Criminal Notes PDF

Theories of Punishment Retribution - Punishment as an institution is justified because of a person’s wrongdoing - Only guilty people shall be punished - Punishment of the guilty does achieve something good in that it is a key component of justice. - Punishment of the guilty is es...

Theories of Punishment Retribution - Punishment as an institution is justified because of a person’s wrongdoing - Only guilty people shall be punished - Punishment of the guilty does achieve something good in that it is a key component of justice. - Punishment of the guilty is essential in marking society’s disapproval of the offender. - Eg : Death penalty for murder, fines Deterrence - The aim is the reduction of crime in the interests of society at large. - Concept of deterrence has two distinct strands. Special, specific or individual deterrence involves the imposition of a punishment that will be sufficient to deter the individual from behaving in a criminal way in the future. - General deterrence is based on the idea that the imposition of punishment on one person will operate to send a message to others that they should not act in the same way. - Punish people to reduce crime - Less likely to have great impact in areas such as crimes of passion. - Eg : Death penalty for drugs offences and armed robberies, whipping, fines Incapacitation - The goal of crime prevention. - It is not focused on deterring the individual offender, rather it is based on the idea that some people pose such a serious risk of further offending that they should be locked away from society or otherwise incapacitated. - Based on the assessment of the risk that the person poses of further crime. - Assessment may be actuarial (based on statistical models reflecting previous behaviour) or clinical (based on the assessments of psychiatrists and psychologists) or both - Criticism is that we lack the capacity to accurately predict future wrongdoing. - Eg : Preventive detention Rehabilitation - “The only question for the court should be whether the person had done the act in question, it should then be for the treatment experts to identify the causes of the behavior and determine the best treatment of the person.” Reparation and compensation - Criminal law is not primarily geared towards compensation of individual victims - CPC does permit the courts to make orders for the offender to pay compensation. - Reparation is a broader idea than compensation. It connotes the offender doing something to repay the community for the harm caused. Definition of Crime - Crime is made up of three ingredients (actus reus, mens rea and absence of a valid defence) - A crime must be followed with punishment. An act that was not enforced with punishment in regard to the fulfilment of said act, is not a crime. Elements of a Crime 1. Actus Reus - Section 33 of the Penal Code - The word “act” denotes a series of acts and a single act - Section 32 of the Penal Code - Meaning of “act” extended to include illegal omissions - Section 43 of the Penal Code - define illegal as “applicable to every thing which is an offence, or which is prohibited by law, or which furnishes ground for a civil action.” - Act must be voluntary and must be free from external causes. - There can be no crime without an act (mens rea without actus reus) - Burden of proof - beyond reasonable doubt Act - Not defined in the Penal Code - The “Act” varies depending on the crime, with some definitions of crimes describing the act with greater precision than others. Example : - Rape, where the act is described as having sexual intercourse with a woman without her consent. - Murder, where the act is left undefined, and simply refers to “the act by which death is caused.” Accordingly, the mode of killing used by D is immaterial so long as it caused V’s death. Omission - Although a vast majority of crimes are based on acts and not omissions, there are a few exceptional instances where omissions occurring under specified conditions may also incriminate the accused. - Illegal omissions are tantamount to positive acts only if the omission in question produces an effect. - Refer to Section 32 and Section 33 of the Penal code. - Section 43 - everything which is an offence, or which is prohibited by law or which furnishes ground for a civil action and a person is said to be legally bound to do whatever it is illegal in him to omit - Section 187 - Omission to assist public servant when bound by law to give assistance Failing to act when the omission is an offence - Refers to when omissions are a criminal offence under the Penal Code - S.187 of the Code makes it an offence for persons who are bound by law to render assistance to public servants in the execution of their public duty, to intentionally omit to give such assistance. - Lee Sai Yan v PP - The accused was a site engineer who did nothing to prevent a deceased from entering a bored hole which needed cleaning. The deceased, who wore no breathing apparatus, was lowered into the deep hole and died due to asphyxia. The accused was charged with facilitating a crime under section 34(9) of the Factories Act 1973. Failing to Act when prohibited by law - “Prohibited by law” includes omissions which are expressly made offences, but the term is not restricted to these offences. - D Souza v Pashupati Nath Sarkar - The defendant was a captain of a ship where a junior engineer fell sick. Although there had been requests to transfer the sick man to Calcutta, the defendant made no efforts to do so. Later, the crewman died, and the defendant was charged under section 304A of the Indian Penal Code and Section 190(b) of the Merchant Shipping Act. - The captain’s failure constituted an illegal omission since he had breached his statutory obligation under the relevant merchant shipping legislation to take all possible steps to arrange for the best treatment to be made available to a sick person on board his ship in order to preserve his life. - Although the legislation did not make the captain’s failure an offence, it did legally prohibit such a failure. Failing to act which furnishes ground for a civil action (duty arising from creation of a dangerous situation) - There must be a duty for the accused to act. - Four different situation where such a duty may arise : Special relationship - When there is a special relationship between the defendant and the person injured by the defendant’s omission. - Where there was a duty when a person is helpless and unable to look after himself - Infants, old people, etc. Om Prakash v State of Punjab - The accused husband starved his wife by omitting to feed her and denied her permission to leave the house. He breached his duty to provide R v Gibbons & Proctor - The neglect by a father of a child living with him may be so great, even though he provides the funds for the child’s maintenance, as to amount to murder, if through neglect the child dies.  