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 (2004) – C.A. (SG)

� Ismail bin Hussin v. PP (1953) – C.A. (Malaya)

B. Intention can be inferred from the conduct of the accused and surrounding circumstances.

� Ismail bin Hussin v. PP (1953) – C.A. (Malaya)

� Tan Buck Tee v. PP (1961) – C.A. (Malaya)

C. A person does not intend the natural and probable consequences of his act (rejection of Smith doctrine).

� Yeo Ah Seng v. PP (1967) – C.A. (Malaysia)

1.2. Knowledge

A. Bare state of conscious awareness of certain facts (human mind remains simple and inactive).

� Jai Prakash v. Delhi Administration

B. Wilful blindness may amount to knowledge.

� PP v. Tan Kiam Peng (2007) – H.C. (SG)

1.3. Rashness

A. Rashness is not negligence

� PP v. Teo Poh Leng (1992) – H.C. (SG)

� CONTRA State v. Bishnu Prasad Das

B. Minimising/aversion of risk does not mitigate rashness

� S Balakrishnan v. PP (2005) – H.C. (SG)

1.4. Recklessness

A. Rashness is the same as recklessness

� Seah Siak How v. PP (1965) – H.C. (SG)

1.5. Negligence

A. Standard of criminal negligence is the same as civil negligence.

� Lim Poh Eng v. PP (1999) – H.C. (SG)

� Ng Keng Yong v. PP (2004) – H.C. (SG)

B. Difference between criminal and civil negligence in the standard of proof.

� Lim Poh Eng v. PP (1999) – H.C. (SG)

� Ng Keng Yong v. PP (2004) – H.C. (SG)

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Physical Elements ( actus reus )

2.1. Conduct

A. Acts include illegal omissions.

Words referring to acts include illegal omissions

32. In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.

B. Act denotes a series of acts (same applies to omission)

“Act” and “omission”

33. The word “act” denotes as well a series of acts as a single act; the word “omission” denotes as well a series of omissions as a single omission.

C. Illegal covers offences, things prohibited by law or that which furnishes ground for civil action

“Illegal”, “unlawful” and “legally bound to do”

43. The word “illegal” or “unlawful” is applicable to every thing which is an offence, or which is prohibited by law, or which furnishes ground for a civil action: and a person is said to be “legally bound to do” whatever it is illegal or unlawful in him to omit.

D. Voluntary assumption of responsibility results in a duty of care

� R v. Taktak (1988) – C.A. (New South Wales, Australia)

2.2. State of Affairs

2.3. Conduct + Circumstances/Results

A. Criminal act must be done voluntarily

� R v. Falconer (1990) – H.C. (Australia)

2.4 Causation

2.5 Crimes involving actus reus only

3. Criminal Defences

4. Scope of criminal liability

General Principles

� Commission of offence requires both Actus Reus and Mens Reus

� PP must prove both elements BRD.

o The intention to kill must coincide with the act of killing (Concurrence Principle)

o Rare instances where the concurrence of both elements do not occur

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1. Fault Element (Mens Rea)

� Subjective approach to determining presence of mens rea.

� Incorporation of the maxim (actus non facit reum, nisi mens fit rea) into the Penal

Code in 2 ways:

o Expressly included the fault element in the definition of a crime

Unless the statute states rules out the need for MR, a person cannot be

found guilty unless he has got a guilty mind

o Indirectly included via general exceptions of PC

E.g. mistake of fact and accident: effect is to deny any fault

Applicable to offences in PC and outside:

Even if crime does not provide for a fault element

Not strict liability unless the statute expressly ousts the application of the

general exceptions

1.1 Intention

� Conscious purpose to achieve a result/commit an act (short of a desire).

o “Requires something more than the mere foresight of the consequences, namely,

the purposeful doing of a thing to achieve a particular end” (Jai Prakash v.

Delhi Administration [1991])

� Knowledge of absolute certainty.

o Nelson’s Indian Penal Code – if “the doer of an act knows that his act will result

in death, he should be deemed to have intended to cause death”.

o Ratanlal and Dhirajlal’s Laws of Crimes – “[a] consequence is deemed to be

intended, though it is not desired, when it is foreseen as substantially certain”.

o However, s300 envisages knowledge as being different from intention.

S300 (d) – What is the difference between knowledge of absolute certainty

vs. knowledge in all probability?

o Any lesser form of knowledge than the above will NOT be intention - i.e.

substantial and virtual certainty (oblique intention) insufficient for intention

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The knowledge must be

� (i) as to the result and

� (ii) absolute in order to infer a purposeful intent

o (i.e. when A knows to an absolute certainty that his act

will kill B, he will satisfy intention even if he did not want

to bring about the purpose)

Criticisms: but if so, then there isn’t a need for s300(d) – since knowledge

that the act will in all probability cause death can be considered as

intention (or is an even higher degree of knowledge required to constitute

intention?)

