Criminal Law 1 - notes PDF

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Actus ReusWhenever a wrongful act takes place, the prosecution must prove that the defendant had caused or brought about the wrongful act. Section 33 of the Penal Code clearly stipulates that a wrongful act could be one single act or a series of act.Omissions can also be considered as wrongful acts....

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Actus Reus Whenever a wrongful act takes place, the prosecution must prove that the defendant had caused or brought about the wrongful act. Section 33 of the Penal Code clearly stipulates that a wrongful act could be one single act or a series of act. Omissions can also be considered as wrongful acts. Section 43 of the Code stipulates that under limited circumstances a failure to act can amount to the actus reus of an offence. As a general rule, English law does not punish a person for failing to act (no one will be punished if he fails to act unless he has a legal duty to act). However, the defendant will be responsible if two conditions are satisfied: a) he had a legal duty to act; and b) he had failed to discharge the legal duty. English law has recognised duty of care under the following reasons: a) Existing relationship  In R v Gibbins and Proctor, the court held that parents owe a duty of care towards their children and a failure to provide this care could invoke criminal liability. In this case, the defendants were held liable for the death of the victim because they had failed to feed the child. b) Assumption of responsibility  In R v Instan, the niece had invited her aged aunt to live with her. The defendant had failed to care for her aunt when her aunt did not get the medication that was required. The court found the defendant liable because she had assumed responsibility to care and failed to do so. c) Creating a dangerous situation  In R v Miller, the court held that if a defendant has created a dangerous situation it is his duty to do what he can to mitigate the harm caused. Failure to do so will amount to the actus reus of an offence. In this case, the defendant had dropped his cigarette but on the ground which cause a fire. He failed to put out the fire and that failure to act made him liable. d) Under statute e) Under contract  In R v Pittwood , the court stated that legal duties could also be imposed under the law of contract. In this case, the defendant had a contractual duty to open and close the railway gate. His failure to close the railway gate had caused the death of pedestrian and made him liable.

Mens Rea Besides proving the actus reus, the prosecution must also prove that the defendant had the requisite mens rea at the time he committed the act. In simple language, mens rea means “guilty mind”. It refers to the “state of mind” under which the defendant performed the wrongful act or the crime. The requirement of mens rea is subject to one exception which was held in the case of Thabo Meli v R: Where the actus reus consists of a series of linked acts, it is enough that the mens rea existed at some time during the series, even if not necessarily at the time of the particular act which caused the death. The Penal Code has stated several types of mens rea. The highest level of guilty mind is intention. Then, there is knowledge, voluntariness, reason to believe, negligence, and few others. To infer the meanings of these terms, courts would have to refer to cases. For example, under Section 300 of the Code, murder is defined under four subsections. There are several types of mens rea recognised under these subsections. Intention is recognised as the requisite mens rea for murder under S.300(a) of the Code. The court in the case of Bhagwant Appaji v Kedari Kashinath stated: ‘The word “intent”, by its etymology, seems to have metaphorical allusion to archery, and implies “aim” and thus connotes... the one object for which the effort is made...” On the other hand, S.300(b) of the Code recognises two levels of men rea: intention of causing the injury and knowledge that the injury could cause death. Knowledge denotes awareness of certain facts with absolute conviction or certainty as to their existence. In PP v Koo Pui Fong, the court held that knowledge of a certain fact means that the individual must be personally aware that it exists or is almost certain that it exists.

