CRIMINAL LAW I GLUP2054

1.0 Introduction & Criminal Liability

Definition of Crime

• A crime or offence is an illegal act, omission or event, • whether or not it is also a tort, breach of contract or

a breach of trust, • the principal consequence of which is that the

offender, if he is detected and it is decided to prosecute, is prosecuted by or in the name of the state and

• if he is found guilty is liable to be punished whether or not he is also ordered to compensate his victim.

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Definition of Crime…cont

• However, every crime has its own definition. For example, the definition of murder (S.300 of Penal Code) is different from the definition of rape (S. 375 of Penal Code) or cheating (S. 415 of Penal Code).

• A wrong is breach of a rule, it may be moral or legal according to whether the rule is one of morality or law.

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Definition of Crime…cont

• Legal wrongs may be civil or criminal.• Civil law is primarily concerned with the rights and duties of

individual among themselves, whereas criminal law defines the duties which a person owes to society.

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Definition of Crime…cont

• In general, no one can be obliged to sue for damages for a breach of contract or a tort, and a beneficiary cannot be forced to claim restitution of the trust property.

• On the other hand, where an offence has been committed, the wrongdoer is liable to punishment, which is very different thing from being ordered to compensate the victim of the wrong, and as a general rule a criminal prosecution may proceed although the victim has been fully compensated and desired it to be discontinued.

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The Elements of Crime• Generally, most legal systems adopt the

position that criminal liability is only justifiable if a person commits a prohibited act or causes a forbidden harm and his actions are accompanied by a blameworthy state of mind.

• A cardinal principle of criminal law is embodied in the maxim actus non facit reum, nisi mens sit rea – an act does not make a person legally guilty unless the mind is legally blameworthy

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The Elements of Crime…cont

• Thus, the general rule of criminal liability is only imposed if the two elements are in existence:

• a) actus reus – the conduct or action of the accused which produces or constitutes the forbidden act.

• b) mens rea – a blameworthy state of mind

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The Elements of Crime…cont• In brief, actus reus is the act, mens rea is the intention.• E.g. in murder case, the actus reus was act of killing (causing

the death) and the mens rea was the intention to kill.• In theft, the accused acted ‘dishonestly’ (actus reus) and with

the intention of permanently depriving another of the property (mens rea)

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The Elements of Crime…cont• However, in some exceptional offences the accused may be convicted

although his conduct was neither intentional nor reckless. • In other words, an accused may be convicted without the existence of a

blameworthy state of mind. • In such a case, he is liable to punishment in the absence of mens rea and is

said to be under strict liability.

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Actus reus

• As there are different actus reus for every crime, there is no specific definition of actus reus.

• It is necessary to refer to the definition of the offence charged in order to ascertain the precise nature of the prohibited conduct.

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Actus reus• Generally, the expression of actus reus is understood as meaning the act

(or omission or other event) indicated in the definition of the offence charged together with any surrounding circumstances other than the accused state of mind or defence, and any consequences, of that act which are indicated by that definition.

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Actus reus• Two types of crime:-• 1) Conduct crimes: where criminal liability is imposed because

the accused has done something that is prohibited by the law. These actions have no result.

• E.g: possession of drug. • E.g:Driving in a reckless manner – need no accident as a result,

it is still an offence.

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Actus reus• 2) Result crimes: the conduct of the accused caused a prohibited

result. • The conduct may or may not be a prohibited conduct. It must be

established that the conduct of the accused caused a prohibited result.

• E.g: Culpable homicide or murder, the result is death.

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Question??????

• Obtaining property by deception; result or conduct crimes?

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Actus reus

• An act is the most common basis of the actus reus. However, no comprehensive definition of act is provided in the Penal Code.

• Nonetheless, some words used may connote actus reus like ‘permits’, ‘appropriates’, ‘cultivate’, ‘abandon’.

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Actus reus includes circumstances

• Actus reus is not just made up by conduct only.• Sometimes it includes circumstances/ consequences/state of

affairs.• E.g: Theft – requires to be proved that accd dishonestly

appropriated property belonging to another. If the property was abandoned, no theft coz the property belonged to none.

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Question????

• Can a conviction sustain without actus reus? • Is it possible for a conviction to sustain in the

absence of mens rea?

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Actus reus must be proved• Mens rea may exist without an actus reus,

however, if the actus reus of a particular crime does not exist, the crime is not committed.

