LAW 505 Assignment: Necessity (Section 81 of the Penal Code) and Mistake of facts (Section 79 of the Penal Code) PDF

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FACULTY OF LAWLAW 505: CRIMINAL LAW IASSIGNMENT 2: TUTORIAL QUESTIONSLWB03FSUBMITTED BY:MAGRET AZEYRA RAP (2019333973)SUBMITTED TO:MADAM CHE AUDAH HASSANQUESTION 1:The issue of this case is whether Zoro is liable for the defense of necessity under Section 81 of the Penal Code? Necessity is when an a...

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FACULTY OF LAW

LAW 505: CRIMINAL LAW I

ASSIGNMENT 2: TUTORIAL QUESTIONS

LWB03F

SUBMITTED BY:

MAGRET AZEYRA RAP (2019333973)

SUBMITTED TO:

MADAM CHE AUDAH HASSAN

QUESTION 1: The issue of this case is whether Zoro is liable for the defense of necessity under Section 81 of the Penal Code? Necessity is when an act which might somewhat be against the law but is also excused if it was done only to avoid consequences which could not be preferably be avoided. If they followed the law, that consequence would have inflicted upon him inter alia , whom he was sure to protect inevitable and irreparable evil. The evil of obeying the law is socially greater in some circumstances than the evil of breaking its law should be broken to realize a greater good. In accordance with Williams Glanville, a necessity within the legal context involves the judgment that the evil of obeying the letter of the law is socially greater, particularly circumstances than the evil of breaking it. In other words, the law must be broken to realize a greater good. In Malaysia, necessity is recognized in Section 81 of the Penal Code. Section 81 stated that nothing is an offense merely due to its being done with the knowledge that it is likely to cause harm if it has eluded any criminal intention to cause harm, and in straightness to forestall and avoid harm to person or property. The reason for this section in the Penal Code was that necessity could be a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and then imminent on justifying or excuse the chance of doing the act with the knowledge that it was likely to cause harm. There are elements under Section 81, which is that the accused must know that he is likely to harm another person. Second, the act must be done without any criminal intent whatsoever. Thus, the act must be done in bona fide to prevent any harm towards persons or property. Fourth, the act of necessity was done as there was a threat of harm to person or property, and lastly, the accused's act was in such nature, and imminent are justified. This means that the defense of necessity is an act of offense that had been excused, with the condition that he needs to show that the act done was to avoid consequences that could not be avoided, and if he followed the law, people whom he is supposed to protect would-be inflicted to harm. Thus, Section 81 allows inflicted harm in order to avoid more significant harm done towards a person or property.

This is illustrated in the appeal case Public Prosecutor v Ali bin Umar & Ors 2 MLJ 51. On February 1st, 1978, within Malaysian Territorial Waters, the respondents were Indonesian seamen who were arrested by the Customs at off the coast of Tanjung Ayam, Pengerang, Johor Bahru. Judge Yusof Abdul Rashid held that the offense was one of strict liability, which requires no guilty intention or knowledge on the part of the appellant. As it was out of necessity, the defense respondents raised that their boat had a broken rudder, which led it drifted in distress into Malaysian waters because the rudder of the boat was broken in International waters. It would be necessary for the respondents to seek shelter for the safety of the boat and to preserve the lives of the crew during such distress. However, in the case of R v Dudley and Stephens [1884] 14 QBD 273, the two defendants (Dudley and Stephens) became shipwrecked by a storm. They were forced to abandon their ship and were stranded in a small emergency boat with two others, including a young cabin boy (Brooks and the victim; Parker). They had been stranded for 18 days, food had run out seven days earlier, and they had had no water for five days. Dudley and Stephens agreed to draw straws to see which one of them would be killed so that the others could eat him. Brooks did not agree, and Parker was, by this time, too weak to take part in any decision. As Brooks had not agreed, the defendants decided that it would be better to kill Parker if he was close to death and had no family. Dudley and Stephens cut Parker's throat, but he was too ill to put up any resistance. All three men fed on the boy and were rescued four days later. On their return to England, Dudley & Stephens were charged with the boy's murder. The issue of the case was whether the killing of Parker was murder considering the circumstances of this case. The Chief Justice, Lord Coleridge, in this case, admitted that the deliberate killing of this unoffending and unresisting boy was murdered unless the killing can be justified by some well-recognized excuse admitted by the law. It is further admitted that there was no such excuse unless the killing was justified by what has been called 'necessity.' Thus, the defendants were convicted of murder. The defense of necessity was not allowed. However, they were sentenced to death and were granted a pardon by the Crown and served six months imprisonment. According to Sir Hari Singh Gour, in The Penal Code of India Volume I, self-preservation is not a defense of necessity as no man has a right to take another man's life to preserve his own. Hence, no necessity can justify homicide. If a person is to be liable for being convicted for an act of murder, Section 300(a) stated that murder is an act that intends to kill another person. There must be both actus reus and mens rea. The terms are the cardinal principle reflected in the maxim actus non facit reum nisi mens sit rea. In translation to English, the maxim means an act does not make a person legally guilty unless his mind is guilty. In simpler words, if criminal liability is incurred, a person must commit a prohibited act, and his actions must be accompanied by a blameworthy state of mind.