Burden of Proof It is for the prosecution to prove that the defendant had committed the wrongful act and possessed the requisite mens rea when he carried out this wrongful act. Burden of proof means the duty placed upon a party to prove or disprove a disputed fact. Sometimes, this burden is also called the burden of persuasion, or the quantum of proof by which the party with the burden of proof must establish or refute a disputed factual issue. In criminal cases, the burden of proof is placed on the prosecution where it must be proven beyond reasonable doubt that the defendant is guilty before he is convicted. In the case of Woolmington v DPP, the defendant The defendant claimed that he had taken a gun with him to the house of the victim’s mother to show his estranged wife that he planned to commit suicide if she failed to return to him. He alleged that the gun had gone off by accident, i.e. while he was showing it to her. Despite this claim the defendant was convicted of murder. At the trial, the Judge directed the jury and suggested that the defendant had to prove it was an accident. The defendant appealed. The House of Lords accepted the defendant’s claim that the trial judge had misdirected the jury, with it being established that the prosecution needs to prove – beyond reasonable doubt – two things. Firstly, that the defendant had actually committed the offence in question. Secondly, that he had done so with the necessary ‘guilty mind’. The effect of this judgment is that the conviction was overturned. Thus, as a general rule, the burden of proof is on the prosecution and it has to: a) prove the ingredients of the offence; and b) negate or deny the defences raised by the defendant.

Coincidence of Actus Reus and Mens Rea The general rule in a criminal offence is that the mens rea (fault element) must be present when the wrongful act (actus reus) takes place. This is stated in the case of Fowler v Padget where Lord Kenyon CJ described the concurrence principle as to show that ‘the intent and the act must both concur to constitute a crime’. However, there is a couple of exceptions to this rule: i) if the offence is a strict liability offence, then the actus reus is sufficient to attract criminal liability; and ii) mens rea can come anytime in a series of wrongful acts. In the case of Thabo Meli v R, the appellants acted under a preconceived plan first to kill the victim and then make the death look like an accident. They struck the victim 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 hat the concurrence principle had not been met since the blows which were intended to kill did not kill, and since their acts which did not kill were not accompanied by murderous intent since they thought they were handling a corpse. The Privy Council rejected the argument and held that the wrongful acts were considered as one or as same transaction. Their Lordships were of the opinion that in such a situation the mens rea need not be present at the beginning of the act but it can be found anytime during these wrongful acts. In the case of Shaiful Edham bin Adam v PP, the appellants had inflicted several wounds on the victim before disposing what they thought was a corpse into a canal. The autopsy showed that the victim was then still alive and had died by drowning and, furthermore, that her wounds would have bled slowly for hours so as to cause her to lapse into unconsciousness and to appear dead. The appellants argues that the actus reus and mens rea did not coincide. The court rejected the argument and found them guilty based on the principles established on the case of Thabo Meli v R. In Fagan v Metropolitan Police Commissioner, a policeman was directing the defendant to park his car. The defendant accidentally drove onto the policeman's foot. The policeman shouted at him to get off. The defendant refused to move. The defendant argued at the time of the actus reus, the driving onto the foot, he lacked the mens rea of any offence since it was purely accidental. When he formed the mens rea, he lacked the actus reus as he did nothing. The court held that, since the physical element of assault continued until the defendant drove off the foot, the fault element concurred with the physical element when the defendant became aware of the situation and refused to remove the car.

