Wednesday, March 30, 2011
Tuan M had a fight with his wife Puan K. To calm the situation, Tuan M decided to leave the house and live separately temporarily. Puan K who was distraught did not want to let Tuan M leave just like that. She ran out chasing Tuan M who was turning on the car ignition. Tuan M who did not hear his wife’s screams immediately reversed his care without looking back. After that he sped off. Unfortunately Puan K who was chasing Tuan M had fell and was hit by Tuan M’s car. This was not realized by Tuan M.
Discuss whether Tuan M may be charged for the offence of murder or of other offences. Consider also the causation issue if he is charged under section 304A.
The question does not indicate death of Puan K. Supposing the death took place, can Tuan M be charged for causing death by negligence under s.304A of Penal Code. s.304A says that if Tuan M had caused the death of Puan K by any rash or negligent act not amounting culpable homicide, he shall be punished with imprisonment for a term which may extended to two (2) years, or with fine or both.
Two important elements for causing death be addressed at first instance i.e actus reau and then mens rea. In order to establish actus
the ‘but for’ test should be applied. The question to be raised is that the death of Puan K would not have happened but for the negligence act of Tuan M. Indeed, Tuan M’s action of reversing the Car without paying any attention to her presence near the car, had caused the death. reus
Criminal rashness and criminal negligence are two different things (PP v Mahfar Sairan). The accused can be charged for rash and negligence and it would not prejudice the accused (PP v Mahfar Sairan).
Now we shall consider the element of mens rea. In order to establish charges successfully the prosecution has to prove that Tuan M was rash in his action or negligent. In Empress of
v Idu Beg, the accused struck his wife a blow on her left side with great force. She died from a ruptured spleen. The spleen was slightly enlarged at the time of the blow. The trial judge held that culpable homicide had not been committed as the accused lacked the necessary mens rea for s.299 and convicted him under s.304(A). s. 304A spelled out rash and negligence as proof of mens rea. What is meant by rash under the s.304, is best explained in the case N Nagabushanam, the court held that rash refers to act done by accused, which he is aware or conscious that it may cause injury or damage but he insisted to take the risk. He believes that he has taken sufficient precaution or care. The important factor to be considered is whether the accused was aware. From the scenario above Tuan M was not aware of Puan K’s present behind the car thus this element is negated. India
Further, in the above, case also the court defined negligence as an act done by the accused without consciousness or awareness of the consequences. The test for negligence is the reasonable man test which is an objective test under the circumstances. Thus a reasonable man placed under the situation as the accused would have known the probability of injury sustained by Puan K (Adnan v Kamis v PP). Such facts are for the Court to consider. The degree of negligence required is lesser than what is required under English law of manslaughter by negligence (Adnan Bin Khamis v PP).
However, one important issue to be addressed here is the causation. Was the chain of causation broken by the very fact of falling on the ground due to own fault. In Lee Kim Leng, the Court while examining the causation, held that the death must be direct result of the accused’s rash or negligent action. Further, the action must be proximate cause of the death and efficient cause without any intervention from other negligence. It must have been the causa causans; it is not enough that it may have been the causa sine qua non. In R v
, the court held that if the injury was caused by other factor, the chain of causation had been broken. There would not have been injury to Puan K if she did not fall. Again this is an objective test for the court to determine but however based on s.304, the death was not a direct result but an intervention of Puan K’s own negligent. Therefore Tuan M will get an unconditional acquittal. Jordan
Puffy (P) and Jenny (J) are a happily married couple. P is a famous rap singer whilst J is a former Miss World. P is someone who is always moody and possessive. He easily gets angry especially when he is commented on his height difference with J who is far taller than him.
One night, P and J went to the ‘Hot Sportz’ night club and drank a large amount of liquor. While leving the night club, Puffy accidentally knocked Schwarzeneger (S), J’s old boyfriend at high school. S still harbours ill feelings against P who had taken his girlfriend. S snapped at P and shouted, “Watch where you’re going Shorty!” J who was staggering behind P also fell when she tripped on S’s foot. P tried to get up to held J. S slapped J’s rear end and said, “Why do you waste our time with this Humpty Dumpty? Anytime I can keep you company” P who tried to contain his anger told S to shut his mouth.
Without any excuse, S pushed P causing him to fall again. With a big laugh S said, “Hey Shorty, go pick on someone your own size!” Hearing these words, P got really angry and took a nearby stool and hurled it towards S. Both of them pounded their fists and each other. Finally P took a beer bottle and hit S head. P then fainted and was unconscious for 6 hours. Meanwhile S was rushed to the hospital but unfortunately he was pronounced dead upon arrival there.
