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Anatomy of a Crime 

General Principles Fault Elements (mens rea) 1.1. Intention A. Conscious purpose to achieve a result/commit an act (short of a desire). Jai Prakash v. Delhi Administration B. Knowledge of absolute certainty. A. Intention need not be premeditated (can be formed suddenly). Tan Chee Wee v. PP ( !!") # C.A. ($%) Ismail bin Hussin v. PP (&'()) # C.A. (*alaya) B. Intention can be inferred from the conduct of the accused and surrounding circumstances. Ismail bin Hussin v. PP (&'()) # C.A. (*alaya) Tan Buck Tee v. PP (&'+&) # C.A. (*alaya) C. A person does not intend the natural and probable conse,uences of his act (re-ection of Smith doctrine). Yeo Ah Sen v. PP (&'+.) # C.A. (*alaysia) 1.2. Knowled e A. Bare state of conscious awareness of certain facts (human mind remains simple and inactive). Jai Prakash v. Delhi Administration B. /ilful blindness may amount to 0nowledge. PP v. Tan !iam Pen ( !!.) # 1.C. ($%) 1.!. "as#ness A. 2ashness is not negligence PP v. Teo Poh "en (&'' ) # 1.C. ($%) C3452A State v. Bishnu Prasad Das B. *inimising/aversion of ris0 does not mitigate rashness S Balakrishnan v. PP ( !!() # 1.C. ($%) 1.$. "ec%lessness A. 2ashness is the same as rec0lessness Seah Siak Ho# v. PP (&'+() # 1.C. ($%) 1.&. 'e li ence A. $tandard of criminal negligence is the same as civil negligence. "im Poh $n v. PP (&''') # 1.C. ($%) % !en Yon v. PP ( !!") # 1.C. ($%) B. 6ifference between criminal and civil negligence in the standard of proof. "im Poh $n v. PP (&''') # 1.C. ($%) % !en Yon v. PP ( !!") # 1.C. ($%)

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P#ysical Elements (actus reus) 2.1. Conduct A. Acts include illegal omissions. (ords referrin to acts include ille al omissions !2. In every part of this Code7 e8cept where a contrary intention appears from the conte8t7 words which refer to acts done e8tend also to illegal omissions. B. Act denotes a series of acts (same applies to omission) )Act* and )omission* !!. 5he word 9act: denotes as well a series of acts as a single act; the word 9omission: denotes as well a series of omissions as a single omission. C. Illegal covers offences7 things prohibited by law or that which furnishes ground for civil action )Ille al*+ )unlawful* and )le ally ,ound to do* $!. 5he word 9illegal: or 9unlawful: is applicable to every thing which is an offence7 or which is prohibited by law7 or which furnishes ground for a civil action< and a person is said to be 9legally bound to do: whatever it is illegal or unlawful in him to omit. 6. =oluntary assumption of responsibility results in a duty of care & v. Taktak (&'>>) # C.A. (4ew $outh /ales7 Australia) 2.2. -tate of Affairs 2.!. Conduct . Circumstances/"esults A. Criminal act must be done voluntarily & v. 'alconer (&''!) # 1.C. (Australia) 2.$ Causation 2.& Crimes in0ol0in actus reus only !. Criminal 1efences $. -cope of criminal lia,ility

General Principles
Commission of offence re,uires both Actus 2eus and *ens 2eus ?? must prove both elements B26. o 5he intention to 0ill must coincide with the act of 0illing (Concurrence ?rinciple) o 2are instances where the concurrence of both elements do not occur

1. Fault Element (2ens "ea)


$ub-ective approach to determining presence of mens rea. Incorporation of the ma8im (actus non facit reum7 nisi mens fit rea) into the ?enal Code in ways<

o @8pressly included the fault element in the definition of a crime Anless the statute states rules out the need for *27 a person cannot be found guilty unless he has got a guilty mind o Indirectly included via general e8ceptions of ?C @.g. mista0e of fact and accident< effect is to deny any fault Applicable to offences in ?C and outside< @ven if crime does not provide for a fault element 4ot strict liability unless the statute e8pressly ousts the application of the general e8ceptions

1.1 Intention
Conscious purpose to achieve a result/commit an act (short of a desire). o 92e,uires something more than the mere foresight of the conse,uences7 namely7 the purposeful doin of a t#in to ac#ie0e a particular end: (Jai Prakash v. Delhi Administration B&''&C) Knowledge of a,solute certainty. o Nelsons Indian Penal Code # if 9the doer of an act 0nows that his act will result in death7 he should be deemed to have intended to cause death:. o Ratanlal and Dhirajlals Laws o Crimes # 9BaC conse,uence is deemed to be intended7 though it is not desired7 when it is foreseen as substantially certain:. o 1owever7 s)!! envisages 0nowledge as being different from intention. $)!! (d) # /hat is the difference between 0nowledge of absolute certainty vs. 0nowledge in all probabilityD o Any lesser form of 0nowledge than the above will 435 be intention E i.e. substantial and virtual certainty (obli,ue intention) insufficient for intention )

5he 0nowledge must be (i) as to the result and (ii) absolute in order to infer a purposeful intent o (i.e. when A %nows to an a,solute certainty t#at #is act will %ill 37 he will satisfy intention even if he did not want to bring about the purpose)