• E.g: Though A believes that he is appropriating V’s property he cannot be guilty of theft if the property belongs to no one.

• A intends to marry during the lifetime of his wife, but unknown to him, she is dead, he cannot be charged for bigamy.

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Actus reus must be proved…cont

• E.g: A makes statements which he believes to be false for the purpose of obtaining money, cannot be convicted of obtaining by deception if in fact the statement is true.

• A penetrate V with intent to have intercourse with her against her will, if in fact she consent?

• All of the above may only be brought under attempt to commit the crime.

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Deller (1952) 36 Cr App R 184

• D induced V to purchase his car by representing (inter alia) that it was free from encumbrances that is D had ownership and free to sell it. In fact D had mortgaged the car to a finance company and thus he is telling a lie.

• He was charged with obtaining with false pretence.

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Deller (1952) 36 Cr App R 184

• It then appeared that the mortgage document had been void in law due to technical reason, as such, the car is actually free from any encumbrances.

• “…quite accidentally, and strange as it may sound, dishonestly, the appellant had told the truth” at p 191.

• D’s conviction was therefore was set aside by Court of Criminal Appeal.

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Actus reus in Penal Code

• Section 33 of Penal Code only states that the word ‘act’ denotes as well a series of acts as a single act. An ‘act’ must also be broadly construed to include certain omissions to act as an ‘act’. The act done must also be a voluntary act.

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Actus reus in Penal Code

• Thus, an act must be:- 1) an act or series of acts; or 2) omission; and3) voluntary

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Omission• S.32 Penal Code – words refer to acts done extend also to illegal omissions.• S.43 Penal Code – word ‘illegal’:-

- everything which is an offence, or- prohibited by law, or- which furnishes ground for civil action

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Omission

• A person is said to be ‘legally bound to do’ whatever it is illegal in him to omit.

• Dytham [1979] – a police officer was held to be guilty of a common law misdemeanour when without justification or excuse, he failed to perform his duty to protect a citizen who was being kicked to death.

• In Shama [1990] 2 All ER 602 – accd was convicted for falsifying a document where he omitted entirely to fill in a form which it was his duty to complete.

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Omission• Thus, it is clear that Penal Code under s.43 provides no liability

for omissions to act unless the omission can be said to be illegal.

• E.g: a man can watch a small child drown in a shallow pool even though he could have saved the child with minimum effort.

• Q: What if the man is the child’s father?

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Omission• Three circumstances where omission is illegal:-1) failure to act which is an ‘offence’ – e.g. s.289 Penal Code

‘whoever knowingly or negligently omits to take such order with any animal in his possession…to guard against probable danger to human life…shall be punished…’

• Case: Lee Sai Yan v. PP (1980, unreported), accd, a site engineer did not prevent the deceased to enter a bored hole without breathing apparatus.

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Omission

2) Failure to act which is ‘prohibited by law’• Prohibited by law may or may not be an offence. If it is an

offence, it will fall under the first category.• E.g of prohibited by law but not an offence:-

i) the duty to provide maintenance to children.ii) duty to send children to school (previously).

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Omission

3) Failure to act ‘which furnishes ground for civil action’• Omission furnishes ground for civil action if the accd under duty

to act.• Duty to act arises:• a) when there is special relationship e.g: husband & wife• b) duty voluntarily assumed (R v. Instan [1893] 1 QB 450 – accd

lived with her aunt 73yrs old. Her aunt developed gangrene, but accd did not feed or ask medical assistance.

• Held: convicted for manslaughter)

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Failure to act ‘which furnishes ground for civil action’…cont

c) Duty assumed by contracte.g: R v Pittwood (1902) 19 TLR 37 – accd a

gatekeeper. Accd left gate opened and train hit and killed a man. Charged with manslaughter and convicted.

d) Creating dangerous situation

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• e.g: R v Miller [1983] 2 AC 161 HL, applt squat in someone’s house, lit cigarette and fell asleep. Cigarette fell onto mattress. Applt woke up, saw mattress smouldering, but did nothing, slept in another room.

• The house caught fire• applt was charged with arson.

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Scenario• Scenario 1: A was holding his knife in his hand, B seized A’s

hand and against A’s will, plunged the knife still held by A’s hand into V.

• Scenario 2: A, while falling from the stairs, grabbed B and causing B’s death.

• Is A liable in Scenario 1? Scenario 2? • Why??