This is illustrated in Thabo Meli v R [1954] 1 WLR 228, the appellants took the victim to a hut, got him drunk then attacked him. The appellants intended to kill him. The appellants believed that they had killed him when he was, but the victim was only rendered unconscious. They disposed of the victim by rolling it down a cliff, but medical evidence showed that the cause of death was exposure and not the initial attack at the hut. Lord Reid held that there is no doubt that the accused set out to do all these acts in order to achieve their plan and as parts of their plan; and it is much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before, in fact, it was achieved; therefore they are to escape the penalties of the law. In applying the aforementioned provisions and cases to the current case, Zoro and Marc have agreed to kill whoever lost the draw. The loser of the draw between the two was chosen. It was not necessary to kill one of the grown men. When Zoro won the draw, he had killed Marc and fed on Marc's flesh up until he was rescued. In virtue of Section 81, Zoro has no right to kill Marc even if the victim himself agreed to do so. This is because Zoro had killed Marc only to benefit himself, so he would not starve to death. This shows that he did not do it to prevent a greater evil, nor he had acted in good faith. Zoro's only intention was to save himself and live. In virtue of the maxim actus non facit reum nisi mens sit rea , Zoro may be liable for Marc's murder as he had done the act of killing along with a guilty mind for his own self-preservation. Hence, Zoro may be liable for the murder of Marc under Section 300(a) for murder with an intention to kill another. In addition, the question where Zoro said that killing Marc was necessary. This is similar in the case of R  v Dudley and Stephen; Lord Coleridge pointed out the awful danger of admitting the principle which has been contended for this sort of necessity as this would showcase on what measure does the comparative value of lives to be measured. His Lordship also stated that the principle would leave to him who is to profit by it to determine the necessity, which will justify him in deliberately taking another's life to save his own. Hence, necessary is something that everyone has benefited from; however, only Zoro has received a better outcome in their situation. In conclusion, Zoro had killed Marc for his self-benefit; thus, he is not liable for the defense of necessity under Section 81. Zoro may be liable for murder under Section 300 as he has the intention to kill Marc as the action he had done fulfilled the elements in the Latin maxim - has both; Actus Rea and Mens Rea.

QUESTION 2: The issue is whether Aral is liable for the defense mistake of facts under section 79 of the Penal Code. In Malaysia, a mistake is recognized under Section 79 of the Penal Code. Section 79 stated that nothing is an offense which is done by a person who is justified by law, or who because of a mistake of fact and not because of a mistake of law in good faith believes himself to be justified by law to do it. The phrase ‘justified by law’ in Section 79 is used in a strict sense and refers to something which requires vindication as being by the law or where the acts were done in obeying the law or an act done in conformity with the law. Section 79 deals with the situation where a person thinks that he is justified by the law to do the act. In other words, it must not be illegal. In the case of Abdullah v Regina [1954] 20 MLJ 195, the appellant was charged with statutory rape under Section 376(g) of the Penal Code, whereby sexual encounter with a girl under sixteen years is still considered as rape with or without her consent. However, there was evidence that the appellant had carnal knowledge of the complainant and that her age was under 14. The accused contended, however, that he thought she was over 16. At the trial, the learned Judge ruled that this belief was immaterial and refused to leave the matter to the consideration of the jury. The appellant was convicted; thus he appealed to the Court of Criminal Appeal as he had reasonable grounds for believing, and did believe that the girl was more than 14 years of age and that he was therefore entitled to be acquitted under Section 79 of the Penal Code. According to Murray Aynsley CJ, the appellant believed in good faith that the girl was over 16 years old, and the offense done was due to mistake of fact; thus, he is justified by the law. The defense of mistake has three essential elements that have been established which are; first, the act must be done due to the mistake of facts. Second, the act must be done in good faith of the defendant, and lastly, the act must be done under a mistake of fact, not by a mistake of law. According to Sir Hari Singh Gour, a mistake of fact may or may not be due to forgetfulness, ignorance, imperfect information, or faulty ratiocination. It may be due to chance, negligence, stupidity, or even superstition, but it must not be due to designs, pre-arrangement, or pre-concert. It also consists of unconsciousness, ignorance, or forgetfulness of a fact to the transaction or in the belief of the present existence of a material to the transaction which does not exist. He further explained the mistake by giving a few examples from a few cases, whereby if a man kills a man believing him to be a tiger or a hunter mistakes a man for an animal and fires, his mistake may be as much due to defective vision as to defective intellect. Thus, there is no mens rea in both situations - there was only one mistake so that it may be no crime.