Criticisms< but if so7 then there isnFt a need for s)!!(d) # since 0nowledge that the act will in all probability cause death can be considered as intention (or is an even higher degree of 0nowledge re,uired to constitute intentionD)

4eed not be preEmediated (can be formed on the spur of the moment). Can be inferred from the conduct of the accused and surrounding circumstances. Ismail bin 1ussin v ?? B&'()C Gacts AC and friend visiting padi field when they encountered 3mar and 2ifin who were hunting. 3mar shot dead7 2ifin in-ured. AC convicted for murder of 3mar7 attempted murder of 2ifin. Appealed< trial -udge misdirected the assessors on the evidence and his intention in respect of the offences charged. *urder # s)!! and attempted murder E s)!. Hac0 of intention< did not recognise 3mar and mistoo0 him for a terrorist /hether the accused had the intention to 0ill Intention re,uired to constitute to murder is not necessarily an intention to %ill an identified person. Intention need not ,e premeditated but can be formed suddenly Intention can be inferred from the conduct of the accused and surrounding circumstances Appeal allowed. 2etrial for the first conviction; and =C%1 with ) yearsF imprisonment for the second conviction. *urder 5oo much importance attached to the issue of the challenge (which carries no legal weight in itself) Circumstantial e0idence li0e sighting of a man and shooting at close range implies an intention to 0ill 1ighly unli0ely that accused had premeditated design to 0ill anyone or even fire Accused most probably saw a man and fired at once7 on impulse7

3ffence / 6efence Hegal Issues 2ule or 1olding

Iudgment/2esul t 2easons for 6ecision

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@valuation

without any conscious or reasoned though BA5 an actual intention to 0ill a human being7 though formed on impulse and on suspicion that the person is a terrorist7 is in law a murderous intention. Attempted *urder Accused fired at 2ifinFs legs Interpreted by the Court as 9not unusual to prevent escape ... where the definite intention is not to 0ill: # 4ot an intention to murder. $ignificance< intention need 435 be premeditated but can be formed suddenly 2elevance of premeditation7 motive and malice in determining intention to 0ill ?remeditation # unnecessary for intention since intention to 0ill can be formed on impulse and without premeditation (cf< 5an Chee /ee # where it was held that premeditation not re,uired for intention) *otive # may be suggestive of intention though not ingredient for murder (cf< Jeo Ah $eng) *alice # insignificant since murder can be established without re,uiring accused to have recognised victim (i.e. 0ill to ease pain without malice) but can suggest intention K< ?ossible to have intention to 0ill when accused shot victim 9on impulse # without any conscious or reasoned thought:D 4o7 intention involves purposive bringing of a certain result or absolute certainty7 not possible without conscious or reason thoughtD It could be possible that he acted on impulse7 but unli0ely that it was without conscious or reasoned thought cause this would means that there is a lac0 of intention (purposive intent) L could have been automatism (which negates A2). K< Court relied on A2 to prove the *2 of the accused in the nd charge of attempted murder # permissibleD Jes7 since intention or sub-ective mental states can only be inferred from the actions. Impossible to prove otherwise. But circumstances and conduct must put clearly towards a reasonable inference of the *2 (i.e. corroborative evidence shows that he intended to 0ill E close distance7 use of firearm7 aimed for vital parts7 multiple shots etc)

3nus of proving intention beyond reasonable doubt on prosecution. 5an Buc0 5ee v ?? B&'+&C Gacts Accused was an employee of a wholesale fishmonger in Iohor Bahru. =ictim suffered ( grievous wounds. 1e stabbed to death a coEwor0er and appealed against his murder conviction on ground of misdirection of -ury by the trial -udge. *urder # s)!! Iudge misdirected -ury /hether the intention to 0ill can be deduced from the evidence.

3ffence / 6efence Hegal

Issues 2ule or 1olding

Iudgment 2easons for 6ecision

5he meaning of intention must conform to the definition of the offence charged (i.e. in this case7 murder) 5he (e8istence and nature of) intention are to be deduced from the evidence 5he ?? bears the onus of proving the intention Appeal dismissed7 accused convicted of murder. 6efinition of *2 for murder # s)!! 5rial -udge was wrong in holding that 9doing an act which one 0nows is li0ely to cause death: as s '' when s)!!(b) clearly stated that it amounts to murder 5rial -udge was wrong in directing that accused must be convicted of murder when the accused contemplated that serious harm is li0ely to occur 1owever7 s)!! re,uires the contemplation of death 6eduction of intention from evidence 5he body had ( appalling wounds # i.e. wounds penetrating heart and liver which must have been caused by a heavy sharp instrument li0e an a8e 4o other evidence as to the circumstances surrounding the 0illing; no ,uestion of insanity7 provocation7 selfEdefence or other defence raised 3nus of proof Inaccurate to re,uire the accused to satisfy the -ury 9on the balance of probability: when denying the prosecutionFs case @ntitled to ac4uittal if accused mana es to raise reasona,le dou,t in the prosecutionFs case $ignificance< Intention can vary according to the offence within the ?C (must conform to the offence charged) K< error made by trial -udge in instructing the *2 for s)!! ?C 5rial -udge was wrong in holding that 9doing an act which the offender 0nows to be li0ely to cause the death of the person to whom the harm is caused: as s '' when s)!!(b) clearly stated that it amounts to murder 5rial -udge was wrong in directing that accused must be convicted of murder when the accused contemplated that serious harm is li0ely to occur when s)!! re,uires the contemplation of death K< since intention is a state of mind7 how to prove and what degree of proof re,uiredD Intention M state of mind M degree of proof re,uired N beyond reasonable doubt 4ature and e8istence of *2 to be deduced from evidence

