Criminal Law notes - Joint Liability; Common Intention PDF

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Made by Aliah Criminal Law notes – Joint Liability; Common Intention - A person can only be held liable for harm caused by his own conduct and not by others. - Justification to exceptions > A person who intentionally joins a criminal enterprise with another is just as blameworthy as the person who actually commits the offence. > Sometimes it is extremely difficult to pinpoint the specific contributions made by each individual participant in the criminal enterprise. * Must be kept within limits; otherwise criminal responsibility can be imposed excessively on a wide The fundamental principle range of persons other than those who actually commit the crime. - Illustration > Individuals may played different roles at different times in planning an executing the crime. > For example, it may be clear from the evidence that the victim died from the injuries inflicted in a joint planned attack but it is not clear who inflicted the fatal blow. > No one could be convicted if the prosecution was required to prove which individual committed the actual physical elements of the crime and had the requisite fault element for it. - Principal offendor > A person, with the requisite fault element, acts in the way prescribed by the offence. - Secondary party > A person who is associated with the principal offendor in his commission of the offence. Principal offendor and - Illustration secondary party > The principal offendor causes the death of victim then rides the gateway car driven by secondary party. - There can be more than one principal offendor in an offence. - Illustration > A and B agreed to rob V. A holds knife to V’s throat, and B takes away the money from V’s pocket. > Both A and B have jointly fulfilled the physical and fault elements of robbery, and they are both liable as coprincipals for the offence.

->SWhen 37 Penal Code is committed by means of several an offence 1

Made by Aliah acts, whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. - Illustration > A and B agreed to murder Z by giving small dose of poison at different times. > Z dies. > Here, A and B intentionally co-operate in the commission of murder, and as each of them does an act by which the death is caused, they are both guilty of the offence, though their acts are separate.

I. Common Intention - S 34 Penal Code > “When a criminal act is done by several persons, in furtherancei of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.”

Definition

- Bashir v State > If the conditions mentioned in s 34 are fulfilled, then each of the persons or conspirators is responsible for the whole criminal act done by all of them. > If A and B do a criminal act in furtherance of their common intention, each of them is guilty of that offence of which he would have been guilty if he alone had done the whole criminal act. > The law makes no distinction between them or between the partes played by them in doing the criminal act; each is guilty of the same offence. - Application on secondary parties > Liability is imposed only if they had actual foresight of the possible consequences of their agreement. > This conforms with the principle that a person is only to be punished to the extent of his culpability. > Moreover, such an approach strikes a balance between the principle that a person should only be held criminally liable for the harm caused by his conduct and the need to deter group crimes. > Hence, even though the accused may not have committed the physical elements of the offence, he manifests sufficient culpability to be held liable for that offence through s 34 of Penal Code of he had the actual foresight that his companion would commit it. - Criminal act.

Elements

Common intention between the parties. 2

Made by Aliah - Participation in the doing of the act. - Act done in furtherance of the common intention of the parties.

- ‘Criminal act’ that is ‘done by several persons’ in s 34 does not refer to actual crime done. - Illustration > If A and B fired at a victim, A hitting him and B failing to hit him, it is not correct to say that the criminal act is the killing of the victim which was done by one person only. - Barendra Kumar Ghosh v Emperor > Privy Council defined ‘criminal act’ as unity of criminal behaviour, which results in something, for which an individual would be punishable, if it were done by himself alone. - Therefore, the ‘criminal act’ refers to all the acts done by the persons involved which cumulatively result in the criminal offence in question. The acts committed by the different parties in the criminal action may be different but all must in one way or other participate and engage First element: Criminal act in the criminal enterprise. - Illustration > A person may only stand guard to prevent any person coming to help the victim or otherwise to facilitate the execution of the offence, but such a person also commits an act as must as his co-participants who actually commit the planned crime. - In other words, liability under s 34 is for the criminal act actually done and not for their common intention. - Illustration > A and B formed common intention to rob the victim and kill the victim if necessary in order to accomplish the robbery. > A kills victim in the course of robbery. > B is also liable for the victim’s death. > B is not merely liable for the robbery alone even if B did not participate in the killing. - Common intention refers to the common design for two or more persons acting together to do the physical act which comprises the offence. This may be different than Second element: Common the ingredient of intention that is a fault element found in intention Penal Code.

- Illustration > A and B decided to beat V to death 3

Made by Aliah > The fault element required to convert this criminal act into the offense of murder is the intention to cause death. > However, there is the more immediate ‘intention’ in the mind of A and B to perform the physical acts of beating.. > It is this ‘intention’ to do the physical act which is encompassed by the phrase ‘common intention’ in s 34. > Hence, it is possible for s 34 to apply to offences which require knowledge as a fault element. - State v Saidu Khan > The common intention animating all those who are acting in concert within the meaning of s 34 must, therefore, be an intention to do a particular criminal act or bring about a particular result, not necessarily the act or the result which constitutes the crime charged. > Here, the word ‘intention’ is used in a much wider sense and is not confined to what is described as volitional intention, ie, something willed and therefore intended. - Bashir v State > ‘Common intention’ is the common design of two or more persons acting together. It is more akin to motive or object. > It is remoter than the intention with which each act included in the criminal act is done; it is what the persons jointly decide to achieve. > It is the reason or object for doing all the acts forming the criminal act. > In some cases, the intention which is an ingredient of an offence, may be identical with the common intention of the conspirators but it would still be separate from, or in addition to the common intention and not merge in it. Common intention must be quite specific as to what the parties have intended to carry out. - PP v Ho So Mui > It was held that even if there was a common intention between the parties to smuggle pens and lighters, this was different from a common intention to smuggle drugs. > The accused were therefore rightly acquitted of the charge of attempting to export controlled drugs from Singapore. - Mahbub Shah v Emperor > Common intention requires proof that the criminal act was done pursuant to a pre-arranged plan. However, there is no such requirement in the Penal Code and it has now been ruled that common intention can be formed on the spot or during the course of commission of the offence. > The crucial question is simply whether the parties were

acting in concert. 4

Made by Aliah - Bashir v State > ‘Common intention’ that was held to imply a ‘prearranged plan’ does not mean either that there should be a discussion and agreement. - Asogan Ramesh s/o Ramachandren v PP > The court held that three appellants had developed a common intention on the spot to assault the deceased for what he said to them, and also this murder was committed in furtherance of this common intention. > Hence, in assessing the common intention of the parties, it must be borne in mind that this can evolve as the plot unfolds. - Illustration > A and B agree to kidnap and rape a woman, V. > At the outset, there is no plan to kill. > However, the plan can evolve to a stage where it can fairly said that A and B formed a common intention to kill V. - Initially, physical presence is required, but not anymore. - For the principals, their physical presence is required. For secondary parties, their physical presence is not required as long as they have participated to a sufficient degree such that he or she is deemed to be as blameworthy as the principal offendor. - The reason for not requiring physical presence in order to show participation is that modern technological advances permit assistance to be given from afar. - Sabarudin bin Non v PP, Gopal Sri Ram JCA > “Presence in every case is not necessary for s 34 to Third element: Participation apply. S 34 should be interpreted having regard to modern technological advances. The early decisions that held presence to be essential for s 34 were handed down at a time when modes of communication were not as advanced as today. It would, in our judgement, be a perversion of justice if we are required to cling on to an interpretation of the section made at a time when science was at very early stage of development.” - Lee Chez Kee v PP > What s 34 requires is proof of participation, which can be at ‘the specific criminal act committed by the principal offendor which gives rise to the offence charged’, or ‘in some other criminal act that is done in furtherance of the common intention of all the offenders’....