The autopsy showed that S had 400 mg of alcohol in his body while P’s urine test indicated that he had 250 mg of alcohol in his body. The cause of death was severe haemorrhage caused by a fractured skull. According to published statistics, a person having a concentration of 215 mg of alcohol in his body was in certain state of intoxication. According to the medical officer, P was still dazed after regaining consciousness and could not remember what happened the night before. P was unsteady on his feet, unable to walk a straight line and unable to stand steady on one leg.
Discuss the defence(s) that P can plead if he is charged for the offence of murdering S.
Based on the above, as far as the actus reus of the offence is concerned, the only requiring consideration is whether S’ death was caused by P’s action. Apparently P’s conduct was a factual cause of death. That is to say, but for P’s fatal blow on the head, S would not have died. The onus is upon the prosecution to prove that P’s action were legal cause of death. Supposing the prosecution has successfully established charges against P for the murder of S. We shall look at the available defences for P under the circumstances.
P may raise the defence of intoxication. Under s.85(1) of the Penal Code states that exception to s.86, intoxication shall not constitute a defence to any criminal charge. However, s.85(2)(b) states that intoxication shall be defence if the accused did not know what he was doing and further the sub-section (2)(b) provides that the intoxication led to insanity. Unlike the position in England, the defence of intoxication is an absolute defence under the Penal Code which successfully established would render the accused unconditional acquittal, whereas in England it only reduces sentences. P had voluntarily consumed alcohol drinks. At the material time of the offence P had consumed a large amount of alcohol. Does the defence of intoxication available to someone who had voluntarily caused himself intoxicated. It is important to note that the s85(2)(b) does not state whether the intoxication was voluntary or involuntary. In PP v Teo Heng Chye, the court accepted the defence of intoxication although the accused was under self induced intoxication and determined the case based on whether the accused had any criminal intention to commit the offence. Even though there is no expressive provision in the section to the criminal intension, yet the Court would take into consideration this factor in deciding a case (Seah Eng Joo v PP). P’s urine had more alcohol than the published statistic, thus P had suffered insanity under s.85(2)(b) due to intoxication thus he did not know what he was doing and at the same time he did not realize that his action was wrong. Thus P would successfully raise the defence of insanity which would exclude him from having any criminal intension (Suba Singh v PP).
P also can raise the defence of unsoundness of mind under s.84 of the Penal Code. The ingredient of the defence of insanity laid down in M’Naghten Rules but however in
it is used in modified form in accordance with the s.84. In order to establish the defence P has to prove that he suffered unsoundness of mind at the material time of the incident and that negated his capacity to know the nature of his conduct and further he did not know what he was doing was wrong and contrary to law. Malaysia
Because of higher limit of alcohol in P’s urine indicated that he suffered unsoundness of mind at the time of hitting S with bottle. P has to indicate due to his alcohol consumption he had suffered mania, that cause the accused to act on irresistible impulse. Irresistible impulse is not defence under s.84 (Sinnasamy v PP) but however it is recognised if the cause is due to mania which would render the accused incapable of knowing his act is wrong or contrary to law (Jusoh v PP). Such matter (incapable of knowing) must happen or take place naturally, unintentionally, unplanned and beyond the control of the accused (Lakshman v Dagdu). When P was incapable to use his mind as a normal person, he is incapable to understand the nature of his conduct (Ashiruddin Ahmad v E). The conduct here referred to the physical aspect of the act (R v Codere). Whether the unsoundness of mind was permanent or temporary, long or short period, the defence is available.
The last point for P to prove of his knowledge of knowing the act to be wrong or contrary to law. P knows his physical act does not disqualify him from relying on this defence. Further P should be proven to know his act was wrong or contrary to law (Geran Ali v E). The wrong stated here refers to the aspect of morality (Stapleton v T.Q). The Court prefers two different approaches i.e. conjunctive and disconjunctive.
In Ashiruddin Ahmad v K the accused killed his son because he was instructed by someone from heaven, the court held that when he committed the offence he was incapable to know that the act was wrong. Thus based on the above, P can successfully raised defence of insanity and because his temporary insanity he would be granted unqualified acquittal further he is not subject to repeat his conduct thus safe custody is not required.
P also can raise the private defence under s100 of the Penal Code for voluntary causing of death. To successfully raise this defence P has to show the assault has reasonably caused P to apprehend that death will be imminent as a consequence of such assault [s.100(a)]. The fight between P and S had put P on reasonable apprehension of danger that he and his wife might be grievously hurt and that he has no alternative than to injure the attacker (R. v Cummings). The right for private defence commences immediately upon reasonable apprehension of danger and there is now requirement for P to be injured first before exercising this defence (Ya Bin Daud v PP). Even though P had attacked S by hurling a stool at him yet the private defence is still available to him because of the facts and circumstances (PP v Abdul Manap).
Thus, those are the defences available to P in case of charges for murder of S.