Lecture 4:
Actus Reus - Malaysia
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
1
The Elements of Crime
A person is not to be convicted of a crime unless he has, by voluntary
conduct, brought about those elements which by statute constitute that
crime.
In general a person does not incur criminal liability unless he
intended to bring about or recklessly brought about those elements
which constitute the crime.
The above concepts are traditionally expressed in the maxim ‘actus
non facit reum nisi mens sit rea’.
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
2
Actus Reus
The actus reus of a crime is the conduct which is prohibited and
defined either at common law or by statute and which together with
mens rea constitutes the crime.
Although actus connotes a deed which is a result of human conduct,
there are circumstances where an omission to act will constitute a
crime.
The conduct may be either a single act or a series of acts and
circumstances.
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
3
Causation
To give rise to criminal liability, it is not sufficient that the accused had a
culpable state of mind; it must be proved that the crime was caused by
some conduct on his part.
That conduct need not be a direct cause of the crime, for a person may
cause an event through the agency of others; nor need the conduct of
the accused be the sole or the effective cause of the crime.
It is sufficient if it is a significant cause, that is a cause which cannot be
dismissed as trivial, or as merely part of the history of the events
leading up to the commission of the crime.
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
4
Causation
Ng Keng Yong v PP [2004] 4 SLR(R) 89
- applied the “substantive cause” test
Murugan a/l Arumugam v Pendakwa Raya [2012] MLJU 1546 (Court of
Appeal)
- applied the “substantive cause” test and referred to Ng Keng Yong
- referred to R v Smith [1959] 2 QB 35
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
5
R v Smith [1959] 2 QB 35
“... if at the time of death the original wound is still an operating cause
and a substantial cause, then the death can properly be said to be the
result of the wound, albeit that some other cause of death is also
operating”.
(But) “if the second cause is so overwhelming as to make the original
wound merely part of the history can it be said that the death does not
flow from the wound.”
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
6
Novus actus interveniens
Shaiful Edham bin Adam v PP [1990] 1 SLR(R) 442 (Singapore Court of
Appeal)
“…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 (drowning) was also operating.
“The neck wounds were not merely the setting in which another cause
operated so that it could be said that death did not result from them…”
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
7
Malaysian cases
PP v Jong Chin Chin [1995] 4 MLJ 300
there was no allegation from the learned counsel that there was a break in the
causation as to the death of the deceased.
Azhar bin Che Wil v PP [2009] 4 MLJ 794 (Court of Appeal)
there was no evidence to show that there were some intervening causes that
could have disturbed the sequence of events and exonerated the first accused. In
a nutshell there was no break in the chain of causation in that the deceased had
immediately been taken to hospital after the assault, and had remained comatose
until his death
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
8
Novus actus interveniens
When will some other event break the chain of causation and take over
as the operative cause of death, injury or damage?
1. Acts/omissions of the victim
2. Acts of third parties (“TP”)
3. Medical interventions
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
9
V under pressure to take action
Fright & flight cases in the UK
Basappa v State AIR 1960 Mysore 230
Facts: V jumped from roof of a house after D inflicted axe wounds on
him
Not
“…normal and necessary consequence of the acts of the appellants…”
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
10
V’s voluntary contribution to
own death
Nga Moe v The King AIR 1941 Rangoon 141
Facts: D inflicted minor head injuries on VV had healed after a week in hospital-But V had fever – told to stay
at hospital but V did not-V died from a brain abscess.
V suffered from chronic malaria which lowered his power of
resistance and contributed to the formation of the abscess.
Held:
a reasonable man could not foresee.
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
11
Thin-skull rule?
Section 299 Penal Code
Explanation 1—A person who causes bodily injury to another
who is labouring under a disorder, disease, or bodily infirmity,
and thereby accelerates the death of that other, shall be
deemed to have caused his death.
Compare with Nga Moe & Kamayya v Emperor (1935) MWN 51
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
12
rd
Acts of 3 parties
PP v Suryanarayana Murty (1912) MWN 136 (Madras High Court)
Referred to R v Michael (1840) 173 ER 867
See also Ng Keng Yong v PP [2004] 4 SLR(R) 89
“The question was whether ANL’s contributory negligence had such
causative potency that the accused’s initial negligence could not be
said to have contributed significantly to the collision.”
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
13
Medical interventions
No local cases
– medical negligence does not break chain of causation if administered in
good faith by a competent physician or surgeon
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
14
MENS REA
ELEMENTS OF A CRIME III
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
15
Objective test
Subjective test
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
16
Mens Rea
The sorts of mental state:Intention
Knowledge
Recklessness
Negligence
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
17
Mens rea
Intention
1. Direct intention
2. Oblique intention-Woolin [1998] 3 WLR 382
3. Basic, specific and ulterior intent
4. Reform
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
18
Direct Intention
DECISION
PARTICULAR CONSEQUENCE/ OUTCOME
whether desired or not?
