Actus Reus.
Smith & Hogan Criminal Law, all the elements in the definition of the crime except the
accused’s mental element.
 2 types of crimes:
1. Conduct crimes where the actus reus is the prohibited conduct itself. The consequences
of the accused’s conduct are irrelevant to his liability.
S.378 – Theft. For the crime of theft, the conduct of taking someone else’s possession
is the theft, there is no required result such as the person realising. No harm or
consequence of that theft need to be established.
2. Result crimes where the actus reus of the offence requires proof that the conduct caused
a prohibited consequence. The statute only used the word causing and it does not define
the specific act or omission but it showed the require consequence. The conduct itself
does not amount to crime unless the prohibited result is showed.
S.300 – Murder. If one attempts to murder but the person does not die then he cannot
be liable for murder since the required result is the death of someone for the crime of
murder.
 Act
Murphy J of Bombay High Court, act includes a series of act, but cannot be restricted to
every separate willed movement of a human being. It means the action is taken as a whole
and cannot be separate by movement involved.
S33 of PC, an act or omission descried under such Act may be a single or series.
(Regardless the quantity of act taken, just see the consequence of the person)
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Voluntariness
An act must be done in voluntary. It means that the act is carried out under his ability to
control. An act does not voluntary does not amount to a crime. It must show that the act is
done by the person physical movement and his own conduct and will, cannot be duress,
reflect.
 Omission.
S32 showed that the act also extends to illegal omission. It doesn’t necessary be an active
or positive conduct.
(For omission) S304A is the provision provide the elements of causing death by negligence.
In order to prove crime, there must be an Actus Reus. Actus Rues under S304A is causing
death. This type of crime is considered as result crime where the act itself does not amount
crime unless the death is proved. The death can be cause by act or omission. S32 of PC has
extended the applicant of act to illegal omission. Hence, the act doesn’t necessary be an
active or positive conduct, it also can be omitted to do something. The act or omission can
be single or series as stated under S33 of PC. However, omission would not be penalized
unless it is an illegal omission. S43 of PC defined illegal omission would happen when a
person has duty to act which imposed by law but fail to discharged his duty. The duty to
act is imposed under statutory and common law, fail to perform that duty will attract
criminal liability as it amounts illegal omission. Among other principle that may cause the
person to failure to discharge his duty to act is when a person has an assumed responsibility
but he failed to discharged his assumed responsibility/ a person fail to take any reasonable
measure to mitigate the danger he caused/ a person fail to discharged the contractual duty
that attract criminal liability/ a person fail to carry out duty of care that created by special
relationship. This can be seen in the case of (). Brief fact.
(For Act) S304A is the provision provide the elements of causing death by negligence. In
order to prove crime, there must be an Actus Reus. Actus Rues under S304A is causing
death. This type of crime is considered as result crime where the act itself does not amount
crime unless the death is proved. The death can be cause by act or omission. An act must
be something which is voluntarily done. It means that act is carried out by own will and
conduct. Besides, the act also must be prohibited by law. S43 of PC said that an act is
illegal if it prohibited by law or considered as offence under the law. An act that discusses
can be single act or series of act which stated under S33 of PC.
1. Statutory provides for punishment of omission
S283, omit to take order with his property and cause danger or injury to person in any public
way or public line of navigation
S284, negligent conduct with respect to any poisonous substance
S285, negligent conduct with respect to any fire or combustible matter
S286, negligent conduct with respect to any explosive substance
S287, negligent conduct with respect to any machinery in the possession or under the
charge of the offender
S288, negligence with respect to pulling down or repairing buildings
S289, negligence with respect to any animal
2. A contract requires a person to act in a certain way
R v Pittwood, the accused was employed by a railway company as the gatekeeper of a
level crossing. He was liable for the death of the cart driver for failing to close the gate
which resulted in a vehicle entering the crossing and being struck by a train.