@valuation

2e-ection of @nglish doctrine that a person intends the natural and probable conse,uences of his act. Jeo Ah $eng v ?? B&'+.C

Gacts 3ffence / 6efence Hegal Issues

2ule or 1olding

Iudgement/2esul t 2easons for 6ecision

*an appealed against conviction of murder. *urder # s)!! 6efence of insanity (insane into8ication) Iudge failed to direct -ury ade,uately or properly on ,uestion of insanity Iudge failed to direct -uryFs attention to the fact lac0 of motive as an indication of insanity L not told that victim and accused were on good terms Iudge was wrong to emphasiOe on ma8im that 9every man intends the natural and probable conse,uences of his act: *edical evidence on insanity not contradicted # should not have deprecated the e8pert opinion and directed that the e8pert opinion was based on assumptions *otive not ingredient for offence of murder BA5 lac0 of motive in this case was an indication of insanity L -udge should have told -ury of victim and accusedFs good terms ?resumption that 9every man intends the natural and probable conse,uence of his act: should be avoided when dealing with intention of murder o $erious threat to any rational theory of intention # not true that that 9every man intends the natural and probable conse,uence of his act: o ?resumption re-ected in Canada and Australia (must prove actual intent for murder) Appeal allowed7 0ept in safe custody pending order of %overnor $mith doctrine implies that the intention of any man should be o,5ecti0ely determined ?C re,uires I45@45I34 to be determined according to whether the accused actually possessed a particular form of su,5ecti0e mental state $ignificance< 2e-ection of smith doctrine # intends natural and probable conse,uences of his conduct (ob-ective test)

@valuation

6ifference between intention7 desire and motive Intention 5echnical concept denoting a mental state in which accused acts with the purpose to bring about a result 1esire Emotional or moti0ational element which may or may not be present in intention 2oti0e Emotional force behind accusedFs conduct Bad motive not prere,uisite to guilt 4ot a defence< intention may be criminal while motive may be righteous

*ohammed Ali bin Iohari v ?? B !!>C Gacts 3ffence / 6efence . AC molested and 0illed girl by drowning in water. *urder # s)!!

Hegal Issues

6ifference between intention and motive. Ase of motive in determining intention. 2ule or 1olding Intention and motive different. Intention # Acting with a purpose to bring about result. *otive # 2eason why AC behaved in a certain way. Iudgement/2esult Appeal not allowed. 2easons for /hile motive not essential element of murder7 it can 9bolster inference 6ecision that intention to murder was e8istent.: AC had intended to cause specific in-ury deceased suffered7 which was sufficient in ordinary cause of nature to cause death. @valuation $ignificance # *otive of AC doesnFt need to be considered at all. It can however be used to infer his intention. I.e. if there was strong motive for him to 0ill to silence the victim7 itFs all the more li0ely that he intended to 0ill.

1.2 Knowled e
$ignifies 9a state of mental realisation with the bare state of conscious awareness of certain facts in which the human mind remains simple and inactive: ( Jai Prakash v. Delhi Administration &''& $CC ) at " ).

/ilful blindness may amount to 0nowledge o AC 0nows of high probability that the facts e8isted but deliberately refused to confirm this in belief that 9where ignorance is safe7 Ptis folly to be wiseF: ( !he "amora No. # B&' &C & AC >!& at >& 7 referred to in PP v. !an $iam Pen% B !!.C & $H2 ( at B >C).

o Haw regards him as morally or legally having the same level of blameworthiness as one who had actual 0nowledge (@=@4 though he does not have actual 0nowledge) Knowled e 6 awareness of certain facts wit# a,solute con0iction or certainty as to t#eir e7istence 4ature of 0nowledge constant BA5 sub-ectEmatter of 0nowledge can differ with conte8t o $)!!(d) # 0now that his act will 9in all pro,a,ilities cause death: o $) & # 0now that he 9is li%ely to cause hurt:

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o Both e,ually certain and convicted that facts giving rise to offence e8ists BA5 ris0 of death highly probably while ris0 of hurt is li0ely 1e ree of certainty Absolute conviction or certainty as to e8istence Hesser degree of conviction or certainty as to e8istence E @ven less conviction or certainty as to e8istence Fault term Knowledge Belief 2eason to believe $uspicion or speculation

1.! "as#ness
$ome case authorities have e,uated rashness with negligence (e.g. State v. Bishnu Prasad Das (&''!) .! CH5 ""( at ""+). But J*C contended that the correct view is that there is 9a material difference between the two:< o Culpable rashness Acting with the consciousness t#at misc#ie0ous and ille al conse4uences may follow+ ,ut wit# t#e #ope t#at t#ey will not and often with the belief that the actor has ta0en sufficient precautions to prevent their happening. Imputability arises from actin despite t#e consciousness (per 1olloway I in In re Nidarmati Na%a&hushanam B&>. C). o 4egligence is on the other hand premised upon 9an ob-ective standard of conduct:. PP v. Teo Poh "en B&'' C # there is a difference between rashness and negligence7 where ras#ness is a ra0er offence. 2ashness is 435 90nowledge of the li0ely conse,uence: # 'm(ress v. Idu Be% (&>>&) ) All ..+ at .>!. o Criminal rashness is haOarding a dangerous or wanton act with the 0nowledge that it is so7 and that it ma( cause in-ury7 but without intention to cause in-ury7 or 0nowledge that it will probably be caused.:

