Elements of Criminal Liability

Cardinal principle to establish criminal liability: both actus reus and mens rea must be
present.
- Actus reus: Committing a forbidden act or committing that which causes a result
prohibited by law.
- Mens rea: An accompanying blameworthy state of mind
The cardinal principle is reflected in the maxim “actus non facit reum nisi mens sit rea”: An
act does not make a person legally guilty unless his mind is guilty.

Elements

Actus reus Omission Mens rea

Prohibited act or result

Actus reus:
- Sec. 33: ‘act’ denotes a series of acts as well as a single act
- Act must be voluntary or willed
- Physical movement resulting from an operation of the will
- Where movement is involuntary, conduct is said to not be willed, thus there is no actus
reus. This may result from:
- External causes will exclude accused from liability; defence of accident
(Sec. 80) would be applicable.
- Physical compulsion: being pushed
- Reflex movements: reflexive movements while being attacked
- Concussion
- Unconsciousness: movements while under anaesthetics
- Hypnosis
- Accused’s own fault
- E.g: Accused fails to eat after taking insulin despite being aware of the
risks.
- Only defence of insanity (Sec. 84) is available.
- Disease of mind
- Involuntary acts resulting from mental impairment
- Defence of unsoundness of mind (Sec. 84) is available.
Omission:
- Sec. 32: ‘act’ includes illegal omissions.
- Only illegal omission that attract criminal liability.
- Sec. 33: ‘omission’ denotes a series of omissions as a single omission
- Sec. 43: a person is said to be legally bound to do whatever it is illegal in him to omit.
Thus, sec. 43 would cover omissions of:
- Failing to act when it is an offence
- Omissions which are criminal offences under the Penal Code
- Failing to act when prohibited by law
- A voluntary obligation imposed even though its infringement may not
be an offence
- Failing to act which furnishes ground for civil action
- Where the accused is under a duty to act. Such duty may arise when:
- There is a special relationship: When a person is helpless and
unable to look after himself.
- A duty is voluntarily assumed: There is a duty to act if any
person voluntarily assumes responsibility for another, even
when there is no special relationship.
- A duty is assumed by contract
- A duty arising from the creation of a dangerous situation

- To attach criminal liability, the performance of an act must bring about a conduct or
lead to the cause of an event.
- The law must prohibit the caused conduct or result before attaching criminal
liability to it.
- The resulting liability can be categorised into:
- Conduct crimes: Where criminal liability is imposed because the
accused has done something prohibited by law.
- E.g: Possession of drugs under the Dangerous Drugs Act
- Result crimes: The crime requires the conduct of the accused to cause
a prohibited result.
- E.g: The act of the accused produces a prohibited result that is
death.

- Conduct prohibited by law differs from other conduct not prohibited by law:
- Rules of religion
- E.g: Prohibition on the consumption of alcohol within the religion
- Rules of morality
- E.g: Prohibition on telling lies
- Rules of ethics or organisations
- E.g: Prohibition on advertising of services by medical/legal practitioners
Mens rea:
- It is not enough that a defendant has simply done the forbidden act or caused the
prohibited harm, he must have done in circumstance in which he can properly be
blamed for his conduct.
- There are various forms of mens rea:
- Intention: Inferred from the surrounding circumstances and the acts of the
accused.
- R v Nedrick: When determining intention, it is necessary to ask:
- How probable was the consequence which resulted from the
defendant’s act
- Whether he foresaw that consequence
- Knowledge: A person acts in respect of an element of an offence ‘knowingly’
when he is aware that it exists/is almost certain that it exists/will exist/occur.
- Voluntariness: Sec. 39; the desire to act.
- When he acts/causes it by means where he intended to cause it.
- Rashness: Acting with the consciousness that mischievous and illegal
consequences may follow, but with hope that he has taking enough
precaution.
- Negligence: Acting without the consciousness that the mischievous and illegal
effect will follow and without exercising caution.
- Malice: A wrongful act done intentionally without just cause or excuse.
Criminal Liability
Coincidence of actus reus and mens rea:
- Criminal liability occurs when there is an act causing an effect prohibited by law
coupled with the state of mind at the time of the harmful act.
- It is a requirement that actus reus and mens rea must coincide to create criminal
liability.

- Strict Approach: strictly applies the cardinal principle that actus reus and mens rea
must coincide to attract liability.
- Queen Empress v Khandu Valad Bhavani
The accused struck his father-in-law three blows on the head and sought to
cover his death by placing firewood under his head and setting fire to the hut.
Medical evidence proved that death was really caused by the injuries from the
burning, and that the blows only amounted to an attempt to murder.
Held: The accused’s intention did not coincide with the act of setting fire to
the hut, thus he was not charged with murder.

