CRIMINAL LAW 1 :: UCR 2612

MENS REA
 Introduction
• Apart from proving the actus reus of a crime/offence, the
prosecution also has the duty to prove the necessary
mens rea of the accused at the material time of
commission of the crime.
• Mens rea is a technical term which can be loosely
translated as guilty mind
• It comprised of mental element of a crime which in turns
connotes a subjective state of mind eg intention or
knowledge. However, some scholars prefer the term fault
since there are many types of mens rea where in some
circumstances does not related to the state of mind of
the accused.
• Each crime requires different mens rea and to
ascertain the required mens rea reference must be
made to the specific definition of the offence.
• Nevertheless, there are certain cases where no fault
element are required to be proven by law. Thus a
person can be held liable although with the presence
of actus reus alone – strict liability offences.
 Types of mens rea
1. Intention
2. Knowledge
3. Voluntarily
4. Recklessness
5. Rashness & negligent
 INTENTION
• Intention is not specifically defined under the Penal
Code
• Some had tried to define it as “desire” – A
consequence is intended when it is desired to follow
as the result of the person’s conduct.
• Some even defined it as ‘Purpose or design with
which an act is done’.
• However, based on case law, the court had tried to
determine the scope and meaning of intention.
• Bhagwant Appaji v Kedari Kashinath (1900) ILR 25 Bom
202 –
"The word 'intent' by its etymology, seems to have
metaphorical allusion to archery, and implies "aim" and thus
connotes … one object, for which the effort is made…“
• Faqira v State AIR 1955 All 321 –
“a conscious state of mind in which the mental faculties are
roused into activity and summoned into action for the
deliberate purpose of being directed towards a particular
and specified object”
• Ram Kumar v State AIR 1970 Raj 60 –
“a purposely doing of a thing to achieve a prticular end”
• R v Nedrick [1986] 3 All ER 1 – whether knowledge as
to consequences of his actions was the equivalent of
an intention to cause those consequences
“..A man may intend to achieve a certain result whilst at the same
time not desiring it to come about…if he did not appreciate that
death or serious harm was likely to result from his act, he cannot
have intended to bring it about…if …at the material time the
defendant recognized that death or serious harm would be
virtually certain (barring some unforeseen intervention) to result
from his voluntary act, then … he intended to kill or do serious
bodily harm, even though he may not have had any desire to
achieve that result”
• Yap Sing Hock & Anor. v. PP [1992] 2 MLJ 714 –
“Intention means that a man intends to commit the
offence .. If at or before time of the commission of the
offence or the doing of the forbidden act, an accused
person has foresight, (that is knows in advance) that his
conduct will lead to the commission of the offence …
and he desires the commission of such an offence …
where foresight above - described is present, but the
desire above-described is absent, then it becomes the
mens rea for "recklessness", such as offence of causing
death by a reckless act.
• Under the Penal Code, foreseeing or knowing a
consequence to be likely or probable is not
equivalent to intending that result – s.39 –
“voluntarily” encompasses either intention or
knowledge
• Regardless of the definition given by the case law,
intention need to be examined based on the types of
offence and circumstances of the case
• Eg. – Murder and culpable homicide
 KNOWLEDGE
• No definition in the Penal Code.
• It is a forceful word that invites certainty and not mere
probability
• Knowledge and reason to believe need to be
distinguished – to know is to have mental cognition of it
whereas to believe is to assent to a proposition or
affirmation or to accept a fact as real or certain without
immediate personal knowledge
• Eg: s.411, 201,202,203,39
• In many cases, intention and knowledge were merge
together as basis of liability – ss.300, 307,368
• In Jai Prakash v State the court had distinguished
intention with knowledge:
“Knowledge of the consequences which may result in
doing an act is not the same thing as the intention that
such consequences should ensue..intention requires
something more than mere foresight of the
consequences, namely, the purposeful doing of a thing to
achieve a particular end
…knowledge as contrasted to intention signifies a state of
mental realisation with the bare state of conscious
awareness of certain facts in which the human mind
remains simple and inactive
 VOLUNTARILY
• s.39, Penal Code – A person is said to cause an effect
"voluntarily" when he causes it by means whereby he
intended to cause it, or by means which, at time of
employing those means, he knew or had reason to
believe to be likely to cause it.