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Involuntary Conduct

• The conduct must be voluntary.• Not under PC (though definition of ‘voluntarily’ contained in

s.39, but refers to mens rea).• The conduct must be voluntary under the established

common law principles.• If physical movements were involuntary but caused harm, it

deserve no punishment, no criminal liability.

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Defence of automatism

• Generally, it is a defence that the act or omission or, even, event with which the accused is charged was involuntary.

• The act or omission or, even, event must be beyond his control; • Where an act beyond the control of a person’s mind the situation is known

as automatism.

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Automatism

• The following are the involuntary conduct which are accepted under automatism in English law;-

• 1. physical compulsion; – e.g. A by force take the arm of B and the weapon in his

hand, and therewith stabs C. C died. This is murder in A, and B is not guilty.

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Automatism…cont

• 2. reflex movement of an external origin: – e.g. in Hill v. Baxter [1958] 1 QB 277, it was stated that a man could

not be said to be driving where at material time he was attacked by a swarm of bees and was prevented from exercising any directional control over the vehicle, any movements of his arms and legs being solely caused by the action of the bees.

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Automatism

• 3. Concussion;• 4. unconsciousness; – e.g. movements while under the effect of general

anaesthetic.• 5. hypnosis; Quick and Paddison [1973] QB 910• 6. somnambulism; e.g. Cogdon (1951) unreported.

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Automatism

• 7.Hypoglycaemia: a diabetic with blood-sugar deficiency acts in uncoordinated manner. (Quick, 1973)

• however, in Broome v Perkins [1987] Crim LR 271, though D in hypoglycaemic state, was held guilty of driving without due care and attention because from time to time he exercised conscious control over his car, avoiding collision, braking.

• Thus, there should be ‘a total destruction of voluntary control’ for defence of automatism to be available.

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Automatism

• An accused acted in the state of automatism is entitled to a complete acquittal.

• If acted because of insanity, the accused will be under indefinite detention in a secure mental institution.

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Involuntary Conduct vs automatism

• Categories of involuntary conduct which are not under automatism;-• a) involuntary conduct caused by ‘disease of mind’ i.e. if the involuntary

movements had an internal cause resulting in a mental impairment, the accused should not be acquitted on ground of automatism but insanity.

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Automatism…cont• Sullivan [1984] AC 156 – accd kicked friend’s head and body while

recovering from epileptic fit. HOL held accd insane.• Burgess [1991] 2 QB 92, accd killed while sleepwalking – acquitted

because of insanity caused by disease of mind.

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Involuntary Conduct vs automatism

• b) Involuntary conduct caused by accused’s own fault – where accd does something or fails to do something, he knows or ought to know the risk of involuntary conduct.

• e.g taking drugs, fail to eat after taking insulin.

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Involuntary Conduct vs automatism

• Lipman [1970] 1 QB 152 - L, owing to his voluntary ingestion of LSD, kills his girlfriend V, mistakenly believing that is slaying a serpent.

• L’s prior fault by voluntarily put himself to that state put a sufficient basis of fault in law to regard his subsequent involuntary conduct as blameworthy.

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Involuntary Conduct vs automatism

• Ryan v R (1967) 40 ALJR 488 – Accd with one pointed a loaded shotgun at decd whom he had robbed, while with other hand he attempted to tie up the decd. Decd moved. Accd startled and, he said, ‘involuntarily’ pressed the trigger because of ‘reflex action’.

• Is he guilty?

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Ryan v R…cont

• The pointing of the loaded gun and the placing of the finger on the trigger were clearly voluntary acts and, providing that this shot causing the death, accd would be liable for homicide, whether the pressing of the trigger was voluntary or not.

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Automatism under PC• Not provided expressly under PC.• Involuntary act such as epileptic fit – the only possible defence

is provided by S.84 under insanity.• Case: Sinnasamy v. PP (1956) 22 MLJ 36 – Accd murdered his

daughter aged 21 months. Accd had medical history of epileptic. Accd raised the defence of automatism under s.84 of PC.

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Automatism in India• In India, same position as in M’sia. No automatism, only defence of

insanity under s.84, IPC.• In Re Pappathi Ammal (1959) Cri LJ 724, accd jumped into well with child.

Contended that she was sleepwalking, but the claim of somnambulism not substantiated.

• Held: If somnambulism proved, it will attract application of s.84, IPC.

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