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A person who is ignorant7 in the sense of never having considered the ris07 will not be rash (PP v. !i)atun B !! C). J*C contends that it would be 9out of line with the structure of the Code and unduly restrictive to insist on the recognition of death:< o 3ne can be found guilty of culpable homicide even if he has not contemplated death. o *any cases address the ,uestion of advertence to ris0 in more general terms (e.g. dangerous or wanton act in 'm(ress v. Idu Be%). o 5est of negligence under s. )!"A is generally couched in terms of the foreseeability of death or in-ury. Fault type 4egligence 2ashness Premise of criminal ,lamewort#iness 3b-ective standard of conduct AccusedFs actual 0nowledge of the ris0 of harm produced by his conduct (sub-ective) 4o rashness when accused ,elie0ed that he had ta0en precautions which completely remo0ed any ris% of #arm because then the accused would not 0now of the ris0 (if so7 negligence for failure to meet to the ob-ective standard of conductD)

$ Bala0rishnan and Another v ?? B !!(C Gacts 3ffence / 6efence Commando dun0ing 0illed & trainee ($%5 1u) and grievously hurt another (C?5 1o). Abetment by illegal omission for &st accused (course commander) and abetment by instigation for nd accused (supervising officer) 1st accused # inter alia7 that (c) dun0ing was permitted by the training rules7 and in any case7 an act not in compliance with the training rules was not a rash act under the ?C 2nd accused # inter alia7 that (c) that he had not been rash or negligent /hether the dun0ing amounts to a rash act under s))> ?C Issue of culpable rashness @mpress of India v Idu Beg< Criminal rashness is haOarding a dan erous or wanton act with the 0nowledge that it is so7 and that it may cause in-ury7 but wit#out intention to cause in-ury7 or %nowled e that it will probably be caused. 5he criminality lies in running the ris0 of doing such an act with rec0lessness or indifference as to the conse,uences. ?? v 5eo ?oh Heng approving 1olloway I in 2e 4idamarti 4agabhushanam< Culpable rashness is acting with the consciousness that the mischievous and illegal conse,uences may follow7 but with the hope that they will not7 and often with the belief that the actor has ta0en sufficient precaution to prevent their happening. 5he imputability arises from actin despite t#e consciousness (lu8uria).

Hegal Issues 2ule or 1olding

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Iudgement/2esul t 2easons for 6ecision

Appeals dismissed7 sentence enhanced. Accused 9clearly acted with the consciousness that submerging traineesQ heads underwater may result in the trainees aspirating water leading to drowning:7 conscious that 9dun0ing may cause in-ury including endangering life resulting in grievous hurt:. Iudge also found that dun0ing was not permitted under the C$5 lesson plan 2ash act on nd accusedFs part< Conscious of the danger inherent in the manner of dun0ing stipulated by him but still instructed his subordinates to carry on with the act in that particular manner. *ay have ,elie0ed t#at #e #ad minimised or e0en a0erted t#e dan er by setting down certain guidelines for the instructors7 but his criminality lay in #is runnin t#e ris% of doin t#e act. Bnote criticism here # if danger averted then not considered 9rash: anymore7 should be negligent since there is no consciousness of any ris0C Gailure to supervise or stop the instructors from going beyond the guidelines he set showed a rec%lessness or indifference as to the conse,uences of the dun0ing. 2ash act on &st accusedFs part< Brigade commander witnessing and commending it is 9very good training: o BC not called to corroborate claim o BC witnessed dun0ing in washing bay which was found to be much less dangerous (" E + inch v ) inch of water) Accused thought dun0ing would not be dangerous so long as the Rthree dips7 five to ten seconds per dipR rule was adhered to o Accused was present when Cpt 1o was dipped and would have seen that the dun0ing e8ceeded these parameters. o 1e must #a0e realised t#e dan er7 but did nothing about it. o @8perience of instructors carrying out the dun0ing and the fact that there were no casualties during the previous two C$5 courses were immaterial if safety guidelines were not adhered to during the >!th C$5 course. Hac0 of education (sec ) L did not realise danger inherent in act of dun0ing o 6oes not re,uire university education to realise that dun0ing is e8tremely perilous o s )!"A merely re,uires the court to consider whether Ra reasona,le man in the same circumstances would have been aware of the li0elihood of damage or in-ury to others resulting from BhisC conductR Bo,5ecti0e standardC # per 4g Keng Jong v ?? o 5herefore7 any reasonable man in the same circumstances would have 0nown that the acts carried out were rash7 and there was no reason to believe that the & st accused would honestly have thought otherwise.

