Criminal LAW 1 - Defence of Duress and Consent PDF

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(10 marks)Issue: Whether Izat could be criminally liable for Fauzan’s death.Law:A justificatory defence is based on the existence of rights of the offender. The accused who acts in reliance on a justificatory defence is excused from criminal liability because he exercises a right. The accused is not...

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(10 marks) Issue: Whether Izat could be criminally liable for Fauzan’s death. Law: A justificatory defence is based on the existence of rights of the offender. The accused who acts in reliance on a justificatory defence is excused from criminal liability because he exercises a right. The accused is not culpable in that there is no wrongful act to render him culpable. Two justificatory defences are; 1) consent, and 2) necessity.

Section 87 of Penal Code provides that nothing is an offence; 1) which is not intended to cause death or grievous hurt and which is not known by the doer to be likely to cause death or grievous hurt; 2) by reason of any harm it may cause or be intended by the doer to cause; 3) to any person above 18 years; 4) who has given express or implied consent to suffer that harm or by reason of any harm which it may be known by the doer to be likely to cause to such person who consented to take risk of that harm. In short this section provided the law’s point of view on acts done with the consent of the so-called victim either express or implied to suffer that harm, who is above the age of eighteen years old and such act was done without the intention to cause death and not known to the doer is likely to cause death. Such acts are deemed to not be an offence. Illustration provided by section 87 of Penal Code is that A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.

In accordance to section 90 of Penal Code a consent is not what amounted to the intended meaning of consent by the code when it is given (a) under fear of injury, misconception of fact and the person doing the acts knows or has reason to believe the consent is given in consequence of fear or misconception of fact, (b) from unsoundness of mind or intoxication given by a person who is unable to understand the nature and the consequences of what he has given consent to, and (c) it was given by a person below 12 years-old provided that there is no contrary to the context exists.

In the case of Pendakwa Raya v Abdul Rahman bin Mohamad [2005] it was decided that consent in the defence of consent is the consent freely given and it is not obtained by force, threats, inducement or deception. This was later supported in the case of R v Abu Kassim bin Babu [1940] which explained consent as voluntary in accordance with or concurrence in what is done or proposed by another.

In the case of R v Clarence [1888] it was held that consent was not vitiated by the fraud of a husband who had coitus with his wife, which is his concealing from her of the fact that he was suffering from gonorrhoea. The consent of a wife to a marriage implicitly be deemed as her consent for the husband to exercise the marital right. Here is the proof that consent can also be given implicitly.

In the case of Ngwa Shwe Kin v Emperor (1915) 30 IC 133, the deceased, who believed in charms, had the belief that he had rendered himself to become proof to a sharp edged instrument known as da. He told the appellant to cut his right arm with his da after uttering some charms. However, the deceased’s arteries were cut which had caused him to bleed to death. It was held that the defence of consent could be raised as; 1) the appellant did not apply intense force, 2) the deceased had assured the appellant that he was da proof, 3) the appellant did not have enough knowledge and understanding to see the absurdity of it, and 4) the appellant had inflicted the cut on the body part which was specifically presented by the deceased for the purpose and that the part was not ordinarily regarded as a vital part. The appellant was found not guilty.

In the case of R v Bradshaw (1878) 14 Cox CC 83, it was held that, in a game, if a man abides to the rules and practises of the game and does not go beyond it, it is fair to assume that he is not induced by any ill motive or intention, and that he is acting in a manner in which does not have the knowledge that his act could likely lead to death or injury. Application: In the present case, the scenario was that Fauzan (the deceased) challenged Izat to a boxing competition. Izat, knowing that he is a stronger and much better boxer than Fauzan, accepted the challenge. In the sixth round, Izat dealt a knockout blow to Fauzan “hoping to seriously hurt Fauzan” and unfortunately led to Fauzan’s death. The issue is whether Izat can successfully raise a defence of consent in this case thus be held not guilty of Fauzan’s death. By virtue of Section 87 of Penal Code, if Fauzan is above eighteen years old, gave consent to suffer the harm from the