� Need not be pre-mediated (can be formed on the spur of the moment).

� Can be inferred from the conduct of the accused and surrounding circumstances.

� Ismail bin Hussin v PP [1953]

Facts � AC and friend visiting padi field when they encountered Omar and Rifin who were hunting.

� Omar shot dead, Rifin injured.� AC convicted for murder of Omar, attempted murder of Rifin.� Appealed: trial judge misdirected the assessors on the evidence and

his intention in respect of the offences charged.Offence / Defence

Murder – s300 and attempted murder - s307Lack of intention: did not recognise Omar and mistook him for a terrorist

Legal Issues � Whether the accused had the intention to kill Rule or Holding � Intention required to constitute to murder is not necessarily an

intention to kill an identified person. � Intention need not be premeditated but can be formed suddenly� Intention can be inferred from the conduct of the accused and

surrounding circumstances Judgment/Result

Appeal allowed. Retrial for the first conviction; and VCGH with 3 years’ imprisonment for the second conviction.

Reasons for Decision

Murder � Too much importance attached to the issue of the challenge (which

carries no legal weight in itself)� Circumstantial evidence like sighting of a man and shooting at

close range implies an intention to kill � Highly unlikely that accused had premeditated design to kill

anyone or even fire� Accused most probably saw a man and fired at once, on impulse,

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without any conscious or reasoned though � BUT an actual intention to kill a human being, though formed on

impulse and on suspicion that the person is a terrorist, is in law a murderous intention.

Attempted Murder � Accused fired at Rifin’s legs � Interpreted by the Court as “not unusual to prevent escape ... where

the definite intention is not to kill” – Not an intention to murder.Evaluation � Significance: intention need NOT be premeditated but can be

formed suddenly � Relevance of premeditation, motive and malice in determining

intention to kill� Premeditation – unnecessary for intention since intention to kill

can be formed on impulse and without premeditation (cf: Tan Chee Wee – where it was held that premeditation not required for intention)

� Motive – may be suggestive of intention though not ingredient for murder (cf: Yeo Ah Seng)

� Malice – insignificant since murder can be established without requiring accused to have recognised victim (i.e. kill to ease pain without malice) but can suggest intention

Q: Possible to have intention to kill when accused shot victim “on impulse – without any conscious or reasoned thought”? � No, intention involves purposive bringing of a certain result or

absolute certainty, not possible without conscious or reason thought? � It could be possible that he acted on impulse, but unlikely that it

was without conscious or reasoned thought cause this would means that there is a lack of intention (purposive intent) + could have been automatism (which negates AR).

Q: Court relied on AR to prove the MR of the accused in the 2nd charge of attempted murder – permissible? � Yes, since intention or subjective 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 MR (i.e. corroborative evidence shows that he intended to kill - close distance, use of firearm, aimed for vital parts, multiple shots etc)

� Onus of proving intention beyond reasonable doubt on prosecution.

� Tan Buck Tee v PP [1961]

Facts Accused was an employee of a wholesale fishmonger in Johor Bahru.Victim suffered 5 grievous wounds.He stabbed to death a co-worker and appealed against his murder conviction on ground of misdirection of jury by the trial judge.

Offence / Defence

Murder – s300Judge misdirected jury

Legal Whether the intention to kill can be deduced from the evidence.

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IssuesRule or Holding

� The meaning of intention must conform to the definition of the offence charged (i.e. in this case, murder)

� The (existence and nature of) intention are to be deduced from the evidence

� The PP bears the onus of proving the intention Judgment Appeal dismissed, accused convicted of murder. Reasons for Decision

Definition of MR for murder – s300 � Trial judge was wrong in holding that “doing an act which one knows is

likely to cause death” as s299 when s300(b) clearly stated that it amounts to murder

� Trial judge was wrong in directing that accused must be convicted of murder when the accused contemplated that serious harm is likely to occur

� However, s300 requires the contemplation of death

Deduction of intention from evidence � The body had 5 appalling wounds – i.e. wounds penetrating heart and

liver which must have been caused by a heavy sharp instrument like an axe � No other evidence as to the circumstances surrounding the killing; no

question of insanity, provocation, self-defence or other defence raised

Onus of proof � Inaccurate to require the accused to satisfy the jury “on the balance of

probability” when denying the prosecution’s case � Entitled to acquittal if accused manages to raise reasonable doubt in

the prosecution’s case Evaluation Significance: Intention can vary according to the offence within the PC (must

conform to the offence charged)

Q: error made by trial judge in instructing the MR for s300 PC� Trial judge was wrong in holding that “doing an act which the offender

knows to be likely to cause the death of the person to whom the harm is caused” as s299 when s300(b) clearly stated that it amounts to murder

� Trial judge was wrong in directing that accused must be convicted of murder when the accused contemplated that serious harm is likely to occur when s300 requires the contemplation of death

Q: since intention is a state of mind, how to prove and what degree of proof required?