Duty voluntary assumed - - Even if there is no special relationship, a legal duty to act will be created if any person voluntarily assumes responsibility for another, such as a physically and mentally infirm adult who is incapable of looking after himself or herself. - Civil law imposes a legal duty to act in such a case even when the defendant and person injured by the omission lack blood ties. R v Instan - The accused lived with her 73 year old aunt. After she developed gangrene in her leg, she could not fend for herself, move or summon help. Only the accused knew of her state but did not give any medical assistance. The accused was charged with manslaughter. - Held that the accused was the only person who knew of her condition, therefore through the instrumentality of the accused, a duty can be voluntarily assumed. - Duty assumed by contract R v Pittwood - A man might incur liability from a duty arising from a contract - The accused was a railway gatekeeper omitted to shut the gate shut to the railway tunnel. As a result, a car crossing the line was hit by a train. - It was under the contract where the accused was under a duty to keep the gate shut at material times in order to protect the public. Hence, he has breached such duty by omitting to do so. Duty from the negligent creation of a dangerous situation R v Miller - The accused lit a cigarette, fell asleep and then dropped the cigarette onto the mattress. He woke up later and saw that the mattress was smouldering. He simply continued sleeping and the house later caught fire. The accused was charged with arson. - A person would commit the actus reus of the offence if, having accidentally started a fire which created a risk of damage to property, he became aware of what he had done before the resultant damage was complete, but failed to take steps within his power to prevent it Benoy Chandra Dey v State - The accused was convicted of a negligent act causing death for failing to switch off the electrical current flowing through an uninsulated wire connected to his house.  R v White - The accused put potassium cyanide into his mother’s drink, intending to kill her. However, the mother then died from a heart attack and not the poisoning. - Held that the accused was only convicted of attempted murder. The death occurred was not caused by his conduct, thus the element of actus reus was missing. Voluntariness - A fundamental principle is that where the physical elements of the crime include conduct (whether an act or omission), such conduct must be voluntary. - If the conduct is involuntary, the accused cannot be held criminally liable for the crime charged. - Involuntary omission is when a person fails to perform an act which was legally required of him or her because he or she was incapable of performing the act. Involuntary Conduct External Causes - such as physical compulsion, reflex movements of external origin Accused’s own fault - The law will NOT protect the accused if the conduct is caused by his own fault R v Bailey - The appellant was convicted of wounding with intent and later claimed the defence of automatism caused by hypoglycemia as a result of failing to take food after a dose of insulin. - The defence does not apply to induced incapacity - **Automatism defence does not exist in the Penal Code Sinnasamy v PP - There was no discoverable motive for the killing of a 21 month child. The appellant maintained that he had no recollection of the act or why he did it. The defence being applied was automatism. - Held that irresistible impulse per se is not a defence, and can only be a defence when it is proved to have been the result of insanity in law. Disease of mind - Defence under unsoundness of mind under Section 84 of the Penal Code, where the involuntary act is resulted from a mental impairment.  2. Mens Rea (Fault) - Mens rea means the state of the mind as to the consequences of the act. - Can be inferred from the facts and circumstances of the case. - Mere foreseeing or knowing the consequence is not equivalent to intending the result. - The intention must be voluntary. - INTENTION - Not defined in the penal code. - Intention should be extended to cover cases where the accused knew that his or her conduct would, in the ordinary course of events, be absolutely certain to produce a result. - The one object for which the effort is made - Under the Indian Penal Code, it denotes “a purposeful doing of a thing to achieve a particular end.” - Intention should be extended slightly to cover cases where the accused knew that his or her conduct would, in the ordinary course of events, be absolutely certain to produce a result. - “When the doer of an act knows that his act will result in death, he should have been deemed to have intended to cause death.” Hyam v Director of Public Prosecutor - The defendant, Hyam had been jealous of her ex’s new fiancee, and she poured petrol through Booth’s letter box and ignited it. The resulting fire killed two children. Hyam claimed that she only intended to frighten the fiancee and not intended to kill anyone as the mens rea of murder required. - Held that intention could exist where the defendant knew there was a serious risk that death or serious bodily harm will ensure from his acts and he commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as a result of those acts. (TLDR A person is said to have intended a consequence if he knew that the consequence has a high possibility of happening as a result of his act even though he did not intend the result initially.) R v Maloney ( i dun get this case brb ) -  PP v Tan Buck Tee - Held that the accused must be proven to have the intention to cause harm and death. He stabbed the victim 7 times, 2 times to the heart and liver. There must have been an intention to kill that person. KNOWLEDGE - Undefined in the Penal Code - Denotes awareness of certain facts with absolute conviction or certainty as to their existence. - The individual must personally be aware that it exists, or almost certain that it exists. - Subject matter of knowledge can differ according to the context in which the term appears - For example, in Section 300(d) for murder, the D must know that his or her act must “in all probability cause death”, while in Section 321 for non-fatal assault under Section 321, D must know that he or she “is likely to cause hurt”. - Motive/Desire is immaterial to the concept of knowledge. - An accused would have still been convicted of knowingly causing harm even though he or she may have wished for the harm not to be caused. - Knowledge refers to ACTUAL knowledge, and not CONSTRUCTIVE knowledge. (Constructive knowledge is when you should have known, but you don’t.) - WILFUL BLINDNESS/IGNORANCE - Mental state where the accused was aware of an obvious means of acquiring knowledge but had shut his or her mind to those means. - In law, wilful blindness is equivalent to actual knowledge and will punish someone on the same basis as someone possessing actual