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
19
Direct intention
R v Mohan [1976] QB 1 (CA)
Charged for attempt to cause bodily harm to be done to the police
officer
Note: “attempt” – must show specific intent
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
20
Held:Specific intent – a decision to bring about, insofar as it lies within the
accused's power, the commission of the offence …,
no matter whether the accused desired that consequence of his act or
not.
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
21
Oblique intention
D does not aim to bring about the consequence
The consequence is foreseen by D but not wanted – a side effect of his
objective
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
22
R v Moloney [1985] 1 All ER 1025 (HL)
The test:(i) whether the relevant consequence which must
be proved was a natural consequence of the
accused's voluntary act and
(ii) whether the accused foresaw that it would be a
natural consequence of his act,
if so, it is proper for the jury to draw the inference
that the accused intended that consequence
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
23
R v Hancock [1986] 1 All ER 641 (HL)
Held:the direction should not merely refer to the 'natural consequences' of
the accused's voluntary act but should also refer to the 'probable
consequences' of his act.
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
24
R v Nedrick - [1986] 3 All ER 1 (CA)
The jury are not entitled to infer the necessary intention
unless they feel sure that
1.
death or serious bodily harm* was a virtual
certainty (barring some unforeseen intervention) as
a result of the defendant's actions and
2. that the defendant appreciated that such was the
case.
*mens rea for murder is intention to kill or intention to cause SBH
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
25
Moloney (HL) – natural consequence
Hancock (HL) – probable consequence
Nedrick (CA) – virtual certainty
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
26
Was death or SBH
a virtual certain
consequence of
D’s actions?
YES!
NO
INTENTION
NO!
Did D know that it
was a virtual
certain
consequence?
YES!
14/03/2021
Jury is entitled to
find intention
PREPARED BY: DR AMBIKAI S T SINGAM
27
The result was a
virtual certain
consequence of
D’s actions
+
D knew that it was
a virtual certain
consequence
14/03/2021
=
Evidence for jury to
find intention
PREPARED BY: DR AMBIKAI S T SINGAM
28
The result was a
virtual certain
consequence of
D’s actions
+
=
D knew that it was
a virtual certain
consequence
14/03/2021
Proof of oblique
intention
PREPARED BY: DR AMBIKAI S T SINGAM
29
Basic, specific and ulterior intent
Basic and specific intent
Basic intent
“Intent” not essential for mens rea
Specific intent
Proof of actual intent is a necessary part of the mens rea/direct
intent/ulterior intention or MR/state of mind.
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
30
Basic, specific and ulterior intent
Ulterior or further intent
S 18 Offences Against the Person Act 1861
Whosoever shall unlawfully and maliciously by any means
whatsoever wound or cause any grievous bodily harm to any
person,
with intent, to do some grievous bodily harm to any person, or
with intent to resist or prevent the lawful apprehension or
detainer of any person,
shall be guilty of felony, and being convicted thereof shall be liable
to be kept in penal servitude for life
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
31
Basic, specific and ulterior intent
Ulterior or further intent
S9 of the Theft Act 1968.
Burglary.
(1) A person is guilty of burglary if—
(a) he enters any building or part of a building as a
trespasser and
with intent to commit any such offence as is
mentioned…
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
32
Steane [1947] KB 997
Facts
2 possible views of his intent – to assist the enemy
or to save his family
Held:the jury should convict only if satisfied by the
evidence that the act complained of was, in fact,
done to assist the enemy.
It was done to save his wife and children, not to
assist the enemy.
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
33
CCJ
This decision (in Steane) perverted the concept of intention so as to
excuse a defendant who was deserving.
Hard cases make bad law.
See also Gillick v Norfolk Area Health Authority [1986] AC 112 -circular
to prescribe contraceptive pills to under 16 girls
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
34
Woolin [1999] AC 82
Note: mens rea for murder is intention to kill or intention to cause SBH
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
35
Woolin [1999] AC 82
CCJ - 2 ways to look at Woolin
Matthews and Alleyne [2003] 2 Cr App Rep 461 (CA)
- Foresight of virtual certainty is merely evidence for jury to find intention
Re A [2000] 4 All ER 961
- Foresight of virtual certainty is proof of oblique intention
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
36
Doctrine of Double Effect
(a) Good purpose and bad effect on
the same individual
(b) Good purpose on A and bad
effect on B
Re A (conjoined twins)
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
37
The Draft Criminal Code Bill had suggested that a person acts:
"intentionally" with respect to:
(i) a circumstance when he hopes or knows that it exists or will exist;
(ii) a result when he acts either in order to bring it about or being aware
that it will occur in the ordinary course of events;"
The Law Commission reacted to criticism of this suggestion and proposed
the following (clause 2 (a) (this is in the context of proposals for non-fatal
offences against the person):
"a person acts –
(a) 'intentionally' with respect to a result when
(i) it is his purpose to cause it; or
(ii)
although it is not his purpose to cause that result he is aware
that it would occur in the ordinary course of events if he were to
succeed in his purpose of causing some other result"
(iii) https://youtu.be/bcnUo-iIoSs?t=26
14/03/2021
PREPARED BY: DR AMBIKAI S T SINGAM
38