� Intention state of mind degree of proof required = beyond reasonable doubt

� Nature and existence of MR to be deduced from evidence

� Rejection of English doctrine that a person intends the natural and probable

consequences of his act.

� Yeo Ah Seng v PP [1967]

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Facts Man appealed against conviction of murder. Offence / Defence

Murder – s300 Defence of insanity (insane intoxication)

Legal Issues � Judge failed to direct jury adequately or properly on question of insanity

� Judge failed to direct jury’s attention to the fact lack of motive as an indication of insanity + not told that victim and accused were on good terms

� Judge was wrong to emphasize on maxim that “every man intends the natural and probable consequences of his act”

Rule or Holding � Medical evidence on insanity not contradicted – should not have deprecated the expert opinion and directed that the expert opinion was based on assumptions

� Motive not ingredient for offence of murder BUT lack of motive in this case was an indication of insanity + judge should have told jury of victim and accused’s good terms

� Presumption that “every man intends the natural and probable consequence of his act” should be avoided when dealing with intention of murder

o Serious threat to any rational theory of intention – not true that that “every man intends the natural and probable consequence of his act”

o Presumption rejected in Canada and Australia (must prove actual intent for murder)

Judgement/Result

Appeal allowed, kept in safe custody pending order of Governor

Reasons for Decision

� Smith doctrine implies that the intention of any man should be objectively determined

� PC requires INTENTION to be determined according to whether the accused actually possessed a particular form of subjective mental state

Evaluation Significance: Rejection of smith doctrine – intends natural and probable consequences of his conduct (objective test)

� Difference between intention, desire and motive

Intention Desire MotiveTechnical concept denoting a mental state in which accused acts with the purpose to bring about a result

Emotional or motivational element which may or may not be present in intention

Emotional force behind accused’s conductBad motive not prerequisite to guiltNot a defence: intention may be criminal while motive may be righteous

� Mohammed Ali bin Johari v PP [2008]

Facts AC molested and killed girl by drowning in water.Offence / Defence

Murder – s300

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Legal Issues Difference between intention and motive.Use of motive in determining intention.

Rule or Holding Intention and motive different.Intention – Acting with a purpose to bring about result.Motive – Reason why AC behaved in a certain way.

Judgement/Result Appeal not allowed.Reasons for Decision

While motive not essential element of murder, it can “bolster inference that intention to murder was existent.”AC had intended to cause specific injury deceased suffered, which was sufficient in ordinary cause of nature to cause death.

Evaluation Significance – Motive of AC doesn’t 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 kill to silence the victim, it’s all the more likely that he intended to kill.

1.2 Knowledge

� 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” (Jai Prakash v.

Delhi Administration 1991 2 SCC 32 at 42).

� Wilful blindness may amount to knowledge

o AC knows of high probability that the facts existed but deliberately refused to

confirm this in belief that “where ignorance is safe, ‘tis folly to be wise’” (The

Zamora No. 2 [1921] 1 AC 801 at 812, referred to in PP v. Tan Kiam Peng [2007]

1 SLR 522 at [28]).

o Law regards him as morally or legally having the same level of blameworthiness

as one who had actual knowledge (EVEN though he does not have actual

knowledge)

� Knowledge - awareness of certain facts with absolute conviction or certainty as

to their existence

� Nature of knowledge constant BUT subject-matter of knowledge can differ with

context

o S300(d) – know that his act will “in all probabilities cause death”

o S321 – know that he “is likely to cause hurt”

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o Both equally certain and convicted that facts giving rise to offence exists BUT risk

of death highly probably while risk of hurt is likely

Degree of certainty Fault termAbsolute conviction or certainty as to existence

Knowledge

Lesser degree of conviction or certainty as to existence

Belief

- Reason to believeEven less conviction or certainty as to existence

Suspicion or speculation

1.3 Rashness

� Some case authorities have equated rashness with negligence (e.g. State v. Bishnu

Prasad Das (1990) 70 CLT 445 at 446).

� But YMC contended that the correct view is that there is “a material difference

between the two”:

o 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.