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@valuation of the Case

Criticism< 1C was incorrect in stating that (in relation to s)!"A) accused was rash if 9he believed that he had ... averted the danger:

1.$ "ec%lessness
?urely sub-ective test o $ome cases have e,uated rec0lessness with rashness # *a( Sin% +o,k v. PP B&'' C *HI .&". $ub-ective S ob-ective elements o 1owever7 some cases have adopted the AK approach in R v. Reid B&'' C ) All @2 +.) at +') (PP v. "ulki li &in -mar B&''>C + *HI +()< o 9BA person is rec0less ifC he recognised that there was some ris0 of that 0ind involved7 but nevertheless went on to ta0e it; or T that T he did not even address his mind to the possibility of there being any such ris07 and the ris0 was in fact obvious.: $ingapore courts have indicated t#e similarity ,etween rec%less and ras#ness in Seah Siak +ow v. PP. 4ot in the ?C but other statutes (2oad 5raffic Act) Intention 0s. %nowled e 0s. ras#ness/rec%lessness Intention 9a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of ac#ie0in a concei0ed end: Iai ?ra0ash ?urpose Knowledge 9A state of mental realisation with the bare state of conscious awareness of certain facts in which the human mind remains simple and inacti0e Iai ?ra0ash Knowledge but no purpose 2ashness/2ec0lessness 9culpable rashness is acting with the consciousness that mischievous and illegal conse,uences may follow7 but with the #ope t#at t#ey will not and often with the belief that the actor has ta0en sufficient precaution to prevent their happening: 4idarmati Knowledge but indifference

1.& 'e li ence


$tandard of criminal negligence is the same as civil negligence. 6ifference between criminal and civil negligence in the standard of proof.

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o Criminal re,uires beyond a reasonable doubt vs. on a balance of probabilities. Criminally blameworthy since actor has been inattentive of the danger posed to other by conduct AccusedFs conduct to be measured against the conduct of a reasonable person with the same 0nowledge7 e8perience and s0ill e8pected and in the same/similar circumstances Him ?oh @ng v ?? B&'''C Gacts 5C* practitioner caused grievous hurt to a patient who visited his clinic for colonic washEouts ??< accused was criminally negligent in prescribing treatment without proper training in the procedure and use of e,uipment7 and without any understanding of the ris0s and complications involved. 6efence< that the standard of negligence in criminal case should be higher than civil standard (proposing an intermediate standard # higher than criminal but lower than gross negligence); and the criteria of criminal degree of negligence should be li0elihood (rather than possibility) of in-ury. $))> E =C%1 /hether the standard of criminal negligence is higher than the standard of civil negligenceD /hether the degree of negligence should be li0elihood or possibility 5he standard of negligence re,uired in criminal cases are the same as t#at in ci0il cases # 4ettleship v /eston 6espite having the same standard of care as civil negligence7 there is a distinction maintained between criminal and civil negligence in terms of (i) standard of proof and (ii) causation test. Intermediate standard of care too elusive to be wor0able 3n issue of degree of negligence E li0elihood (proposed for intermediate standard) or possibility (for civil standard)< &. civil standard of negligence varies in accordance with the circumstances i.e. present case # medical negligence7 bolam test . two sources for the phrase Rli0elihoodR do not support an intermediate standard of negligence for criminal cases a. Adnan v ?? and /oo $ing v ?? # used reasonable manFs test but unclear if civil or intermediate standard b. *ichael A. Iones on *ed. 4eg. # li0elihood used in conte8t of remoteness7 not standard Convicted of s))> ?C Gollowing $%1C cases of /oo $ing v 2 (&'(") and *ah Kah Jew v ?? (&'+'E&'.&) $ignificance< $%1C laid down definitive standard of care for criminal negligence

3ffence / 6efence Hegal Issues 2ule or 1olding

Iudgement/2esul t 2easons for 6ecision @valuation of the Case

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4g Keng Jong v ?? B !!"C Gacts Girst AC was 3ffice of the /atch (33/) of 2$$ Courageous and the second accused was a trainee 33/ when the vessel collided with a merchant vessel. " crew members died7 AC convicted of s)!"A for causing the death by negligently navigating the vessel across the path of the merchant vessel. 5hey appealed against conviction. $ )!"A # causing death by a negligent act $tandard should be that of a reasonable trainee 33/ and not the higher standard of care of a reasonable ,ualified 33/; that ob-ective standard is inappropriate for criminal charge as 9status of trainee diametrically opposed to concept of *27 still training to 0now what is right or wrong: and the court should apply the sub-ective standard /hether the standard of care is that of a reasonable trainee 33/ or ,ualified 33/D /hether there is a distinction between 9rashness: and 9negligence: in s)!"A 5he standard of care for criminal and civil negligence is the same # per Him ?oh @ng $ince 4ettleship v /eston applies to civil negligence7 it similarly applies for criminal negligence # standard of care re,uired would be that of an ob-ective standard of a s0illed7 e8perienced and careful driver o $upported on the ground that the recognition of varying standards of care would ma0e the law too uncertain o 6uty of care should be tailored not to the actor7 but to the act which the accused elects to perform 6espite having the same standard of care as civil negligence7 there is a distinction maintained between criminal and civil negligence in terms of (i) standard of proof and (ii) causation test. o Gurther re,uirement in criminal negligence for ?? to prove a particular type of in-ury suffered in order to charge. 3nly death and grievous hurt. $)!"A does not re,uire proof of intention or 0nowledge (sub-ective *2) 5he relevant *2 is rashness or negligence # 2e 4idamarti approved in 5eo ?oh Heng< o Culpa,le ras#ness is acting with the consciousness that the illegal and mischievous conse,uences may follow7 but with the hope that they will not and often with the belief that the actor has ta0en sufficient precaution to prevent their happening. 5he imputability arises from actin despite t#e consciousness (lu8uria) o Culpa,le ne li ence is acting wit#out t#e consciousness that the illegal and mischievous effect will follow7 but in circumstances which show that the actor has not e8ercised the caution incumbent upon him7 and that if he had he would have had the consciousness. 5he imputa,ility arises from t#e ne lect of ci0ic duty of circumspection.