exchanges of blows in the boxing match, and the hit that took Fauzan down was done by Izat without the intention to cause the death or that Izat does not know that the hit was likely to cause death, therefore, Izat can raise the defence of consent and be held not guilty. It is undisputed in this case that Fauzan was twenty years old at the time the boxing challenge was held. As to what amounted to consent in the Penal Code, it was clarified in Section 90 of Penal Code, that Fauzan, being the one who initiated the challenge cannot be said to have given the consent under fear of injury or misconception of fact to be harmed during the boxing match. He was the one who challenged Izat to settle the differences between them. Izat who later accepted the challenge had no knowledge or any particular reason to believe that the challenge made by Fauzan was under any fear of injury or misconception of fact. Fauzan also, at the time when he challenged Izat to a boxing match, was a Sport Science student. It is safe to presume that he was able to fully understand the nature of the boxing match as he had the knowledge of the said sports. Fauzan’s consent does not fall under the ambit of the exception as pointed out in Section 90 of Penal Code, so it is a consent as provided by Section 87 of Penal Code. Applying the case of R v Clarence and the illustration provided by Section 87 of Penal Code, Fauzan, being a twenty year-old, is said to have impliedly given his consent to any harm that might be caused by the nature and consequence of the boxing match. On the other hand, Izat had played fairly throughout the entire match, in which he had acted according to the rules and practises of a normal boxing match to land the knockout blow and a hit to the head is not illegal, and still within the rules of boxing. Izat is deemed to commit no offence. As to the issue of intention or knowledge, Izat has to prove that he did not intend to cause the death of Fauzan and that he had no knowledge that the final blow to the head can likely cause the death. In the present case, Izat was hoping to seriously hurt Fauzan with a hit to the head. Applying the case of Ngwa Shwe Kin v Emperor, in a boxing match, a hit to the head is not what was ordinarily regarded as a death assured hit. Applying the concept of R v Bradshaw, Izat did play according to the rules and common practises of boxing matches and never did go beyond it.

Such acts can be inferred as negative to any malicious motive, thus, he did not act in a manner in which he knew would likely to cause death. Malicious intentions could safely be ruled out from Izat’s action.

Conclusion: To conclude, Izat can successfully raise the defence of consent and could not be held criminally liable for the death of Fauzan. Fauzan’s consent in the boxing match was not exempted by Section 90 of Penal Code as the intended consent. Lastly, Izat did satisfy the requirements to invoke the defence of consent as provided by Section 87 of Penal Code.

(10 marks) Issue: Whether Mehmed Effendy could use the defence of duress in proving that he is not criminally liable for his action.

Law: Section 94 of Penal Code provides the defence against duress for person whom compelled to perform an act due to threats except for the offense of murder, offences included in Chapter VI that is punishable by death and offences included in Chapter VIA where it is provided that no offence if by the time of doing of such act, he is

compelled to do it due to the threats and reasonably cause apprehension that instant death to that person if he did not do such act. It is also provided that this particular person, as against his own will or from a reasonable apprehension of harm to himself short of instant death, had placed himself in the situation by which he became subject to control and limitation of others.

In Explanation 1 of the same section, it is highlighted that a person who joined a gang robbery either out of his own accord or influenced by fear of being beaten, and that person knows their character, he is thus not entitled for the defence of duress as if he is being compelled by his associates to do such act which is an offence by law.

Nevertheless, Explanation 2 is distinguished in the way that if a person being seized by a gang of robbery and forced by threat of an instant death to perform an act that is an offence by law, for instance if a smith is compelled to use his tool to force the door of house so the gang-robbers can enter and plunder; then he is entitled to the benefit of this exception.

In the case of Derrick Gregory v PP [1988] 2 MLJ 369, it was established that Section 94 of Penal Code distinctly provides that in constituting whether there is a threat that may apprehend an instant death to be a consequence to the person, reasonable fear must be in presence. It is also highlighted by the Court that a person who commits criminal acts from fear of anything but instant death, they did them at their peril.

In the case of Lynch v Director of Public Prosecutor [1975] 1 ALL ER 913, the defence of duress can be pleaded successfully subjected to these three following elements; 1) whether the accused by his own accord places himself in the situation that may subjected him to the threats posed by other; 2) whether the accused can avoid the consequences of duress by evading himself from the perils; and 3) if the accused has failed to act appropriately in removing such threats, he may lost the entitlement of benefits of defence of duress. Based on the third element, it is also further explained that threats and coercion will only be constituted if the effects of

such threats were present and continued to be present, consistently overwhelming the accused until the time of commission of the act.