- Palani Goundan v Emperor

The appellant struck his wife on the head knocking her senseless. Believing her
to be dead, he hung her from a beam by means of rope to fake her suicide. She
died by hanging. The accused was convicted of grievous hurt.
- The intention of the accused must be judged in the light of what he
supposed to be the circumstances. A man is not guilty of culpable
homicide if his intention is directed towards what he believed to be a
lifeless body.

- However, there are exceptions to the requirement that actus reus and mens rea must
coincide:

- Extended Act: treats the actus reus as one continuous transaction until there is
presence of the required mens rea.
- Fagan v Metropolitan Police Commissioner
Fagan, when parking his car, accidentally drove onto a policeman’s foot, at
which stage there was no mens rea. When he was asked to remove his car, he
declined, thus allowing the necessary mens rea to be present.
Held: Actus reus continued until the car was driven off the foot. By stretching
the actus reus to cover the refusal to move the car, actus reus and mens rea
did coincide.
- Series of Acts: treats a series of distinct acts as constituent parts of a larger
transaction.
- Liability may be attached where at some point in the series of acts the accused
has the necessary mens rea even if mens rea did not coincide precisely in time
with the act causing death.
- This approach extends to situations:
- Where there is a plan to kill, but the decision to dispose the body in a
particular manner is made later
- Where there is no preconceived plan to kill, but there is a clear
intention to cause death

- Thabo Meli v R
In accordance with a pre-arranged plan, the appellants took the victim to a hut
where they gave him beer, and struck him on the head while he was
intoxicated. Believing him to be dead, they rolled his body down a cliff to make
his death look like an accident. The victim died of exposure when lying
unconscious at the foot of the cliff.
- Where there were two separate acts, first to kill, and second to dispose
the body, they are treated as a series of acts in furtherance of one
transaction.
- There is no doubt that the accused set out to do all these acts in order
to achieve their plan, but just because they were under a
misapprehension at one stage and thought that their guilty purpose
had been achieved, before it was actually achieved, that does not
enable them to escape the penalties of the law. Their crime is not
reduced from murder to a lesser crime merely because the accused
were under some misapprehension for a time during the completion of
their criminal plot.

- Kaliappa Goundan v Emperor

The appellant tricked the victim on the pretext of taking her to visit a sick
relative, and later strangled her and placed her body on the railway track. She
was decapitated by a passing train, and evidence showed that the train and
not the strangulation caused her death. Their convictions of murder were
upheld and the court stressed that the victim was killed in pursuance of a
deliberate plan.
Chain of Causation
- Criminal liability for an act is established only when there is an unbroken sequence of
cause and effect in that the injury can be attributed directly to the act of the accused.
- The accused is only absolved from liability if the sequence of cause and effect
set in motion by his act is interrupted by another extraneous cause.
- The Oropesa: To break the chain of causation, there must be something
unreasonable, extraneous or extrinsic.
- R v Smith: Only if the second cause is so overwhelming as to make the original
wound merely part of the history can it then be said that death does not flow
from that wound.
- Leong Siong Sun v PP: The deceased was admitted to hospital as his intestines
were ruptured. He left the hospital on his own accord, without being operated
on. He died due to the infection and inflammation brought about by the
rupture of his intestines, which was not treated by surgery. It was argued that
the deceased was at fault, but the court dismissed the appeal as it was unable
to say that the rupture was not the operating and substantial cause, or that
the failure to operate was the cause of death.

Breaking the chain

of causation

Complications of Intervention of third

medical treatment party

Voluntary conduct of
Switching off the victim
life support
system

Improper Escape or fright Religious or other

treatment and flight beliefs of victim

Egg-shell
Unavailable or skull
inadequate situations
treatment
Complications of medical treatment:
- Explanation 2 to Sec. 299: Where death is caused by bodily injury, the person who
causes such bodily injury shall be deemed to have caused the death even though
proper remedies and skilful treatment could have prevented the death.

- Unavailable or inadequate treatment

- Explanation 2 is broad enough to cover situations where death occurred as a
result of inadequate treatment or even where treatment was unavailable.
- Morcha v The State of Rajasthan: The mere fact that if expert treatment had
been available and the emergency operation had been performed, there were
chances of survival of the deceased can be of no use to the appellant.
- Yohannan v State of Kerala: The accused stabbed his wife in the spine causing
her to suffer paralysis of the lower body, from which she died seven months
later.
- The fact that a long time had elapsed before the deceased died from
complications flowing from the original wound did not break the chain
of causation.
- The comparatively long interval of seven months was not an indication
of any unexpected intervention.
- Therefore, unavailable or inadequate treatment would not cause the chain to
be broken.