3. Some special status relationship exists that creates a duty to act in a certain way.
R v Gibbins and Proctor, a father is liable for the death of his child because the murder is
committed by failure to act in circumstances where a duty of care to the child is imposed
on father. The father was under a duty to look after his own child. Although the child did
not belong to his wife biologically, she was also found to be under such a duty. This is
because she had taken money for food from her husband which could have been sued to
feed the victim.
R v Instan, the accused as a niece has received financial support on behalf of her immobile
aunt, but she has no uses for her aunt's benefit by not providing food and medical help cause
her aunt died. The fact that the accused had a family relationship with the aunt, living
together and received her money, makes her owed a duty to act in circumstances of duty to
take care her aunt. Failure to make use of that financial support and provide medical help
makes her liable for her aunt's death.
4. Voluntary assumption of care creates a duty to act in a certain way.
- If you are voluntary agreed to take care of someone so you are assumed to be
responsible towards that person.
- In the first place you don’t have any duty but later u takes up the duty.
R v Stone and Dobinson, the defendants had assumed responsibility and duty of care for
the victim upon agreeing to look after her by providing her food at the beginning of time
living with them. Hence, omission to provide this care and to alerts the medical authorities
to her condition, made them liable for her death
5. The individual created the risk, he or she must act to prevent harm.
R v Miller, the fire arises due to the cigarette that defendant left. He ignores the fire when
he saw the fire is brought up and he went to another room to continue to sleep. There is
where the court imposed the duty to act and has found the illegal omission.
 Causation
Accused’s act must establish the factual and legal cause of the result.
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Substantial tests
There must be a chain of cause between act and forbidden result. In order to prove causation,
there are several tests can be used. Among others is substantial test. It is a test to see whether
the act of the accused is the operative and substantial cause of the result. Principle of this
text can be seen in S299, explanation 2 which stated that the accused would still be liable
for the death of victims even though it is death due to mere delay or insufficient treatment
because the original wound was still substantial and operative cause to the victim’s death.
The test can be found in R v Smith, accused act still consider as substantial cause of victim
death even though there are others causes contribute to the victim’s death. This is because
victims died by haemorrhage, and it would not happen because bayonet wound which imply
by the accused. No intervening act so causation proven.
The same test was applied in other cases as well. In the SG case, Shaiful Edham bin Adam
v PP, the defendant stabbed the victim and throw him to the drain and thinking he was
death but evidence showed that the victim death because he was thrown into the drain. The
defendant argue that the chain of causation was broken. The court apply the test used in R
v Smith and held that the chain is not broken because it was the act of defendant that was
substantial and operative cause of death.
In Malaysia the principle establish in R v Smith have often been applied. In Leong Siong
Sun & Anor v PP, the defendant argue that the intervening act broke the chain of causation.
The defendant argues the rupture of intestine and the negligence that took place after death
broke the causation. The court used the case R v Smith. It is the failure to operate is not
substantial as the original wound is the substantive that cause victim death. The second
cause only can break the chain of causation if it is so overwhelming.
In this case Loh Yoon Fatt v PP, the defendant had injured the victim and the victim is in
the hospital. The victim received mismanagement treatment and eventually the victim death.
The defendant again argue that it was the intervening act which took place in the hospital
that cause the death and therefore the chain of causation is broken. The court again refused
to accept this reasoning and use the test recognise in R v Smith and said that the chain is
not broken because the substantial and operative cause of death was the act of the defendant.
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But for test
But for the act of the accused, would the person still die. If yes, the accused would not be
liable because there is other factor that cause the death of the person. But for the act of the
accused, would the person die. If no, then it is the act of accused to cause the death. would
be liable. S299, explanation 2, which stated that the accused would still be liable for the
death of victims even though it is death due to mere delay or insufficient treatment because
but for the injured caused by accused, the victims would not bring to the hospital for
treatment and he will not suffer for improper treatment. In R v Smith, but for the bayonet
wounds inflicted on the victims, he will not suffer the injury and brought to hospital for bad
treatment.