3ffence / 6efence

Hegal Issues

2ule or 1olding

&"

Iudgement/2esul t 2easons for 6ecision @valuation of the Case

Correct approac#< whether a reasonable man in the same circumstances would have been aware of the li0elihood of damage or in-ury to others resulting from such conduct # per Adnan v ?? ?olicy considerations< 4o reason to lower the standard of care for trainee 33/ because allowing 33/ control was part and parcel of the training in 2$4 o /elfare of 2$4 trainees v wider interest of other 2$4 personnel and other vessels/crews at sea o 6emand any less would unduly place lives and property of other innocent parties at ris0 Convicted of causing death by a negligent act 5he standard of care re,uired of the accused was that of a reasonable ,ualified 33/ Accordingly7 a reasonable 33/ in the circumstances would have the re,uisite 0nowledge and thus the *2 for s)!"A was satisfied. Illustrate the ob-ective nature of criminal negligence # a0in to negligence in tort $ignificance< distinguishing between rash and negligent act $ignificance< sought to distinguish between criminal and civil negligence (K about standard of care re,uired) K< what is the difference between the fault element of rashness and negligenceD /hich is more culpable and whyD o AC 0nows of the presence of the ris0 in rashness but not in negligence. o 2ashness is more culpable because he 0new of the ris07 yet still proceeded with the act. /hereas in negligence7 he did not 0now at all of the ris0. K< what is the difference between rashness7 intention and 0nowledgeD o 5he similarity between the ) would be the level of 0nowledge involved in the awareness or li0elihood/ris0 of the outcome. o Intention re,uires an absolute certainty of a result occurring7 while 0nowledge only re,uires the certainty of the e8istence of the fact and rec0less7 the li0elihood of the act resulting in the outcome. K< fairness of the case # whether right to hold the 9best competent standard: for the trainee 33/ as insufficientD 4ote< arguments against include why negligence should not remain solely civil but creep into the criminal given its ob-ective natureD

2. P#ysical Element (Actus "ea)


Crimes involving conduct Crimes involving state of affairs &(

Crimes involving conduct and circumstances/ results 2e,uirement for conduct to be 9voluntary: 2e,uirement of causation for crimes involving results Crimes involving actus reus only o 4o need for proof of a sub-ective fault element o Crimes based on negligence o Crimes of strict liability

2.1 Conduct
Commonsensical way of interpreting acts by *urphy I in 'm(eror v. Bho%ilal Chimanal Nanavati o $omething short of a transaction which is composed of a series of acts7 but cannot7 in the ordinary language be restricted to every separate willed movement of a human being; for when courts spea0 of an act of shooting or stabbing7 it means the action ta%en as a w#ole and not t#e numerous separate mo0ements in0ol0ed.: Hiability for omissions generally restricted< o =ery few ways in which one can do action7 whereas the number of ways in which one can fail to do something is much greater o /holesale liability for omissions would force us to constantly interrupt our own actions and plans to prevent outcomes that are brought about by others; to become in effect7 our ,rot#er8s %eepers:. o ?enal Code framers # it is 9mostly desirable that men should not merely abstain from doing harm to their neighbours7 but should render active services to their neighbours 1owever penal law must content itself with 0eeping men from doing positive harm and must leave to public opinion7 and to the teachers of morality and religion7 the office of furnishing men with motives for doing positive good: (i.e. criminal should not force one to do good). A lighter sentence for illegal omissionsD

&+

o J*C # 9omissions are often incidental to the defendantFs practical deliberations:. According to framers7 liability for omissions only if IHH@%AH o $") ?C< 9Ille al: applicable to everything which< o Is an offence E7pressly made offences ,y t#e penal code @.g. s &>. # offence for persons who are ,ound ,y law to render assistance to public servants in e8ecution of their public duty 7 to intentionally omit to i0e assistance o 3r which is prohibited by law Includes omissions which are e8pressly made offences but not restricted to those *ay apply to other 9statutory obligations: @.g. s +&( ) of /omenFs Charter # it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children... Gailure by a parent to discharge duty is prohibited by law but not an offence in itself (It -ust satisfies the A2 portion) o 3r which furnishes a ground for civil action *ost common E negligence %rounds for civil liability can form the basis of criminal liability (4g Keng Jong e,uated criminal and civil standards of negligenceU) @stablishing criminal liability from civil liability $pecial 2elationships (e.g. parent and child) o 2ationale for punishment< legal obligation to ta0e proper care &.