knowledge - The concept of suspicion is used to distinguish between wilful blindness and actual knowledge. - An accused who knew with absolute certainty that the proscribed facts or circumstances existed possess the highest possible form of suspicion, and epitomises actual knowledge rather than wilful blindness. - The level of suspicion must be sufficiently high to lead a person to make further inquiries. A low level of suspicion which does not cause the person to investigate further will not constitute wilful blindness. - Wilful blindness is regarded in law as being the equivalent of “actual knowledge” and the law will punish the accused on the same basis as someone possessing actual knowledge. - This is because he knew of the high probability that the facts existed but had deliberately refused to confirm this belief. REASON TO BELIEVE - Defined in Section 26 as follows, “A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing, but not otherwise.” - A mixture of objective and subjective components. - A reasonable person possessing the accused’s knowledge of the relevant facts and circumstances would, by probable reasoning, infer or conclude about the nature of the thing concerned. - The subjective component is that it is the particular accused’s actual knowledge of the relevant facts and circumstances which is critical, and not the knowledge of a reasonable person. - Koh Hak Boon v PP - “The court must assume the position of the actual individual involved (that is, including his knowledge and experience), but must reason, (that is, infer from the facts known to such an individual) from that position like an objective reasonable man.” - Degree of knowledge falls short of absolute conviction, but still higher than speculation - Consequently, if a reasonable person could have arrived at two different views about the nature of the thing, the accused will not be found guilty of the offence. VOLUNTARILY - This term is defined in s 39 as follows: 'A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means he knew or had reason to believe to be likely to cause it. - Generic term covering three types of fault - intention, knowledge and reason to believe. - Whenever an offence uses this term, the prosecution need only to prove one of these forms of fault to convict the accused. RASHNESS - Left undefined in the Penal Code - Different from criminal blameworthiness for negligence, which is premised on an objective standard of conduct, for rashness, however, it is the accused’s actual knowledge of the risk of harm produced by his or her conduct. - Purely subjective - This form of fault is absent when the accused believed that he or she had taken precautions which completely removed any risk of harm, for then, the accused would not know of the risk. - Lim Hong Eng v PP - “Rashness” thus implies a disregard to the possibility of injury or death  - “Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused.” - Section 304(A) - ‘causing death by a rash act not amounting to culpable homicide' Dishonesty / Fraudulently - Section 24 - - Section 23 23. “Wrongful gain” is gain by unlawful means of property to which the person gaining is not legally entitled. 38 Laws of Malaysia ACT 574 “Wrongful loss” is the loss by unlawful means of property to which the person losing it is legally entitled. A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property - Section 403 Dishonest misappropriation of property 403. Whoever dishonestly misappropriates, or converts to his own use, or causes any other person to dispose of, any property, shall be punished with imprisonment for a term which shall not be less than six months and not more than five years and with whipping and shall also be liable to fine. - Section 25 “Fraudulently” 25. A person is said to do a thing fraudulently if he does that thing with intend to defraud, but not otherwise.  3. CAUSATION - Causation is independent of mens rea - The law uses the concept of causation to determine whether the accused’s conduct was sufficiently connected with the proscribed harm to warrant holding him or her accountable for it. - The purpose of establishing causation is to ensure that only those who are found criminally responsible for the death of a victim may be punished for such a serious consequence. - There is a two step enquiry to assist the determination of casual blameworthiness. - First, is to establish factual causation, which is whether there was any physical or factual connection between D’s conduct and V’s death. If no such connection is established, the D is acquitted. - If there was a factual connection established, we move onto the second step - The second step is legal causation, where it is considered whether the connection was sufficiently strong enough to justify imposing criminal responsibility. - Causation only focuses on the conduct of the D, and they are not concerned with the physical forces or conditions that might have displaced human causal responsibility. Factual causation - just need to establish a relation between the conduct and the death - The enquiry does allow for V’s death to be the result of a combination of causes. - As long as D’s conduct was necessary to the production of death, factual causation is established. - No quantitative exercise is conducted at this level. It is impossible to state which cause contributed more to the death, thus the question of which cause was more significant only arises at the second stage of imputable causation and not at this stage. - D’s omission should be deemed to have a causal effect if D was under a legal duty to act and where performing his or her duty would have prevented the effect. But-for test - If V’s death would have occurred without D’s conduct - If yes, there is no factual causation established - If no, there is factual causation established. - For pre-existing illness or injury that would have killed the V eventually, D cannot deny having factually caused V’s death. Refer to S.299, Explanation 1, of the Penal Code ( A person, who causes bodily injury to another who is labouring under a disorder, disease or infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.) Legal causation - An enquiry into moral blame and responsibility Substantial cause test - R v Smith - D had stabbed V who was then rushed to the hospital. On the way, V was dropped twice and at the hospital he was given improper treatment which affected his chances of recovery. The question was whether the original wound inflicted by D on V was “still an operating cause and a substantial cause” of V’s death. - Australian courts have adopted this statement, “The question to be asked is whether an act or a series of acts (in exceptional cases, an omission or a series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event.” Foreseeability test - Received less recognition in England and Australia than the substantial cause test, but is more widely received in Indian courts. - “When D acted