In the case of Tan Seng Ann v Public Prosecutor [1949] MLJ 87, the appellant has been convicted for being in possession of a firearm. Two men came to his house and asked him to keep the revolver and will take it away in the morning. The appellant also failed to hand over the revolver to police despite his arrest and it was found out that he intended to return the revolver to the two men. Hence the Court held that there is no element of threats or coercion constituted against the appellant. It was also stated that the defence of duress by the provision of Section 94 of Penal Code is only applicable when the duress pleaded is imminent, extreme and persistent, thus the appellant is not entitled to such defence.

In Mohamed Yusof bin Hj Ahmad v Public Prosecutor [1983] 2 MLJ 167, His Lordship affirmed that despite whatever threats constituted against the person from another person, the defence of duress provided by Section 94 of Penal Code and Explanation 1 will remain inapplicable to those who voluntarily put himself in the situation that may subjected him to such threats.

In Chu Tak Fai v Public Prosecutor [1998] 4 MLJ 246, the Court held that based on the Explanation 2 of Section 94 of Penal Code, that the threat must cause reasonable apprehension of instant death where the threat posed is immediate and present in nature for instance failing of doing the act compelled to, he will be killed instantly. Also, the accused must take appropriate steps in removing such threats and if he failed to do so when there is actually an opportunity for him to remove the threat such as seeking police protection and so on then the defence of duress can no longer be applied. These two questions, namely whether the threat being present and immediate; and whether the accused had taken any reasonable steps to remove the threat, must both be answered in positive to successfully raise defence of duress.

Application:

Relying on the distinct, provided and stated facts of this case, it is crystal clear that Mehmed joined the religious cult on his own accord and not by any fear of threat or coercion. By virtue of Section 94 of PC, although Mehmed is compelled to set the explosives to the school building due to the threats posed by the religious leader in which upon disobeying his orders, Mehmed could be killed.

It was held in Derrick Gregory v PP, that it was evident in pleading successful defence of duress, Mehmed’s reasonable fear of committing the offence must be led by a threat of such peril and the threat must be continuous and present in all time until the commission of the act. There was no apparent evidence that signified the threat of killing him is present in all material time as Mehmed presumed walking as free man and not held hostage in any chance by the religious cult leader until the time of him being arrested by the police.

Furthermore, applying the first element as established in Lynch v Director of Public Prosecutor into Mehmed’s situation, as well as the case of Mohamed Yusof bin Hj Ahmad v Public Prosecutor, Mehmed had placed himself in the situation on his own accord by voluntarily involved himself in the religious cult in which he knows and is well aware that the cult promotes violence. So, the answer to the first element is negative.

Applying the second and third elements established in the case of Lynch v Director of Public Prosecutor and the case of Chu Tak Fai v Public Prosecutor into this case, he could have avoided the consequences of duress by evading himself from the possible dangers which may be posed by the religious group, and he had failed to act appropriately by taking any possible preventive measures to remove the alleged threat, perhaps by seeking protection from the police when he is instructed to set the explosives. Thus, Mehmed is not entitled to use the defence of duress for his benefit. He can avoid the danger by quitting the cult but not a single attempt to do so has been committed. Mehmed had failed to avoid or prevent the action of setting the

explosives at the school building when he actually had the opportunity to do so. His action reflected that he intended to set the explosives and not to stop the criminal action. He could have sought protection from the police but he did not, thus, he cannot use the defence of duress in proving that he is not criminally liable for his action. Additionally, the death threat posed by the spiritual leader on Mehmed was not continuous until the commission of the criminal act; setting the explosive at the school, in which this should have been the right opportunity for him to prevent the act, but again Mehmed failed to do so. Therefore, the second and third elements established in the earlier mentioned cases are also in negative.

Conclusion:

In brief, Mehmed’s act has failed to satisfy the requirements for the elements of defence of duress as in the provision of Section 94 of Penal Code and Explanation 1. Mehmed’s involvement in the cult by his own free will, has been the foremost reason that put him in the risk of the threat that may cause instant death to him and Mehmed’s failure to evade the threat until the time of him being arrested has exempted him from being entitled to the benefit of the defence of duress as provided in the same cited provision above....