Imputability arises from acting despite the consciousness (per Holloway

J in In re Nidarmati Nagabhushanam [1872]).

o Negligence is on the other hand premised upon “an objective standard of

conduct”.

� PP v. Teo Poh Leng [1992] – there is a difference between rashness and negligence,

where rashness is a graver offence.

� Rashness is NOT “knowledge of the likely consequence” – Empress v. Idu Beg (1881)

3 All 776 at 780.

o Criminal rashness is 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.”

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� A person who is ignorant, in the sense of never having considered the risk, will not be

rash (PP v. Tiyatun [2002]).

� YMC contends that it would be “out of line with the structure of the Code and unduly

restrictive to insist on the recognition of death”:

o One can be found guilty of culpable homicide even if he has not contemplated

death.

o Many cases address the question of advertence to risk in more general terms (e.g.

dangerous or wanton act in Empress v. Idu Beg).

o Test of negligence under s. 304A is generally couched in terms of the

foreseeability of death or injury.

Fault type Premise of criminal blameworthinessNegligence Objective standard of conductRashness Accused’s actual knowledge of the risk of harm produced by his conduct

(subjective)No rashness when accused believed that he had taken precautions which completely removed any risk of harm because then the accused would not know of the risk (if so, negligence for failure to meet to the objective standard of conduct?)

� S Balakrishnan and Another v PP [2005]

Facts Commando dunking killed 1 trainee (SGT Hu) and grievously hurt another (CPT Ho).

Offence /Defence

Abetment by illegal omission for 1st accused (course commander) and abetment by instigation for 2nd accused (supervising officer)1st accused – inter alia, that (c) dunking was permitted by the training rules, and in any case, an act not in compliance with the training rules was not a rash act under the PC 2nd accused – inter alia, that (c) that he had not been rash or negligent

Legal Issues Whether the dunking amounts to a rash act under s338 PCRule or Holding Issue of culpable rashness

Empress of India v Idu Beg:Criminal rashness is 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. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences.PP v Teo Poh Leng approving Holloway J in Re Nidamarti Nagabhushanam:Culpable rashness is acting with the consciousness that the 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 precaution to prevent their happening. The imputability arises from acting despite the consciousness (luxuria).

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Judgement/Result

Appeals dismissed, sentence enhanced.

Reasons for Decision

� Accused “clearly acted with the consciousness that submerging trainees' heads underwater may result in the trainees aspirating water leading to drowning”, conscious that “dunking may cause injury including endangering life resulting in grievous hurt”.

� Judge also found that dunking was not permitted under the CST lesson plan

Rash act on 2 nd accused’s part: � Conscious of the danger inherent in the manner of dunking

stipulated by him but still instructed his subordinates to carry on with the act in that particular manner.

� May have believed that he had minimised or even averted the danger by setting down certain guidelines for the instructors, but his criminality lay in his running the risk of doing the act. [note criticism here – if danger averted then not considered “rash” anymore, should be negligent since there is no consciousness of any risk]

� Failure to supervise or stop the instructors from going beyond the guidelines he set showed a recklessness or indifference as to the consequences of the dunking.

Rash act on 1 st accused’s part: � Brigade commander witnessing and commending it is “very good

training” o BC not called to corroborate claim o BC witnessed dunking in washing bay which was found to be

much less dangerous (4 - 6 inch v 23 inch of water)� Accused thought dunking would not be dangerous so long as the

"three dips, five to ten seconds per dip" rule was adhered too Accused was present when Cpt Ho was dipped and would

have seen that the dunking exceeded these parameters. o He must have realised the danger, but did nothing about it.o Experience of instructors carrying out the dunking and the

fact that there were no casualties during the previous two CST courses were immaterial if safety guidelines were not adhered to during the 80th CST course.

� Lack of education (sec 2) + did not realise danger inherent in act of dunking

o Does not require university education to realise that dunking is extremely perilous

o s 304A merely requires the court to consider whether "a reasonable man in the same circumstances would have been aware of the likelihood of damage or injury to others resulting from [his] conduct" [objective standard] – per Ng Keng Yong v PP

o Therefore, any reasonable man in the same circumstances would have known that the acts carried out were rash, and there was no reason to believe that the 1st accused would honestly have thought otherwise.

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Evaluation of the Case

Criticism: HC was incorrect in stating that (in relation to s304A) accused was rash if “he believed that he had ... averted the danger”

1.4 Recklessness

� Purely subjective test

o Some cases have equated recklessness with rashness – Yap Sing Hock v. PP [1992]

2 MLJ 714.

� Subjective & objective elements

o However, some cases have adopted the UK approach in R v. Reid [1992] 3 All ER

673 at 693 (PP v. Zulkifli bin Omar [1998] 6 MLJ 65):

o “[A person is reckless if] he recognised that there was some risk of that kind

involved, but nevertheless went on to take it; or … that … he did not even address

his mind to the possibility of there being any such risk, and the risk was in fact

obvious.”