- Improper treatment
- Explanation 2 is applicable.
- Nga Ba Min v Emperor: The deceased was admitted to hospital after being
struck on the head and arm by robbers. She was discharged on her own
request, but was warned to attend daily to have the injuries dressed. Having
gone back to her village and disregarding the warning, the unskilled treatment
in her village caused her wounds to become septic, which eventually resulted
in her death.
Held: The appellant could not be held responsible for causing the death of the
deceased, as her death was due to her own ignorance and the unskilful
treatment she received, and the injuries on her head were only the remote
cause of her death.

- However, in R v Jordan: The victim was stabbed during a fight. In treating the
victim, medical witnesses showed that the administration of an antibiotic was
proper. However, the same treatment continued despite the victim proving to
be allergic to the antibiotic. The victim was also given large quantities of liquid
which clogged his lungs, thus causing his death.
Held: The appellant was convicted of murder as the treatment was palpably
wrong and produced symptoms which were the direct and immediate cause
of death.
 - Therefore, unless it can be shown that death was legally attributable to the
original injuries and not to some intervening cause, the chain can be said to
have been broken, thus absolving liability.

- Switching off life support system

- Explanation 2 extends to such situations where the deceased has been placed
on life support machines which are switched off after tests indicate brain
damage.
- R v Malcherek: The accused who caused the original injury resulting in the
deceased being placed on life support machines was held liable.
- If at the time of death the original wound was still an operating and
substantial cause, then death can be said to be the result of the wound,
despite some other cause of death that may be operating.
- Where the life support machines have been disconnected, the
discontinuance of treatment in such circumstances does not break the
chain of causation between the initial injury and the death.
- Therefore, the switching off of life support systems would not cause the chain
to be broken.
Voluntary conduct of the victim:
- Escape or fright and flight
- Where the victim dies or is hurt from injuries not directly caused by the
offender.
- R v Halliday: The appellant, whilst drunk, threatened his wife. She attempted
to escape through a window and broke her leg in the fall.
- If a man creates in another man’s mind an immediate sense of danger
which causes that person to try and escape, and in so doing he injures
himself, the person who creates such a state of mind is responsible for
the injuries which result.

- If the victim does something so unexpected, which no reasonable man could

foresee, then the voluntary act of the victim would break the chain.
- The victim’s unforeseeable act may also break the chain of causation even
though he may have very few options in effecting his escape.
- Joginder Singh v State of Punjab: The deceased ran from his house towards the
field after another person was attacked and killed. He was chased by two men,
and in order to save himself, he jumped into a well. However, the two men
were about 15 to 20 feet from the deceased when he jumped into the well.
- Where the injury or death of the victim is too remote, the accused
cannot be held liable, thus the chain is broken.

- Therefore, the chain would not be broken only when the injury or death is not
too remote.
 - Egg-shell skull situations
- Explanation 1 to Sec. 299: A person who causes bodily injury to another who is
suffering from a disorder, disease or bodily infirmity, and thereby accelerates
the death of that person shall be deemed to have caused his death.
- This imposes liability on an accused person who inflicts injuries upon a victim
suffering from an infirmity, and who subsequently succumbs to death from the
caused injuries which would not kill an ordinary person.
- “You must take the victim as you find him”

- However, an alternative view is that where the accused had no knowledge of

the victim’s illness or where the age did not suggest physical infirmity, the
accused would not be deemed to have caused the victim’s death.
- Bharat Sing v Emperor: The deceased died several days after being attacked as
he was suffering from an enlarged heart, which increased the probability of
heart failure. The court substituted the conviction of murder for voluntary
causing hurt.
- There is no evidence or reason to suppose that the accused had any
knowledge that the deceased was suffering from an enlarged heart.
The mere fact that he was an old man of sixty is insufficient to justify
that the offence was one of culpable homicide.

- Religious or other beliefs of victim

- Explanation 1 extends to situations where the deceased harbours certain
beliefs that may lead him to refuse medical treatment.
- R v Blaue: The defendant, in a violent assault, had injured the victim’s fingers.
The victim, a Jehovah witness, refused a blood transfusion which might have
saved her life, as well as the doctor’s advice for amputation. The victim then
died of lockjaw.
- “Those who use violence on others must take their victims as they find
them.”
- What caused the victim’s death was the stab wound. The fact that she
refused to stop this end coming about did not break the causal
connection between the act and death.
Third Party Intervention:
- Where the harm to the victim results from an act of a third party, the chain would not
be broken.
- R v Pagett: The accused fired at the police while using a girl as a shield to protect him
against police bullets. The girl died in the cross-fire. The accused was convicted of
manslaughter, but appealed on grounds of causation.
- There can be no doubt that an act performed for the purpose of self-
preservation, being an act caused by the accused’s own act, does not operate
as an intervening cause.