in the way he did, did he actually foresee or could have reasonably foreseen V’s death as a likely consequence of such conduct ?” is the question to be asked by the courts - Both objective and subjective. Can cover cases where the particular accused had specialised knowledge enabling him or her to foresee a result which another person might not when it comes to the subjective aspect. - This test embodies the quality of reasonableness. - The foreseeability of harm is not to be considered in isolation but in the context of all the circumstances prevailing at the time which an ordinary person would have taken into account. - The notion of reasonable foresight enables the court to exempt D in a case where his or her conduct led to an unusual or unpredictable result. - Applies the notion of reasonable foresight, where this enables the court to exempt D in a case where his or her conduct led to an unusual or unpredictable result. Apply both tests and then choose one that favours your argument in exams Intervening causes There are cases where a subsequent causal act or event occurs which raises the question, whether or not the accused’s conduct continued to play a causal role or merely formed part of the factual background. - In cases where both the initial and intervening cause were committed by the accused, the case should simply be dealt with by concluding forthwith that the accused’s conduct had substantially contributed to the victim’s death. Shaiful Edham bin Adam v PP - The appellants had inflicted stab wounds to the victim’s neck which rendered her unconscious, thinking her to be dead, they had thrown her into a canal. - The autopsy report showed that her death was by drowning, but the victim would have died from the neck wounds over a prolonged period of time. - The COA explained that the appellants were causally responsible as the neck wounds were still an operating cause and a substantial cause, and death can properly be said to have resulted from them, albeit that some other cause of death was also operating. - The victim’s death was a combined effect of the stabbing and the drowning, the court need not to treat this case using the issue of intervening causes 1. Medical negligence - Generally, when V dies while undergoing medical treatment to cure an injury caused by D, the issue is whether the treatment can be regarded as having broken the causal connection between the injury inflicted by D and V’s death. Where there was proper medical treatment : - The governing principle is that D is causally responsible for V’s death on every occasion even when the injury inflicted by D on V was non-fatal. - The medical treatment was a reasonably foreseeable consequence of the infliction of the wound. Where there was improper medical treatment but was performed in good faith : - Emperor v Abor Ahmed : - “If death results from an injury voluntarily caused, the person who causes the injury is deemed to have caused death, even if medical treatment was given but was not the proper treatment, provided that it was administered in good faith by a competent surgeon.” - The rationale for holding D causally responsible for V’s death is expressed through the foreseeability test. The test will assert that D ought to have foreseen that V might die from some error of clinical judgement which could be made by competent medical staff. Where there was improper medical treatment due to negligence of the medical practitioner : - The gross nature of the medical negligence would render it abnormal or not reasonably foreseeable on D’s part thereby absolving him or her of causal responsibility for V’s death. - Can be further contended that for the medical negligence to break the causal connection between D’s conduct and V’s death, the negligence must be so gross as to be sufficient in itself, apart from the original wound, to have caused V’s death.  - Applied in Nga Ba Min v Emperor, where the unskilful medical treatment which V received at her village was held to absolve D of causal responsibility for her death. Evidence was led that the original wounds were not serious and under ordinary circumstances would have completely healed in a fortnight. 2. Intervention of the victim - Contributory negligence is immaterial as a defence in criminal law. - However, it can amount to breaking the causal connection between D’s conduct and V’s death - V’s ignorance in causing his or her own death P.P v Suryanarayanarmuty - D met N in a house and gave some poisoned sweetmeat to N with the intention of killing him. Not liking its taste, N threw away the remainder of the sweetmeat on the spot. V, a 9 year old child who lived in the house where the meeting occurred, retrieved the sweetmeat, ate it and died of the effects of the poison. - The court held D causally responsible for V's death by relying on the following illustration: For instance, if A mixes poison in the food of B, with the intenti'on of killing B, and B eats the food and is killed thereby, A would be guilty of murder, ~ven though the eating of the poisoned food, which was a voluntary act of B, intervened between the act of A and B 's death. So, here the throwing aside of the sweetmeat by [NJ and the picking and the eating of it by [VJ cannot absolve the accused from the responsibility of his act. - Both tests can be applicable to reach the same conclusion in this particular case. - V under pressure to take action causing his or her own death - The victim dies as a result of taking steps to escape from D’s attack. - Halsbury’s Laws of England - “Where a person attacks or threatens to attack another and compels the person attacked by bodily force, or induces him by a well grounded apprehension of immediate serious violence, to do some act which directly results in his death, the person attacking or threatening to attack is guilty of murder.” - R v Roberts - D was driving V from a party when he made sexual advances towards her and said that he had beaten up girls who had refused him. - V jumped out of the moving car and was injured. The court held that D had caused her injury. - The test was “Whether the injury was the natural result of what the alleged assailant said and did in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing ?” - R v Pitts  - V had drowned when he slipped into the river in an endeavour to escape from D’s murderous assault. The court instructed the jury to regard D as having caused V’s death if they were satisfied, not that V’s method of escape was the only means open to him, but that it was such a method as a reasonable person might take. - V’s voluntary contribution to his or her own death V’s decision to take the action which leads to their death is entirely on their own accord and uninfluenced by D’s conduct. - Nga Moe v The King - D had inflicted minor bead injuries on V which had healed after ~ week in hospital. As V had a fever, he was advised by his doctor to remain in hospital until it had subsided. V