� Singapore courts have indicated the similarity between reckless and rashness in

Seah Siak How v. PP.

� Not in the PC but other statutes (Road Traffic Act)

� Intention vs. knowledge vs. rashness/recklessness

Intention Knowledge Rashness/Recklessness“a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end”

Jai Prakash

“A 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

“culpable rashness is 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 precaution to prevent their happening”

NidarmatiPurpose Knowledge but no

purposeKnowledge but indifference

1.5 Negligence

� Standard of criminal negligence is the same as civil negligence.

� Difference between criminal and civil negligence in the standard of proof.

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o Criminal requires 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

� Accused’s conduct to be measured against the conduct of a reasonable person with the

same knowledge, experience and skill expected and in the same/similar circumstances

� Lim Poh Eng v PP [1999]

Facts TCM practitioner caused grievous hurt to a patient who visited his clinic for colonic wash-outs PP: accused was criminally negligent in prescribing treatment without proper training in the procedure and use of equipment, and without any understanding of the risks and complications involved.Defence: 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 likelihood (rather than possibility) of injury.

Offence / Defence

S338 - VCGH

Legal Issues Whether the standard of criminal negligence is higher than the standard of civil negligence? Whether the degree of negligence should be likelihood or possibility

Rule or Holding � The standard of negligence required in criminal cases are the same as that in civil cases – Nettleship v Weston

� Despite having the same standard of care as civil negligence, 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 workable

On issue of degree of negligence - likelihood (proposed for intermediate standard) or possibility (for civil standard):

1. civil standard of negligence varies in accordance with the circumstances i.e. present case – medical negligence, bolam test

2. two sources for the phrase "likelihood" do not support an intermediate standard of negligence for criminal cases

a. Adnan v PP and Woo Sing v PP – used reasonable man’s test but unclear if civil or intermediate standard

b. Michael A. Jones on Med. Neg. – likelihood used in context of remoteness, not standard

Judgement/Result

Convicted of s338 PC

Reasons for Decision

Following SGHC cases of Woo Sing v R (1954) and Mah Kah Yew v PP (1969-1971)

Evaluation of the Case

Significance: SGHC laid down definitive standard of care for criminal negligence

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� Ng Keng Yong v PP [2004]

Facts First AC was Office of the Watch (OOW) of RSS Courageous and the second accused was a trainee OOW when the vessel collided with a merchant vessel.4 crew members died, AC convicted of s304A for causing the death by negligently navigating the vessel across the path of the merchant vessel. They appealed against conviction.

Offence / Defence

S 304A – causing death by a negligent actStandard should be that of a reasonable trainee OOW and not the higher standard of care of a reasonable qualified OOW; that objective standard is inappropriate for criminal charge as “status of trainee diametrically opposed to concept of MR, still training to know what is right or wrong” and the court should apply the subjective standard

Legal Issues � Whether the standard of care is that of a reasonable trainee OOW or qualified OOW?

� Whether there is a distinction between “rashness” and “negligence” in s304A

Rule or Holding � The standard of care for criminal and civil negligence is the same – per Lim Poh Eng

� Since Nettleship v Weston applies to civil negligence, it similarly applies for criminal negligence – standard of care required would be that of an objective standard of a skilled, experienced and careful drivero Supported on the ground that the recognition of varying standards

of care would make the law too uncertaino Duty of care should be tailored not to the actor, but to the act

which the accused elects to perform� Despite having the same standard of care as civil negligence,

there is a distinction maintained between criminal and civil negligence in terms of (i) standard of proof and (ii) causation test.

o Further requirement in criminal negligence for PP to prove a particular type of injury suffered in order to charge.

Only death and grievous hurt.� S304A does not require proof of intention or knowledge

(subjective MR)� The relevant MR is rashness or negligence – Re Nidamarti

approved in Teo Poh Leng: o Culpable rashness is acting with the consciousness that the

illegal and mischievous consequences may follow, but with the hope that they will not and often with the belief that the actor has taken sufficient precaution to prevent their happening. The imputability arises from acting despite the consciousness (luxuria)

o Culpable negligence is acting wit hout the consciousness that the illegal and 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. The imputability arises from the neglect of civic duty of circumspection .