This is illustrated in the case of Chirangi v State of Nagpur AIR 328, whereby the appellant is suffering from an illness that causes the delusion that was affecting his vision, he had mistaken his son for a tiger and killed for it. Due to his delusion, the appellant had considered that his target was a tiger and assailed it with his axe. The court stated that the appellant had thought that because of mistaken facts, he justified destroying the deceased whom he did not regard to be a human being but a dangerous animal, which in fact, to be his son. Thus, the appellant was protected under section 79. Also, James Vadackumchery mentioned in Crime Law and Police Science, if the accursed was misled into an error of fact on account of an error of law; thus, his mistake shall be treated as a mistake of fact rather than of law. Under Section 90 stated consent must be freely given by a natural and sober person so situated as to be able to form a reasonable opinion upon the matter to which he consents. Consent must not be obtained by force, threats, inducement, nor deception. Also, Section 90(c) stated that consent is not an actual consent if the person under 12 years old is giving the consent unless the contrary appears in the context, for example, Section 375(f) and Section 300 exception 5. Rape was defined in Section 375 whereby when a man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman. If a man has committed sexual intercourse with a girl under 16 years of age with or without her consent, the man is still considered to commit the act of rape stated in Section 375(g). In applying the aforementioned provisions and cases to the current case, Aral was led to imperfect information. In virtue of Section 79, an underage girl in an alleyway filled with prostitutes at night is very uncommon. Aral saw the girl he thought was older due to her physique appearance; thus, in good faith, she led Aral to think she was older. The girl had known Aral was looking for prostitutes, and she had approached him when Aral stopped his car by the side of the road. This is one of the reasonable grounds as to why Aral had thought that the girl was not underage, but he was misled with false facts. Hence, the act done by Aral may be defined as a mistake of fact. This misleading information continued when she had come up to Aral’s car and clarified that she was a prostitute.

The question also shows that Aral’s action of going to prostitution is justified by the law. This is similar in the case of Abdullah v Regina, as Murray Aynsley CJ pointed out the idea is justified by the law in the penal code that an act only acquires its criminal character by being forbidden by law and if the law does not forbid it thus, it is allowed. Alas, in Penal Code, there is no actual law that explicitly says that prostitution is against the law. Sections 372 until Section 373 that are associated with acts of prostitution only. The Penal code only defines prostitution in Section 372(3), whereby prostitution is an act of somebody selling their body for sexual gratification, whether in money or in-kind, and “prostitute” shall be construed accordingly, however, this does not apply in a state that applied Syariah Law. Hence, the act of Aral searching for a prostitute is justified by the law. However, in virtue of Section 375(g) even if there was ‘consent’ on the girl’s behalf which led to him to think that she was older and she did not express nor mention she is underage, Aral sexual intercourse with the girl is still not justified by law as it was his own negligence and stereotypical mindset that had led Aral in this situation. Hence, the act of sexual encounter with the girl, even with her consent, Aral is still liable for rape in virtue of Section 375(g). In conclusion, Aral is liable for the defense of mistake under Section 79 as he had reasonable grounds to believe the girl was much older than she really was. However, if Aral is to be liable for the offense under Section 375(g) and if he is to be punished under Section 576; thus, Aral can use the defense under Section 79 to reduce his liabilities from the charges he had been convicted of....