discharged himself'from hospital against this advice. He died a few weeks'. later from a brain abscess ·which had developed below one of the injuries inflicted by D. Medical evidence revealed that V suffered from chronic malaria which lowered his power of resistance and contributed to the formation of the abscess.89 It was medically opined that had V remained in the hospital as advised, the abscess 'would not have formed and he would have fully recovered - D was acquitted of the charges, where it was held that there is no evidence that the appellant knew it at the time he struck the blow, that the deceased was in such a bad health as to lower his power of resistance to a septic condition. The appellant cannot be said to have caused it, or which would have done so except in conjunction with other circumstances which no reasonable man could foresee. - Application of the foreseeability test R v Blaue - D stabbed V in the chest resulting in her losing a large amount of blood. Unknown to D, V was a Jehovah Witness and refused blood transfusions on religious beliefs. D argued that the causal chain between his stabbing and her death had been broken by V’s unreasonable refusal to have the transfusion - The court rejected the foreseeability test, and apparently applied the substantial cause test, noting that the stab wound inflicted by D was still operating at the time of V’s death and had significantly contributed to it. - V having unusual sensitivity which contributes to his or her own death - D has injured V who, unknown to him, has a pre-existing condition which renders her more vulnerable to death. - The eggshell skull principle was developed to deal with cases of pre-existing conditions. - It dictates that D takes V as he finds her so that it is immaterial whether D foresaw or could have reasonably foreseen the antecedent condition of V. - Relates to the substantial cause test as D’s conduct will inevitably be regarded as a substantial contribution of V’s death having set into motion the fatal effects of them pre-existing condition. 3. Intervention of a third party - Whether the intervening conduct of a third party breaks the causal connection between D’s conduct and V’s death ? PP v Suryanarayanamurty - The court had explored hypothetical cases, including one which was that N had discovered that the sweetmeat was poisoned and then gave it to V to eat, it is to his act that V’s death would be imputed to and not to the accused’s. R v Michael - D had instructed X to feed D’s infant with a spoonful of medicine which was actually poison from a bottle every night. X had placed the bottle on a mantelpiece. The bottle was discovered by her own five year old child who gave half of its content to the infant. D was convicted of murder. - D was causally responsible for V’s death despite the intervention of a third party. This was because of the description of the third party as a non-responsible actor, namely a person whose conduct was “wanting of discretion.”. The second is a subscription to the foreseeability test as is evident in the second sentence of the passage. (“The Indian courts may hold that a person who keeps poison at a place where others might have access to it must be taken to know that death is likely to result from the act.”) Ng Keng Yong v PP - The appellants were convicted of causing death by a negligent act under Section 304A of the Penal Code. - They were Singapore naval personnel navigating and steering a patrol boat which collided into a merchant vessel with the result that several sailors on the patrol boat were killed. - The appellants admitted negligence but contended on appeal that the merchant vessel were also negligent because they could have avoided the collision by making a bold alteration to its course by manual steering instead of minor alterations using autopilot. - Accordingly, the causal connection between the appellant’s negligence and the deaths had been broken by the merchant’s vessel negligence. - His honour held that the proper test was for the court to determine whether the appellant’s negligence had continued to contribute substantially to the result or whether the third party’s contributory negligence had such causative potency as to negate the finding.  - Here, his Honour rejected the appellant’s contention and upheld the conviction. R v Pagett - D had shot at armed police in a dark area while using V as a shield. - V was killed when the police returned fire. - D was causally responsible for V’s death on the ground that a reasonable act performed for the purpose of self-preservation could not be viewed as breaking the causal connection between D’s conduct and V’s death if such a reasonable act was in response to D’s own act. - The application of the reasonably foreseeable test in this circumstances is for the police to have returned D’s fire by way of self defence. 4. Where a natural event contributes to V’s death - Instances where D has injured or placed V in a perilous position after which some event of nature intervenes and kills V. - Must consider whether the intervening event was reasonably foreseeable. - If it was, the courts must then go on to decide whether V’s death was a reasonably foreseeable consequence of such an event. - Should both event and the V’s death be foreseeable, D’s conduct will be regarded as having caused the death. - TLDR, an abnormal event may break the causal connection between D’s conduct and V’s death. Nandkumar Natha v State - D had set V alight with kerosene causing burns to 30% of her body. V was hospitalised but on account of her extensive burns, she developed complications including septicaemia and died. - The court held D causally responsible for V’s death. Held that it was only when the intervening cause was totally unexpected or unrelated to the original injury caused by the act of the accused that one can possibly contend that the death was not the direct or proximate result of the act of the accused. In re Venkatachalam Chetty - D had poisoned V and left him unconscious in a field overnight and V subsequently died of pneumonia. - The court acquitted D of the murder after finding that it had not been established that the pneumonia was in fact caused by the exposure. - Hence, V contracting pneumonia was not reasonably foreseeable, being an extraordinary event which broke the  causal chain between D’s conduct of poisoning him and his death. Hallett v R - D had assaulted V on a beach and left him unconscious by the edge of the water. V drowned when the tide rose. The court held “If the deceased had been placed in a situation safe from the ordinary operations of the sea and had been engulfed by an extraordinary tidal wave as the result of an earthquake in the sea it may be that the earthquake and not the act of the appellant would be regarded as the cause of death. But we cannot regard the ordinary operations of the tides at Tumby Bay as being such a supervening cause.”  