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� Correct approach : whether a reasonable man in the same circumstances would have been aware of the likelihood of damage or injury to others resulting from such conduct – per Adnan v PP

� Policy considerations: No reason to lower the standard of care for trainee OOW because allowing OOW control was part and parcel of the training in RSN

o Welfare of RSN trainees v wider interest of other RSN personnel and other vessels/crews at sea

o Demand any less would unduly place lives and property of other innocent parties at risk

Judgement/Result

Convicted of causing death by a negligent act

Reasons for Decision

� The standard of care required of the accused was that of a reasonable qualified OOW

� Accordingly, a reasonable OOW in the circumstances would have the requisite knowledge and thus the MR for s304A was satisfied.

Evaluation of the Case

� Illustrate the objective nature of criminal negligence – akin to negligence in tort

� Significance: distinguishing between rash and negligent act � Significance: sought to distinguish between criminal and civil

negligence (Q about standard of care required)� Q: what is the difference between the fault element of rashness

and negligence? Which is more culpable and why?o AC knows of the presence of the risk in rashness but not in

negligence.o Rashness is more culpable because he knew of the risk, yet

still proceeded with the act. Whereas in negligence, he did not know at all of the risk.

� Q: what is the difference between rashness, intention and knowledge?

o The similarity between the 3 would be the level of knowledge involved in the awareness or likelihood/risk of the outcome.

o Intention requires an absolute certainty of a result occurring, while knowledge only requires the certainty of the existence of the fact and reckless, the likelihood of the act resulting in the outcome.

� Q: fairness of the case – whether right to hold the “best competent standard” for the trainee OOW as insufficient? Note: arguments against include why negligence should not remain solely civil but creep into the criminal given its objective nature?

2. Physical Element (Actus Rea)

� Crimes involving conduct

� Crimes involving state of affairs

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� Crimes involving conduct and circumstances/ results

� Requirement for conduct to be “voluntary”

� Requirement of causation for crimes involving results

� Crimes involving actus reus only

o No need for proof of a subjective fault element

o Crimes based on negligence

o Crimes of strict liability

2.1 Conduct

� Commonsensical way of interpreting acts by Murphy J in Emperor v. Bhogilal

Chimanal Nanavati

o Something short of a transaction which is composed of a series of acts, but cannot,

in the ordinary language be restricted to every separate willed movement of a

human being; for when courts speak of an act of shooting or stabbing, it means the

action taken as a whole and not the numerous separate movements involved.”

� Liability for omissions generally restricted:

o Very few ways in which one can do action, whereas the number of ways in which

one can fail to do something is much greater

o Wholesale 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 effect, our brother’s keepers”.

o Penal Code framers – it is “mostly desirable that men should not merely abstain

from doing harm to their neighbours, but should render active services to their

neighbours

However penal law must content itself with keeping men from doing

positive harm and must leave to public opinion, and to the teachers of

morality and religion, 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 omissions?

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o YMC – “omissions are often incidental to the defendant’s practical deliberations”.

� According to framers, liability for omissions only if ILLEGAL

o S43 PC: “Illegal” applicable to everything which:

o Is an offence

Expressly made offences by the penal code

E.g. s 187 – offence for persons who are bound by law to render

assistance to public servants in execution of their public duty , to

intentionally omit to give assistance

o Or which is prohibited by law

Includes omissions which are expressly made offences but not restricted to

those

May apply to other “statutory obligations”

� E.g. s 61(2) of Women’s Charter – it shall be the duty of a

parent to maintain or contribute to the maintenance of his or her

children...

� Failure by a parent to discharge duty is prohibited by law but

not an offence in itself (It just satisfies the AR portion)

o Or which furnishes a ground for civil action

Most common - negligence

� Grounds for civil liability can form the basis of criminal

liability (Ng Keng Yong equated criminal and civil standards of

negligence*)

Establishing criminal liability from civil liability

� Special Relationships (e.g. parent and child)

o Rationale for punishment: legal obligation to take proper

care

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� Voluntary assumption of responsibility

o Rationale for punishment: undertaking of a responsibility to

take care (proximate r/s)

� R v Taktak (1998)

Facts AC addicted to and obtained drugs from one Rabih. Rabih requested that accused procure 2 prostitutes (including victim) to attend a party with him, to be paid in cash and drugs.Victim overdosed, couldn’t be resuscitated by doctor called by Rabih.

Offence / Defence

Manslaughter by criminal negligence

Legal Issues Whether by electing to help the victim and failing to seek medical attention thinking that “when 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 her?