Causation When one deals with causation, it is clear that the act of the accused need not have been the sole or the main cause of the death, since there may have been others including the victim who may have contributed to the death. It is possible that these intervening acts could also be present before the wrongful acts took place. The defendant can only be found guilty if the prosecution can prove that the chain of causation was not broken. The general rule is that the accused may not be held responsible for the death of the victim, if the victim dies as a result of some other subsequent act or event which would have cause the death just in the same manner. Thus, the chain of causation has been broken. One of the tests for causation is the ‘but-for’ test (substantial cause). In R v Smith, The defendant got into a fight and stabbed the victim. The victim was taken to the medics but was dropped twice on route. Once there the treatment given was incorrect and victim was misdiagnosed. The victim died. The defendant was convicted of murder and appealed contending that if the victim had received the correct medical treatment he would not have died. The court held that the stab wound was an operating cause of death and therefore the conviction was upheld. Another test would be the ‘foreseeability’ test (did the defendant foresee the victim’s death as a consequence of his conduct?). In Yohanan v State, the accused had stabbed the victim but the victim did not die immediately. The victim died several months later and the facts also showed that the victim had suffered health issues which resulted out of the injury. The court used the foreseeability test and held that the defendant did not foresee that his stabbing with a penknife would cause the victim’s death. In R v Jordan, the defendant stabbed the victim. The victim was taken to hospital where he was given anti-biotics after showing an allergic reaction to them. He was also given excessive amounts of intravenous liquids. He died of pneumonia 8 days after admission to hospital. The court held the victim died of the medical treatment and not the stab wound. The defendant was not liable for his death. In R v Malcherek and Steel, both cases the victims had been taken to hospital and placed on life support machines. The doctors in the respective cases later switched off the life support machines as both victims were not showing any activity in their brain stem. The defendants sought to argue that the doctors' actions broke the chain of causation. The court upheld the convictions. The test of death is where the brain stem has died. Thus at the time of switching off the machine, the victims were already dead. Therefore, the doctors could not be liable. In R v Blaue, the defendant stabbed an 18 year old girl four times when she refused to have sexual intercourse with him. She was a practising Jehovah's witness and refused to have a blood transfusion which would have saved her life. The defendant was convicted of manslaughter and appealed arguing that the girl's refusal to accept the blood transfusion broke the chain of causation. The court upheld the defendant's conviction and held that the wound was still an operative cause of death.

Transferred Malice It is for the prosecution to prove that the defendant had carried out the wrongful act and possessed the requisite mens rea. If the defendant argues that the actus reus and mens rea did not coincide, then it is likely for the prosecution to rely on exceptions established in cases such as Thabomeli v R and Shaiful Edham v PP. However, in instances where the defendant argues that the injury was caused to an unintended victim only then would the doctrine of transferred malice be relevant. It applies where the mens rea of one offence can be transferred to another. Suppose A had the mens rea to cause injury and kill B but misses and hits and kill C, transferred malice can operate so that the mens rea of A (intention to kill B) can be transferred to the killing of C. Consequently, A is liable for the murder of C, despite the fact that he did not actually intend to kill C. In R v Saunders, the defendant gave his wife an apple which he had poisoned with arsenic. He wanted to kill her so that he could marry another. The wife took a bite from the apple then gave it to their daughter. The daughter died. The court held that the defendant was liable for the murder of his daughter. His intention to kill his wife was transferred to the daughter. In R v Latimer, The defendant got into a fight in a pub with another man. He took off his belt and hit the man with the belt. The belt ricocheted off and hit a woman in the face. The court held that the defendant was liable for the injuries inflicted on the woman despite the fact that he did not intend to harm her. The mens rea he had to cause harm to the man was transferred to the woman. The prosecution has to only prove that the defendant had carried out the wrongful act and he possessed the requisite mens rea to do so. Therefore, the defendant’s argument that an unintended victim was injured is completely irrelevant. However, the doctrine of transferred malice does not operate where the crime which occurred was different from that intended. In R v Pembliton, the defendant threw some stones into a crowd of people. He wanted to disperse the crowd. A stone hit and smashed a window. He was convicted of criminal damage and appealed. The court quashed his conviction. His mens rea for an offence against the person could not be transferred to a property offence as they are entirely different offences.

Murder The prosecution must rely on the surrounding circumstances to prove the facts fall within s 300. The defendant would be charged under s 302 and if he is found guilty, he will be sentenced to death. The AR can be ascertain through the facts of the case. According to PP v Manimaran Amas, there are three things needed to be proven by the prosecution: i. Death of the victim - established since the victim is dead; ii. Death was caused by the act of the accused - can be a single act or a series of act (Section 33)/if there is an intervening act, then must prove that the chain of causation is not broke (but-for test or foreseeability test)/if act was carried out by several persons (Section 34); and iii. Mens rea of the accused - must fall within the ambit of s 300 (intention and knowledge). The fault element embodied in s 300(a) is intention. According to Siva Kalisvaran v PP, the courts will have to infer ‘intention’ by looking at the surrounding circumstances. Bhagwant Appaji v Kedari Kashinath: The word “intent”, by its etymology, seems to have metaphorical allusion to archery, and implies “aim” and thus connotes ... the one object for which the effort is made...