• It covers three different mens rea:
a. Intention to cause
b. Knowledge on likelihood of causing the result
c. Reason to believe that there is likelihood of causing the
result
• Whenever a provision uses this term, then the
prosecution need to prove one of the mens rea only
• Eg: ss.321-327, 329-334
• PP v. Mohamad Sabu [2012] 5 CLJ 246 - The definition of
"voluntarily" was held to be resemblance to the definition of
"wilfully" under the English law. The use of the words or
expression "intended or knew or had reason to believe" in the
definition of "voluntarily" in s. 39 of the Penal Code, indicates
the requirement of mens rea in an offence
• Wilfully - A hurt, damage or other evil consequence of an act
shall be deemed to have been caused wilfully where the doer
of the act intended such consequence to result or knew or
believed that it was likely to result from his act, or where
knowing or apprehending that such consequence would
probably result from his act, he wilfully incurred the risk of
causing it.
 RECKLESSNESS
• It is not available in Penal Code but can be found other
statute such as in the Road and Transport Act
• s.41(1) of RTA :
“Any person who, by the driving of a motor vehicle on a road
recklessly or at a speed or in a manner which having regard
to all the circumstances (including the nature, condition and
size of the road, and the amount of traffic which is or might
be expected to be on the road) is dangerous to the public,
causes the death of any person shall be guilty of an offence
and shall on conviction be punished with imprisonment for a
term of not less than two years and not more than ten years
and to a fine of not less than five thousand ringgit and not
more than twenty thousand ringgit.”
• PP v Zulkifli Bin Omar – “To be guilty of the more serious
category of the offence of reckless driving the driver
(defendant) must have created an obvious and serious
risk of injury to the person or damage to property and
must either have given no thought to the possibility of
that obvious risk, or have seen the risk and nevertheless
decided to take it.”
• Based on the case, recklessness can be defined through:
– Subjective mental state of knowledge of a risk or
– Objective test of a failure to recognise an obvious risk
 RASHNESS & NEGLIGENT
• s.304A of Penal Code – Causing death by negligence
Whoever causes the death of any person, by doing any
rash or negligence act not amounting to culpable
homicide, shall be punished with imprisonment for a
term which may extend to two years or with fine or with
both.
• In general Rashness is knowingly taking on reasonable
risk, whereas negligence is unintentionally taking
unreasonable risk.
• Reg. v Nidamarti Nagabhushanam (1872) 7 Mad. H.C. 119 –
– Negligence – acting without the consciousness that the
illegal or mischievous effect will follow, but in
circumstances which show that the actor has not exercised
the caution incumbent upon him, and that, if he had, he
would have had the consciousness.
– Culpable rashness – acting with the consciousness that
mischievous and illegal consequences may follow, but with
the hope that they will not and often with the belief that
the actor has taken sufficient precautions to prevent their
happening
• Empress v Idu Beg AIR 1881 3 ALL 776
– Criminal rashness – hazarding a dangerous or wanton act
with the knowledge that it is so, and that it may cause
injury, but without intention to cause injury, or knowledge
that it will probably be caused.
– Criminal negligence – the gross and culpable neglect of
failure to exercise that reasonable and proper care and
precaution to guard against injury either to the public
generally or to an individual in particular, which having
regard to all the circumstances out of which the charge has
arisen, it was the imperative duty of the accused person to
have adopted
STRICT LIABILITY OFFENCES
 Slide Title
• If an offence expressly provides or requires certain
element of mens rea, there will be no issue with
regards to the elements of crime that need to be
proven.
• However, there are instances where the provision is
silent on the required fault or mens rea and creates
an issue of whether the law regarded the offence as
a strict liability offence?
• Eg: ss.292, 293, 294 – deal with obscene
publications, objects and acts which affect the public
decency and morals
• In these cases, the court had decided that knowledge
need not to be proved as the offence under s.292 is a
strict liability offence:
– Mohamed Ibrahim v PP [1963] MLJ 289
– KS Roberts v PP [1970] 2 MLJ 137
– PP v Tee Tean Siong & Ors [1963] MLJ 200