Section 304A of the Penal Code as distinct fault elements but as merely containing different levels of culpability.  However, the correct view is that there is a significant 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 their conduct. In Tara Singh v Public Prosecutor, the Malaysian High Court noted that rashness and negligence are distinguishable words and one is exclusive of the other, the same act cannot be rash as well as negligent. In Public Prosecutor v Hue An Li, the Singapore High Court ruled that rashness and negligence were “dichotomous concepts” and supported this view by referring to the different maximum imprisonment sentences under Section 304A(a) and (b) of the Singaporean Penal Code. Nevertheless, the different sentencing maxima does not necessarily mean that a case of rashness will automatically be sentenced to higher penalties than a case that involve negligence. The sentence will depend on the facts of each case.  Rashness was described in the following terms by Holloway J in the case of In re Nidamarti Nagabhushanam, where it stated that culpable rashness is acting with the knowledge that mischievous and unlawful effects may follow, but with the expectation that they will not and always with the presumption that the actor has taken adequate measures to avoid their occurrence.  The courts have found the accused to be “rash” as the risk of damage or injury would be obvious to a reasonable person. The correct view is that ...