=oluntary assumption of responsibility o 2ationale for punishment< underta0ing of a responsibility to ta0e care (pro8imate r/s) 2 v 5a0ta0 (&''>) Gacts AC addicted to and obtained drugs from one 2abih. 2abih re,uested that accused procure prostitutes (including victim) to attend a party with him7 to be paid in cash and drugs. =ictim overdosed7 couldnFt be resuscitated by doctor called by 2abih. *anslaughter by criminal negligence /hether by electing to help the victim and failing to see0 medical attention thin0ing that 9when she got over the dose she had she would be all right: would the accused owe the victim a legal duty to obtain medical attention for herD 5he circumstances at common law when a legal duty arises to ta0e action to preserve the life of another include (i) statute imposed duty7 (ii) status or relationship7 (iii) assumed contractual duty7 (iv) voluntarily assumed care o /here accused 9made efforts to care:7 court is entitled to find that the duty has been assumed @8istence of le al duty7 not moral obligation # important and determinant ,uestion =ictim #elpless from imprisonment7 infancy7 sic0ness7 age7 imbecility7 or other incapacity of mind and body Accused has custody and care of a victim i.e. removal of the victim from a situation which others might have rendered or obtained aid for her *ere negligence not sufficient; must be wic%ed ne li ence (so great that accused was deemed as having a wic0ed mind7 that he was rec0less and careless as to whether death would result) Convicted of manslaughter by negligence If the accused declined to attend to the victim after receiving the call from 2abih7 he would not be responsible for her death Bno =A27 no legal dutyC If the accused went and observed her condition and left the deceased as she was found7 he would not be responsible for her death Bno =A27 no legal dutyC BA5 the accused (i) assumed a duty of care for the victim7 who was (ii) helpless at the time and (iii) by doing so removed her from a situation which others might have rendered or obtained aid for her $ignificance< Illegal omission 5est for criminal negligence (Australia) is similar to the test for gross negligence (AK common law) Circumstances recognised by common law similarly covered by causing death by negligent act under s)!"A by illegal omissions (s)

3ffence / 6efence Hegal Issues

2ule or 1olding

Iudgement/2esul t 2easons for 6ecision

@valuation of the Case

&>

read with s")) since acts would include omissions or series of omissions. 4ote< difference between civil and criminal negligence lies with onus of proof and e8ercise of prosecutorial discretion # submitted that these are inade,uate safeguards against overEcriminalising negligent acts (cf< 4g Keng Jong v ?? B !!"C " $H2 >'7 which held that the degree of criminal and civil negligence are the same)

2.2. -tate of Affairs


$ituational liability # usually of a 9relatively minor nature: (e.g. Common .amin% +ouses A,t7 by which one commits an offence if he is an occupier of a public place used for unlawful gaming). 5he criminal law is circumspect in imposing situational liability (only occupier guilty but not the occupants or visitors who have no control over state of affairs).

2.!. Conduct . Circumstances/"esults


Conduct crimes (A2 only) o Actus reus consists of only t#e conduct7 no re,uirement for circumstances or results 9Attempts: # conduct going beyond the stage of preparation 9Conspiracy: # as soon as the agreement is concluded

Conduct L circumstances o ?hysical elements comprise not only conduct but also circumstances accompanying the conduct 9" the result of such conduct o Conduct itself is not a crime Becomes a crime ,ecause of t#e circumstance 2ape Conduct N having se8ual intercourse with a woman Circumstance N without womanFs consent

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Careless 6riving Conduct< driving Circumstance< without due care and attention or without reasonable consideration.

Conduct L 2@$AH5 o 5ype of conduct criminalised if they cause a proscri,ed result Conduct in itself is important BA5 becomes a serious crime because of the conse4uences w#ic# result @8ample< *urder Conduct of the accused must have caused the death of a human being o Conduct N stabbing7 shooting7 poisoning etc (means by which accused 0illed) o 2esult N Causing the death of another human being Although conduct is important7 it is the result (death) which ma0es murder heinous o Comparison Conduct crimes regarded less serious than e,uivalent result crimes Compare< 6angerous driving S 6angerous driving causing death

2.$. :oluntariness
%eneral rule< /here A2 include conduct7 the conduct must be voluntary (@=@4 IG not e8plicitly stated) =oluntariness< ability of the person to control his conduct (cru8< control7 not consciousness) o ?ossible to be conscious and do an involuntary act # e.g. if someone pushes me.

=oluntariness includes some mental component< the bare intent (to be contrasted with intention in mens rea). o Control< involves willed #uman ,e#a0iour therefore there is some mental component 2ationale< deterrence would not be met by convicting and punishing involuntary conduct Acts o @8ample< $tabbing someone =oluntary conduct (A2)< bare intent to perform t#e conduct

o 6istinguished from fault element (*2) of the crime which is the intention to produce a certain result e.g. to harm the victim o @8ample< 5heft =oluntary Conduct< ta0ing a bag and carrying it away (A2 of theft fulfilled) o Is there an intention to ta0e the bag dishonestlyD (*2 may not be fulfilled) 2 v Galconer (&''!) Gacts =ictim violently assaulted the accused after which the accused remembered nothing until she found herself on the floor with her husband dead by a gunshot wound and the shotgun by her side. 5rial -udge re-ected clinical evidence that the accusedFs conduct was consistent with nonEinsane automatism. Court of Criminal Appeal held that the evidence should have been admitted # relevant to issue of whether the shooting occurred independent of the e8ercise of her will7 for purposes of s ) Criminal Code (/estern Aust) $)!! E *urder 6efence of nonEinsane automatism /hether the shooting occurred independent of the e8ercise of the accusedFs will 5o constitute to an PactF7 the conduct must have been voluntarily performed 5he distinction between (i) a willed act and (ii) an intention to cause a result