CONCURRENCE PRINCIPLE - As described in Fowler v Padget, the intent and the act must both concur to constitute a crime, this is a fundamental principle. - The rationale is that a person cannot be punished for his or her evil thoughts alone - No provision in the Penal code. Same Transaction Approach - A series of distinct acts will be regarded as forming part of a larger transaction Thabo Meli v R - the fault element was present at the earlier transaction, but absent after - The appellants acted upon a preconceived plan first to kill V then make the death look like an accident. They struck V on the head, then believing him to be dead, rolled him over a cliff and fake the scene to resemble an accident. - Medical evidence revealed that the death was caused by exposure to the elements and not the head wounds. - Appellants argued that the concurrence principle had not been met since the blows which were intended to kill did not kill, and since their acts which did kill were not accompanied by murderous intent since they thought they were handling a corpse. - Privy Council rejected the argument : It was one transaction all the way. All these acts were set out to be done in order to achieve their plan - Both acts were in succession, and is considered to be one serie of acts. Shaiful Edham bin Adam v PP- the fault element was present at the earlier transaction, but absent after - In that case, the appellants had inflicted several wounds on V before disposing what they thought was a corpse into a canal. The autopsy showed that V 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. In dismissing the appellants' appeal against their convictions for murder, the Court of Appeal quoted the above passage in Thabo Meli. - “A series of distinct acts may in some circumstances be regarded as forming part of a larger transaction, and it will suffice if the accused if the accused had the necessary mens rea at some point in the transaction, even if it did not coincide precisely in time with the actus reus, the act which caused death.” Fagan v Metropolitan Police Commissioner - fault element was present later in the transaction - D had unknowingly driven his car onto a police officer’s foot. The court held that since the physical element of assault continued until D drove off the foot, the fault element concurred with the physical element when D became aware of the situation and refused to move the car. The Causation Approach - As the initial act was performed with the requisite fault element, there is no further problem and D is guilty of culpable homicide. A subsequent act by D may also have been a cause of death but this is not an obstacle to criminal liability since the law recognises that there may be more than one cause. - The causation approach is attractive in its ability to satisfy the concurrence principle without straining the principle in any way. The approach finds D guilty of culpable homicide on the basis that his or her initial act was itself a substantial cause of death. - The concurrence principle is satisfied so long as that act was done with the requisite fault element, and Dis guilty of the offence charged even though some later act was also found to have been a substantial cause of death. The Moral Congruence Approach - An advanced form of the same transaction approach, where it explains why the series of acts should be regarded as forming the same transaction. - Moral congruence is established when the subsequent acts were done to further the accused’s initial wrongdoing such as by trying to conceal the crime or to avoid detection. - Moral congruence may not be established under this approach if the subsequent acts of the accused were of quite a different moral character from his or her initial wrongdoing Muhammad Radi v PP - D and V went to the vacant teachers’ quarters to engage in sex and drug-taking. A quarrel ensued and D delivered several blows to V’s head with a stick. Believing her to be dead, D concealed her body by pushing it into a tight space under a kitchen ledge and covered it with a canvas sheet. - Due to the advanced state of the body, the pathologist could not determine conclusively whether death had occurred as a result of the blows to the head or by asphyxiation. - COA rejected D’s contention that the concurrence principle had not been met, on the ground that the appellant’s act was intimately connected and all the acts must be treated as one transaction  STRICT LIABILITY In other criminal offences, the prosecution needs to show that the accused have the Actus reus and Mens rea. However, for SL, it is sufficient to prove a guilty act (actus reus). The accused will be held liable if the actus reus is fulfilled, notwithstanding the fact that mens rea has not been fulfilled. In cases where the presumption of mens rea is rebutted, there is no need to show that the accused acted intentionally or knowingly. Example of a section under SL : Section 294 PC: Whoever, to the annoyance of others— (a) does any obscene act in any public place; or (b) sings, recites or utters any obscene song, ballad or words in or near any public place, shall be punished with imprisonment for a term which may extend to three months or with fine or with both. - Here, there is no mens rea, as long as you have done it (actus reus) hence you’re liable. Presumption of Mens Rea Approach - Allows a court faced with a statutory offence that does not employ a specific fault element to nevertheless presume that an accused must be proved to possess mens rea in order to be convicted of a criminal offence. - Even if the provision didn’t state that they needed mens rea, presume that it IS needed unless they explicitly say they don’t need it - Unless for strict liability offences - where proof of mens rea is not required - even if someone didn’t intend to commit the crime, they can still be convicted. - eg traffic crimes PP v Teo Kwang Kiang - A vegetable importer was charged under the Singaporean Environmental Public Health Act for having in his possession snow peas intended for human consumption which were unfit for that purpose because they were contaminated with a chemical in excess. - The trial judge acquitted him on the ground that he had no control over the vegetables that were sent to him and he had no knowledge of the contamination. - The acquittal was reversed on appeal and it was held that the presumption of mens rea was displaced by the fact that the offence was meant to protect the public. Sweet v Parsley - There has been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did - When a section is silent as to mens rea, there is a presumption that, in order to give effect to the Parliament’s will, we must read words appropriate to require mens rea. Gammon (HK) Ltd v AG of HK PC 3 elements required to establish offence under strict liability - rebutting the presumption of mens rea 1. Purpose / Object of provision is for public welfare 2. Imposition of strict liability would effectively