Rule or Holding � The circumstances at common law when a legal duty arises to take action to preserve the life of another include (i) statute imposed duty, (ii) status or relationship, (iii) assumed contractual duty, (iv) voluntarily assumed care

o Where accused “made efforts to care”, court is entitled to find that the duty has been assumed

� Existence of legal duty, not moral obligation – important and determinant question

� Victim helpless from imprisonment, infancy, sickness, age, imbecility, 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

� Mere negligence not sufficient; must be wicked negligence (so great that accused was deemed as having a wicked mind, that he was reckless and careless as to whether death would result)

Judgement/Result

Convicted of manslaughter by negligence

Reasons for Decision

� If the accused declined to attend to the victim after receiving the call from Rabih, he would not be responsible for her death [no VAR, no legal duty]

� If the accused went and observed her condition and left the deceased as she was found, he would not be responsible for her death [no VAR, no legal duty]

� BUT the accused (i) assumed a duty of care for the victim, 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

Evaluation of the Case

� Significance: Illegal omission� Test for criminal negligence (Australia) is similar to the test for

gross negligence (UK common law)� Circumstances recognised by common law similarly covered by

causing death by negligent act under s304A by illegal omissions (s32

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read with s43) since acts would include omissions or series of omissions.

� Note: difference between civil and criminal negligence lies with onus of proof and exercise of prosecutorial discretion – submitted that these are inadequate safeguards against over-criminalising negligent acts (cf: Ng Keng Yong v PP [2004] 4 SLR 89, which held that the degree of criminal and civil negligence are the same)

2.2. State of Affairs

� Situational liability – usually of a “relatively minor nature” (e.g. Common Gaming

Houses Act, by which one commits an offence if he is an occupier of a public place used

for unlawful gaming).

� The 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).

2.3. Conduct + Circumstances/Results

� Conduct crimes (AR only)

o Actus reus consists of only the conduct, no requirement for circumstances or

results

“Attempts” – conduct going beyond the stage of preparation

“Conspiracy” – as soon as the agreement is concluded

� Conduct + circumstances

o Physical elements comprise not only conduct but also circumstances

accompanying the conduct OR the result of such conduct

o Conduct itself is not a crime

Becomes a crime because of the circumstance

Rape

� Conduct = having sexual intercourse with a woman

� Circumstance = without woman’s consent

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Careless Driving

� Conduct: driving

� Circumstance: without due care and attention or without

reasonable consideration.

� Conduct + RESULT

o Type of conduct criminalised if they cause a proscribed result

Conduct in itself is important BUT becomes a serious crime because of the

consequences which result

� Example: Murder

� Conduct of the accused must have caused the death of a human

being

o Conduct = stabbing, shooting, poisoning etc (means by

which accused killed)

o Result = Causing the death of another human being

� Although conduct is important, it is the result (death) which

makes murder heinous

o Comparison

Conduct crimes regarded less serious than equivalent result crimes

Compare: Dangerous driving & Dangerous driving causing death

2.4. Voluntariness

� General rule: Where AR include conduct, the conduct must be voluntary (EVEN IF

not explicitly stated)

� Voluntariness: ability of the person to control his conduct (crux: control, not

consciousness)

o Possible to be conscious and do an involuntary act – e.g. if someone pushes me.

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� Voluntariness includes some mental component: the bare intent (to be contrasted with

intention in mens rea).

o Control: involves willed human behaviour therefore there is some mental

component

� Rationale: deterrence would not be met by convicting and punishing involuntary

conduct

� Acts

o Example: Stabbing someone

Voluntary conduct (AR): bare intent to perform the conduct

o Distinguished from fault element (MR) of the crime which is the intention to

produce a certain result e.g. to harm the victim

o Example: Theft

Voluntary Conduct: taking a bag and carrying it away (AR of theft

fulfilled)

o Is there an intention to take the bag dishonestly? (MR may not be fulfilled)

� R v Falconer (1990)

Facts Victim 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. Trial judge rejected clinical evidence that the accused’s conduct was consistent with non-insane automatism. Court of Criminal Appeal held that the evidence should have been admitted – relevant to issue of whether the shooting occurred independent of the exercise of her will, for purposes of s23 Criminal Code (Western Aust)

Offence /Defence

S300 - Murder Defence of non-insane automatism

Legal Issues Whether the shooting occurred independent of the exercise of the accused’s will

Rule or Holding � To constitute to an ‘act’, the conduct must have been voluntarily performed

� The distinction between (i) a willed act and (ii) an intention to cause a result

Judgement/Resul

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t

Reasons for Decision

To be criminally responsible, the accused must have discharged the gun “of her own free will and by decision” (per Kitto J in Vallance) or by “the making of a choice to do so” (per Barwick CJ in Timbu Kolian).The distinction between “will” and “intent”� Intent usually relates to consequences; while will relates to the act

done (ordinarily presumed to have been willed) � Requirement of a willed act (aka ‘will’) corresponds with the

requirement for offender’s act to be done with volition or voluntarily (aka ‘voluntariness’)