R v White, the defendant intended to poison the mother but the mother died of a heart
attack and not because of the poison. The court held that the chain of causation is broken
as the death was not cause by defendant’s act but the outside or independent of the act of
the accused. But for intended to poison, the victims still death for heart attack.
 Break in the chain of causation
- Whether the intervening act is sufficient to break the chain of causation.
1. Act of a third party
R v Pagett, the accused forcibly used his pregnant girlfriend as a human shield in a
shoot out with the police. V died from the police shot. Accused was liable as the selfpreservation could not be viewed as breaking the causal connection. Police act was not
free, deliberate and informed.
PP v Suryanarayanamurty, the accused gave some poisoned sweatmeat to victim
with intention of killing him. The victim gave it to his child eat and it cause death. The
act of victim is not deliberate to kill the child but to give the food to the child. so is the
act of accused, the interviewing act here doesn’t break the causation.
Ng Keng Yong v PP, crewmembers died and the appellants who were the officer were
charged under S304A of the PC for causing their death by negligently navigating them
across the path of the merchant vessel. They argue that their actions were not negligent
as the change in course by the merchant vessel had broken the chain of causation. The
court held that the although the appellants were not negligent in navigating them, it was
incumbent on them to take all the necessary safety measures including the maintenance
of a sufficient closest point of approach.
2. Act of the victim
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for example, suffer from certain disease, illness. the accused act trigged 触发 the
disease to happened.
if there was injury suffered before the inflicted by the accused then the old injury is
only be trigged after the injury is caused by accused, then the accused is liable.
S299 explanation1 recognises the egg skull. Explanation 1 clearly said the chain
cannot be broken if the defendant argue that it was the victim illness or disease or
disability that cause the victim death and therefore, the defendant is liable for causing
injury to the victim. This is because the defendant must accept the victim as he finds
the victims. Therefore, in the case of R v Blaue, the defendant had to accept the victim
refused the blood transfusion and he could not argue that the victim religious believe
broke the chain of causation. The principle of R v Blaue is explain under explanation
1.
3. Improper medical treatment
S299, explanation2
D Yohannan v State of Kerala, after def had carried out the wrongful act but the victim
died several months later and the facts also show that the victim had suffered several
health issues which resulted from the injury. The def did not foresee that his stabbing
with a pen knife would cause her death. The court held that time gap from the infliction
of injury to the death of the victim will also not break the chain of causation
However, Nga Ba Min v Emperor, deceased discharged on own request after her
wounds was dressed in hospital. She returned to village and owing to unskilled
treatment in village. The wounds became septic resulting in her death. The court held
that the chain is broken as the deceased’s death was due to own ignorance and unskilful
treatment and hence the original injuries were only the remote cause of death.
R v Jordan, accused stabbed victim during a fight and victim was sent to hospital.
Wrong and unusual treatment was given and the evidence show that the victim is death
due to wrong treatment. The court held that Wrong treatment was the immediate cause
of death, which was so overwhelming to override the previous wound caused by
accused
R v Malcherek, the test of death is where the brain stem has died. Thus, at the time of
switching off the machine, the victims were already dead. The doctors could not
therefore be the cause of death. It does not break the chain of causation.
4. Unforeseen natural event
- the person is died due to the nature occurrence, it is something unforeseen which not
relate to the act of accused.
Hallet v R, there is flight between accused and victim, the victim would knock out and
lying unconscious by the edge of the water. the accused left him without taking him to
safe place resulting victim drowned when the tide rode. No break of chain because the
act of accused which left the deceased on that particular time has caused the death and
the deceased had been placed in a situation unsafe.
Re Venkatachalam Chetty, appellant was charged for murder. The victim died after
consuming poison, becoming unconscious and thus developing pneumonia. The
appellant was acquitted as the act of accused in administering poison was not the cause
of death because the evidence showed that the pneumonia is not the consequence of
consuming poison. The victim recovered from dhatura poisoning and that he died of
pneumonia.