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Ram Kumar v State: Intention denotes a purposeful doing of a thing to achieve particular end. Virsa Singh v State of Punjab: If there is an intetnion to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and ... the act would fall under [s 300(a)]. PP v Winnie Leh Cheng: The prosecution must prove that the act of the defendant was done with the specific intention to cause death.

Under s 300(b), the prosecution, besides proving intention, has to also prove that the defendant has knowledge. This section is applicable if the evidence shows that the defendant had intended to cause only bodily injury but he knew that this act is likely to cause death. Jai Prakash v State: Knowledge is a state of mental realisation with the bare state of conscious awareness of certain facts in which the human mind remains simple and inactive. PP v Koo Pui Fong: Knowledge of a certain fact means that the individual must be personally aware that it exists or is almost certain that it exists.

Section 300(c) can be satisfied if there was an intention to cause death, the bodily injury was present, and it was sufficient in the ordinary cause of nature to cause death. Therefore, according to PP v Frans Hiu, if all the elements above are proven, the accused cannot say that the death caused was accidental or unintentional. As for s 300(d), the prosecution must prove the defendant knowingly carried out an act that was imminently dangerous which will cause death. The act must be proven to be imminently dangerous and defendant knew of this danger. According to Lee Fook v PP, the wrongful act done must have been imminently dangerous, and it must in all probability cause death and the defendant had no excuse to carry out this wrongful act. In Nor Hamdan v PP, the appellant, a prisoner, had assaulted the deceased with two other inmates. He was charged under s 300(d) and the issue was whether he had the mens rea that falls within the said section. The Court of Appeal held that the prosecution failed to prove that the appellant knew that his act was so imminently dangerous that it will cause death in all probability. The charge was reduced to s 304(a) and the accused was convicted for an offence of culpable homicide not amounting to murder.

Culpable Homicide and Defence of Provocation Section 299 of the Penal Code covers unlawful killing which is culpable homicide not amounting to murder. It is relevant when s 300 cannot be proved (Nor Hamdan Mohmad v PP) or when one of the Exceptions under s 300 is raised. Exception 1 to s 300: Where the defendant had been charged under s 302 but there is evidence to suggest that the victim provoked the defendant which caused the defendant to kill the victim, it is likely that defence of provocation can be raised and must be proven on balance of probabilities by defendant. According to the court in Mohd Faizal Juhari v PP, it is the burden of the accused to prove this defence. The relevant issues that must be considered include that the provocation must be done by the victim (defence will fail if a third party had provoked the accused and the provocation caused the accused to kill the victim) and the provocation was grave and sudden and caused the defendant to lose self-control (the defendant did not have time to think or cool off). Generally, the shorter the time period between the provocative acts and defendant’s reaction, the easier it will be to prove that the provocation was grave and sudden. Mohammad Ali bin Johari v PP: Appellant killed a crying toddler and attempted to raise the defence of provocation. Court held it was not morally permissible to regard the cries of a young child as sufficiently grave provocation. Loh Yoon Fatt v PP: Accused’s car blocked deceased’s car. Deceased honked a few times and kicked the accused’s car. The accused then argued with the deceased and later walked to his car to grab a metal rod and hit the deceased who died several days later. Court held the acts of the victim were not grave enough to cause the accused to kill him. Defence of provocation can be successfully pleaded if the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; and that the provocation is not given by anything done in the lawful exercise of the right of private defence. Grave provocation: In PP v Juminem, the defence cannot be raised as the defendant could not prove that the deceased’s provocation was grave by an objective standard as she killed the victim one day later. Sudden provocation: In Loh Yoon Fatt v PP, the defendant cannot prove that he had acted in a manner that is considered sudden because he had time to go back to his car and get a metal rod. Cumulative provocation: In Che Omar v PP, if the provocation lacks gravity and suddenness, a cumu...