achieve objectives of provision 3. The offence must be quasi-criminal in nature 1. PUBLIC WELFARE - Relates to matters of social regulation such as public health, safety, traffic regulations P.P v Lim Chin Aik - Where the subject matter of statute is regulation for public welfare of particular activity, it can be inferred that legislature intended such activities should be carried out under conditions of strict liability Sweet v Parsley - Those who undertake various industrial and other activities, especially affect life and health of citizens, may be liable to statutory punishment regardless of knowledge / intent. Mohamed Ibrahim v PP - The appellant who could not read English had in his possession 65 copies of the book, where he was charged for having in his possession for purposes of sale 65 obscene books in contravention of section 292 of the Penal Code - Argued that he had no knowledge of the contents of the books - Held that the objective of Section 292 of the Penal Code is to protect those members of the public, thus the section must be strictly interpreted and mens rea are not of the essence of the offence. PP v Osman bin Apo Hamid & Anor - Respondents were found carrying bags of rice in excess of that allowed by the permits which they produced. They were detained and charged. Both respondents admitted knowledge of the fact that they carried 130 bags of rice but they denied knowledge of the number allowed in permits.  - Held that the by looking at the statute, it must have intended to be of strict liability as the purpose of the regulation is to not offset the balance of distribution of commodity - it was a matter to protect public interest PP v Phua Keng Tong - The subject matter of the Act in contention is the prevention or prohibition of disclosure of official documents and information and does not deal with public safety or public welfare - No presumption that mens rea can be displaced, even though the section is itself silent to the requirement of mens rea. 2. EFFECTIVENESS IN PROMOTING STATUTORY OBJECTIVES PP v Lim Chin Aik Accused was convicted of contravening S6(2) Immigration Ordinance 1952 by remaining in Singapore after he had been declared a prohibited immigrant. There was no evidence that the prohibition order had ever been brought to his attention. Not enough to prove relevant statue is of public purpose Pertinent to inquire whether putting D under strict liability will assist in enforcement of regulations Strict liability is no intended if person’s conduct could not affect observance of law There must be something he can do to promote observance of regulations Accused could not do anything to ensure he complied with regulations because the information regarding the prohibition had not come into his knowledge Even though strict liability is imposed, it would not help anyway in achieving objective of the provision as he had done everything that he can do Melan Abdullah - Accused was chief editor of a group of newspapers. He published an article relating to abolition of Tamil & Chinese medium schools. He was convicted of offence of publishing seditious publication contrary to S4(1)(c) Sedition Act. Accused had taken all necessary precautionary measures & not failed in higher standard of care & caution required of him strict liability could not be imposed He had done everything that he can do to prevent anything contrary to the statute, there was nothing more than he can do Imposing strict liability in this situation will not help in achieving public purpose 3. QUASI-CRIMINAL IN NATURE B v Director of Public Prosecutor - B, a 15-year-old boy, repeatedly asked a 13-year-old girl to perform oral sex with him. He was subsequently charged with inciting a child under age of 14 to commit act of gross indecency, contrary to Indecency with Children Act 1960 The offence will cause a heavy punishment heavy strict liability not imposed Sherras v De Ruizen - Presumption of mens rea can be displaced if offences are not criminal in any real sense but are acts which in public interest are prohibited under a penalty Is it fair to punish a person without taking into consideration the reason why he did such thing? Did he have the mens rea? Sweet v Parsley (1969) ➔ Facts: The appellant, a teacher, took a sublease of a farmhouse just outside Oxford. She intended to live in the house and travel into Oxford each day. This proved impracticable and she decided to reside in Oxford and to let rooms in the house. Her tenants shared the use of the kitchen. The appellant retained the use of one room for herself and visited the house occasionally to collect letters, to collect rent from the tenants, and generally to see that all was well. The only form of control which she exercised over her tenants (other than collecting the rent) was to complain if they made excessive noise late at night on the infrequent occasions when she stayed overnight at the house. On 16 June 1967, whilst she was in Oxford, the police searched the house and garden and found receptacles containing cannabis and LSD hidden in the garden and cigarette ends containing cannabis in the kitchen. The Divisional Court dismissed her appeal against conviction of being concerned in the management of premises which were used for the purpose of smoking cannabis, contrary to s 5(b)a of the Dangerous Drugs Act 1965, on the ground that she had been concerned in the management of the premises, although the justices found that she had no knowledge whatever that the house was being used for the purpose of smoking cannabis or cannabis resin. ➔ Held: The appeal would be allowed, because no offence under s 5(b) of the Act had been disclosed, since— (a) (per Lord Reid, Lord Wilberforce and Lord Diplock) for the offence under s 5(b) to be committed it must be shown that it was the appellant's purpose that the premises be used for smoking cannabis; ie that she intended that the premises be so used → it wasn’t the appellant’s purpose. ➔ (b) (per Lord Morris of Borth-y-Gest and Lord Pearce) Section 5(b) required that, before the appellant could be convicted, she must be shown to have knowledge of the particular purpose to which the premises were being put → no knowledge. Example of SL: ○ Section 294: Does any obscene act or sings, recites or utters obscene songs. ○ Section 124K: Whoever, by any means, directly or indirectly, commits sabotage shall be punished with imprisonment for life. Definition of Sabotage → Section 130A: “sabotage” means— (a) an act or omission intending to cause harm— (i) for the interests of foreign powers or foreign organizations; (ii) to premises or utilities used for national defence or for war; or (iii) to the maintenance of essential services; or (b) knowingly producing defective materials, premises or utilities used for national defence or for war; ○ Section 130X: Whoever harbours, or prevents, hinders or interferes with the arrest of a member of an organised criminal group shall be