� Requirement of willed act involves no intention or desire to effect a result by the doing of the act, but merely a conspicuous choice to do the act

� Presumption that an act done by a person apparently conscious is willed or done voluntarily BUT inference can be rebutted where there are grounds to believe that the accused was not in control of his acts (per Woolmington v DPP, R v Mullen)

� AND PP can rely on presumption to discharge onus of proving that the act was a willed act or done voluntarily (unless grounds to believe otherwise)

Evaluation of the Case

Significance: Concept of willed act/voluntariness under Australia’s Criminal Code and the common law

Q: “act” not defined within PC – how helpful is falconer’s case in elucidating the meaning of ‘act’

Burden and standard of proof required for issue of whether the accused’s act was voluntary:

� Burden lies with prosecution though it can be presumed (unless proven otherwise)

� Standard required would be beyond reasonable doubt

Q: ways of describing “voluntary conduct” in Falconer?� Act done with volition, voluntary, willed act,

Q: distinction between the “act” of the person and his “intention”?� The requirement of “willed act” involves substantially or

precisely the notion of an act done with volition or voluntarily (i.e. intention to act, 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).

2.5 Causation

� For RESULT crimes: connection (causation) between the accused’s conduct

and proscribed harm for liability

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� FACTUAL causation: would the harm have happened but for the conduct of

the accused?

o Accused’s conduct as necessary or indispensable conduct of the harm alleged

o “but for” test

Necessary but insufficient condition – must consider legal causation

(imputable causation)

� LEGAL causation: moral or value judgment of whether AC’s conduct is such

that he or she should be attributed with blame for causing the proscribed harm

� ‘SUBSTANTIAL CAUSE’ test

o Whether the accused’s conduct substantially contributed to the causing of

harm

o Harm must be an “operating and substantial cause”

o Subsequent events may be novus actus interveniens – breaks the chain of

causation

o Test to determine NAI: reasonable foresight test

Whether the accused ought to have reasonably foreseen the occurrence of

the subsequent intervening act or event?

If NO: NAI, accused not causally responsible

If YES: NOT NAI, accused’s conduct considered as continuing cause of

the harm.

o Value judgment – appropriate since dealing with imputable cause

� Causation in OMISSIONS and RESULTS CRIME

o Causal effect of an omission: permits causal factors to produce the proscribed

harm

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o 2 requirements to establish criminal liability for omissions in respect of result

crimes

Omission must have been “illegal” as defined in s43 PC

Omissions must have caused the proscribed harm

� Usually satisfied by proof of factual causation

� I.e. If result would not have occurred BUT FOR the

accused’s omission then the accused will be said to have legally

caused the result

Rationale: restriction imposed by 1st requirement demanding

2.5 Crimes involving actus reus only

� Crimes not requiring the subjective MR element

� No need for MR to be proven

� Subjective mental state of the accused is immaterial

� 2 groups: negligence and strict liability

� Criminal Negligence

o Negligent conduct performed in specific circumstances or which produce

specified result

Example: Negligent (specific circumstance) Driving (conduct) s. 279 of

Penal Code

Example: Causing death (specific result) by negligent act (conduct) s.

304A of Penal Code

o Evaluation of negligence: standard of the hypothetical reasonable person

(objective)

o Only mental state needed: bare intent to perform the conduct (must be voluntary -

AR)

� Strict Liability

o Incriminates people purely based on conduct and without need to prove any

fault element including negligence

o Bare intention to perform the conduct (must be voluntary – AR)

o Generally minor crimes serving regulatory function

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3. Criminal Defences

� Where defence operate to negate the offence elements (i.e. AR or MR)

o i.e. unsoundness of mind, mistake of fact, intoxication, automatism etc.)

� Where defences are extraneous to the offence elements (i.e. confession and

avoidance)

o Concede AR and MR

o But raise defence to justify – i.e. provocation, duress, PD etc.

4. Scope of criminal liability

� Expansion of scope of criminal liability

� Inchoate

o Offence embryonic in nature (crime still in its early stage)

o i.e. Conspiracy, attempt

Conspiracy – mere agreement to carry out the crime still makes one liable.

Attempt – where crime is almost complete but thwarted.

� Secondary

o i.e. Abetment

Assisting in crime or instigating someone to commit the crime.

� Joint

o i.e. Common intention, common object

Common intention – different roles in armed robbery, but all those involved

are imputed the common intention to commit armed robbery as if they were

the actual perpetrators.

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Common object – unlawful assembly, all present will be found to have a

common object, despite only one leader.

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