Wednesday, March 30, 2011

Criminal Law 2000 - Q5

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 reus 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.

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 India 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.

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 Jordan, 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.