punished with imprisonment for a term which may extend to five years, and shall also be liable to fine. ○ Section 375: A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman........... Absolute Liability: SL is used interchangeably with AL. SL are offences that there are still defence available to the accused although limited. In AL, there is no defence at all. How do we differentiate between those two? ○ Refer statutory provision: Wording such as there is no defence whatsoever for this particular offence, imply that it is an absolute liability. Rebutting Presumption How do we adopt an interpretation most favorable to the accused? ○ Presumed the provision (ex: section 294) requires mens rea. ○ What mens rea do we require? Intention or knowledge. ○ Once we presumed mens rea, then the accused can raise defence. ○ The presumption of mens rea broaden and helps the accused. Without it, the accused would not have defense or very limited if any. With presumption of mens rea, all defences are available to the accused and it makes a strict liability offence, seem like a normal offence. ○ Prosecution will not need to prove mens rea. Only prove actus reus. In court proceedings, it is presumed that mens rea exist, but it is also presumed that mens rea has already been established. Strict Liability Cases – ○ Arba’ei Othman v PP 7 CLJ 32 ○ Lim Chin Aik v Regina : ➔ Facts: The appellant who was born in China about the year 1900 after living in Singapore with his wives and children left Singapore in 1954 in circumstances apparently of some suspicion. At the beginning of 1955 he was living in the Federation of Malaya and he visited his family daily in Singapore, returning each night to the Federation. On the 28th May, 1959 the Minister acting under section 9 of the Ordinance made an order prohibiting the appellant from entering Singapore but there was no evidence at the trial from which it could properly be inferred that the order had in fact come to the notice or attention of the appellant. At sometime more than ten days before 29th June, 1959 the appellant began to live in Singapore. On 29th June the appellant was arrested and was duly charged under section 6(2) of the Immigration Ordinance and convicted on 27th August, 1959 by the Magistrate. On the High Court dismissing his appeal without stating any reasons he appealed by special leave to the Board. It was argued for the appellant in the absence of any evidence of the guilty intent of the appellant was fatal to the validity of his conviction (ii) if mens rea was an essential ingredient of an offence under section 6(3) of the Ordinance, then the onus of proof of its existence lay upon the prosecution. ➔ Held: The presumption is that mens rea or evil intention or knowledge of the wrongfulness of the act is an essential ingredient of every offence but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals and both must be considered. In this case the application of the rule that mens rea is an essential ingredient of every offence has not been ousted by the terms or subject-matter of the Ordinance and the appellant's conviction cannot stand. ○ PP v Koo Cheh Yew FC: ➔ Facts: In this case the accused persons were charged in the Sessions Court in Penang with being concerned in importing 6 pianos which being the products of South Africa were by law prohibited goods. They were convicted and they appealed to the High Court. In the High Court Arunalandom J. held that on the facts of the case the accused had no guilty mind and he therefore quashed the convictions. The Public Prosecutor then applied for a certificate to refer to the Federal Court certain questions of law of public interest. ➔ Remarks on mens rea: - Chang Min Tat FJ: Next we have to deal with the question of mens rea. There is a sharp difference of opinion in the High Court, H.S. Ong J. ruling that an offence under section 135(1)(a) is one of strict liability in which the prosecution did not have to prove the guilty mind of the accused, while F. Arulanandom J. was of the opinion that mens rea was an essential ingredient of the offence. He read, in our view correctly, a number of cases in which the courts had expressed an unwillingness to accept that an offence created by statute should be deprived of this mental element, unless the statute expressly said so. He also referred to Sweet v Parsley 2 WLR 470 in which the House of Lords held that when a person is charged with being concerned in the management of premises used for the purpose of smoking cannabis resin, it was essential for the prosecution to prove knowledge on the part of the accused that he knew the premises were used for that unlawful purpose. The decision of the Law Lords was based on the proper construction of the phrase "for the purpose of." But the basic question was whether the law as passed by Parliament had dispensed with the requirements of mens rea. - Dissenting judgment by Suffian LP: In this respect I agree with H.S. Ong J. in the unreported case already referred to, where he said, after discussing Fraley v Charlton: "I feel I must however follow the trend in our own courts where when proof of mens rea or knowledge is essential to a conviction this is specifically stated in the section or paragraph. I am not entitled to construe the legislation other than as it has been enacted in the absence of ambiguity, and accordingly, I hold that under section 135(1)(a) an intent to defraud the Government of any duties thereon, or to evade any of the provisions of this Ordinance or to evade any prohibition applicable to such goods is not required." ○ Ignorance of the law? Could not possibly have known/due diligence. Lim Chin Aik v Regina: In this case it is contended by the respondent that ignorance of the law is no excuse. It was said on the respondent's part that the order made by the Minister under the powers conferred by section 9 of the Ordinance was an instance of the exercise of delegated legislation and therefore that the order, once made, became part of the law of Singapore of which ignorance could provide no excuse upon a charge of contravention of the section. Their Lordships are unable to accept this contention. In Their Lordships' opinion, even if the making of the order by the Minister be regarded as an exercise of the legislative as distinct from the executive or administrative function (as they do not concede), the maxim cannot apply where it appears that there is in the State of Singapore no provision, corresponding, for the publication in any form of an order of the kind made in the present case or any other provision designed to enable a man by appropriate enquiry to find out what "the law" is. Difference between presuming mens rea and not presuming mens rea - Prosecution needs to prove mens rea and actus reus beyond reasonable doubt - In SL, prosecution does not need to prove mens rea, can just prove actus reus - In presumed mens rea, again prosecution does not need to be proven