3ffence / 6efence Hegal Issues 2ule or 1olding

Iudgement/2esul

&

t 2easons for 6ecision 5o be criminally responsible7 the accused must have discharged the gun 9of her own free will and by decision: (per Kitto I in =allance) or by 9the ma0ing of a choice to do so: (per Barwic0 CI in 5imbu Kolian). 5he distinction between 9will: and 9intent: Intent usually relates to conse,uences; while will relates to the act done (ordinarily presumed to have been willed) 2e,uirement of a willed act (a0a PwillF) corresponds with the re,uirement for offenderFs act to be done with volition or voluntarily (a0a PvoluntarinessF) 2e,uirement of willed act involves no intention or desire to effect a result by the doing of the act7 but merely a conspicuous c#oice to do t#e act ?resumption that an act done by a person apparently conscious is willed or done voluntarily BA5 inference can ,e re,utted where there are grounds to believe that the accused was not in control of his acts (per /oolmington v 6??7 2 v *ullen) A46 ?? can rely on presumption to discharge onus of proving that the act was a willed act or done voluntarily (unless grounds to believe otherwise) $ignificance< Concept of willed act/voluntariness under AustraliaFs Criminal Code and the common law K< 9act: not defined within ?C # how helpful is falconerFs case in elucidating the meaning of PactF Burden and standard of proof re,uired for issue of whether the accusedFs act was voluntary< Burden lies with prosecution though it can be presumed (unless proven otherwise) $tandard re,uired would be beyond reasonable doubt K< ways of describing 9voluntary conduct: in GalconerD Act done with volition7 voluntary7 willed act7 K< distinction between the 9act: of the person and his 9intention:D 5he re,uirement of 9willed act: involves substantially or precisely the notion of an act done with volition or voluntarily (i.e. intention to act7 presumed by conduct) whereas the intention of the person in an offence would be the desire or intent to effect a result of choice (need to prove).

@valuation of the Case

2.& Causation
Gor 2@$AH5 crimes< connection (causation) between the accusedFs conduct and proscribed harm for liability

GAC5AAH causation< would the harm have happened ,ut for the conduct of the accusedD o AccusedFs conduct as necessary or indispensable conduct of the harm alleged o 9but for: test 4ecessary but insufficient condition # must consider legal causation (imputable causation) H@%AH causation< moral or value -udgment of whether ACFs conduct is such that he or she should be attri,uted wit# ,lame for causing the proscribed harm P$AB$5A45IAH CAA$@F test o /hether the accusedFs conduct su,stantially contri,uted to the causing of harm o 1arm must be an 9operating and substantial cause: o $ubse,uent events may be novus actus interveniens # brea0s the chain of causation o 5est to determine 4AI< reasonable foresight test /hether the accused ought to have reasonably foreseen the occurrence of the subse,uent intervening act or eventD If 43< 4AI7 accused not causally responsible If J@$< 435 4AI7 accusedFs conduct considered as continuing cause of the harm. o =alue -udgment # appropriate since dealing with imputable cause Causation in 3*I$$I34$ and 2@$AH5$ C2I*@ o Causal effect of an omission< permits causal factors to produce the proscribed harm

re,uirements to establish criminal liability for omissions in respect of result crimes 3mission must have been 9ille al: as defined in s") ?C 3missions must have caused the proscribed harm Asually satisfied by proof of factual causation I.e. If result would not have occurred BA5 G32 the accusedFs omission then the accused will be said to have legally caused the result 2ationale< restriction imposed by & st re,uirement demanding

2.& Crimes in0ol0in actus reus only


Crimes not re,uiring the sub-ective *2 element 4o need for *2 to be proven $ub-ective mental state of the accused is immaterial groups< negligence and strict liability Criminal 4egligence o 4egligent conduct performed in specific circumstances or which produce specified result @8ample< 4egligent (specific circumstance) 6riving (conduct) s. .' of ?enal Code @8ample< Causing death (specific result) by negligent act (conduct) s. )!"A of ?enal Code o @valuation of negligence< standard of the hypothetical reasonable person (o,5ecti0e) o 3nly mental state needed< bare intent to perform the conduct (must be voluntary E A2) $trict Hiability o Incriminates people purely based on conduct and wit#out need to pro0e any fault element includin ne li ence o Bare intention to perform the conduct (must be voluntary # A2) o %enerally minor crimes serving regulatory function

"

!. Criminal 1efences
/here defence operate to negate the offence elements (i.e. A2 or *2) o i.e. unsoundness of mind7 mista0e of fact7 into8ication7 automatism etc.) /here defences are e8traneous to the offence elements (i.e. confession and avoidance) o Concede A2 and *2 o But raise defence to -ustify # i.e. provocation7 duress7 ?6 etc.

$. -cope of criminal lia,ility


@8pansion of scope of criminal liability Inchoate o 3ffence embryonic in nature (crime still in its early stage) o i.e. Conspiracy7 attempt Conspiracy # mere agreement to carry out the crime still ma0es one liable. Attempt # where crime is almost complete but thwarted.

$econdary o i.e. Abetment Ioint o i.e. Common intention7 common ob-ect Common intention # different roles in armed robbery7 but all those involved are imputed the common intention to commit armed robbery as if they were the actual perpetrators. ( Assisting in crime or instigating someone to commit the crime.

Common ob-ect # unlawful assembly7 all present will be found to have a common ob-ect7 despite only one leader.