Chapter 7 Criminal Law

7. .1 1 I In nt tr ro od du uc ct ti io on n The term criminal law, sometimes called penal law, refers to various rules whose common characteristic is the imposition of punishment if one fails to comply withthe rules. In criminal law, a crime is considered as a wrong against the State. A crime may be defined as an unlawful act or an omission which is unacceptable that causes public condemnation in a form of sanction. Therefore, a crime is a wrong which affects the public welfare, a wrong for which the State has prescribed a punishment. It is an act or omission prohibited by law because it is injurious to the public.

Examples of crimes are assault, rape, theft, causing hurt, cheating and robbery. A person who commits a crime will be prosecuted by the State, usually through the Public Prosecutor in a court of law. The main aim of criminal law is to punish the offender and does not, as a general rule, provide compensation to the victim. The victim may recover his losses through a civil litigation. In Malaysia, definite description of acts constituting a crime and the corresponding penalty are contained in the Penal Code.

The Penal Code has provided about 400 types of offences that may subject one to punishment if the crimes are committed. 7 7. .2 2 O Ob bj je ec ct ti iv ve e o of f C Cr ri im mi in na al l L La aw w Criminal punishment, depending on the offence and jurisdiction, may include death penalty, imprisonment, whipping and fine. The punishment for some crimes such as murder is very severe and the penalty is death sentence. In order to understand how courts invoke punishment, we have, in the first place, to understand the objective of criminal law. The courts have over time recognized that there are at least three aims or purposes of sentencing an offender, namely: 1.

Retribution 2. Deterrence 3. Rehabilitation 7. 2. 1 Retribution This is most widely accepted goal of punishing an offender i. e. the criminals ought to suffer for his act. Retribution means punishing the offender to reflect society’s disapproval of the crime committed. It may also show a society’s hatred or a desire for vengeance on the person who has committed the crime. Since the offenders have taken improper advantage upon others and consequently the criminal law will put the offenders at some unpleasant disadvantage to “balance the scales”. Thus, one who murders may be murdered himself.

________________________________________________________________________________________________ IR. LAI SZE CHING © 2012 69(200) Lawton LJ in R v Sargeant (1975) 60 Cr App R 74 said: “The Old Testament concept of ‘an eye for an eye and a tooth for a tooth’ no longer plays any part in our criminal law. There is, however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass. The courts do not have to reflect public opinion.

On the other hand, courts must not disregard it. Perhaps the main duty of the court is to lead public opinion. ” In another case, R v Davies (1978) 67 Cr App R 207, Lawton LJ said again : “ … the Courts have to make it clear that crimes do not pay and the only way they can do so is by the length of sentences. Sentences show the court’s disapproval on behalf of the community, of particular types of criminal conduct”. 7. 2. 2 Deterrence Another objective of criminal law is deterrence where punishment is meted out to deter a particular offender or future offenders from committing the crime by making an example of that particular offender.

The aim of deterrence is toimpose a sufficient penaltyto discourage the offender fromcriminal behaviour. General deterrence aims at society at large whilst individual deterrence is aimed toward the specific offender. By imposing a penalty on those who commit offences, others are discouraged from committing those offences. Hilbery J in R v Ball (1951) 35 Cr App R 164 observed: “In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced not only with the

object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life.

The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. ” Usually the deterrence sentence is heavy to deter the actual offence and future offenders. It is normally applied to rampant offenders such as burglary, robbery etc. However studies have shown that the deterrence purpose has little effect on hardcore offenders. For some offenders, even a light sentence would deter them from committing the offence again. 7. 2. 3 Rehabilitation The purpose of rehabilitation is to try to reform the offender so that he can be transformed into a valuable member of society.

Themain aim is to transform the offender so that he is able to resume a normal and useful role in society. Its primary goal is to prevent further offence by convincing the offender that his conduct was wrong. The usual way to rehabilitate an offender is to impose community service or to undergo certain rehabilitation programmes. However the rehabilitation aim is losing its importance. Studies have shown that the effects of rehabilitative sentences do not vary much from retributive sentences. ________________________________________________________________________________________________ IR. LAI SZE CHING © 2012 70(200) 7 7. .3 3 E El le em me en nt ts s o of f C Cr ri.

im mi in na al l L Li ia ab bi il li it ty y The general rule to establish a criminal liability is that the offender must commit an act prohibited by law or cause a forbidden harmand his actions are accompanied bya blameworthystate of mind. However some crimes do not require a blameworthy mind and an offender commits a crime once he has committed the prohibited act. This is known as strict liability offences. One such example is speeding or illegal parking. Therefore, in order to establish criminal liability, two ingredients must be present: i. Actus Reus ii. Mens Rea 7. 3. 1 Actus Reus.

Actus Reus is a Latin word, means “guilty act” and it is the physical element of committing a crime, such as killing someone or firing a gun. However sometimes an omission to act may also constitute an actus reus, for example a parent fails to give food to a young child. There is no crime based solely on having ‘bad’ thoughts. Thus A, who is thinking of ravishing a girl, has not committed the offence of rape. Although there is mens rea, there is no actus reus. Criminal law does not punish a person with only ‘bad’ thoughts or intention. An actus reus may be nullified by an absence of causation.

For example, a crime involves harm to a person, the person’s action must be the ‘but for’ cause and ‘proximate’ cause of the harm. In short, the victim’s suffering must have been caused by the offender’s action. Thus the prosecution not only has to prove that the consequence occurred but also that the accused’s conduct was a cause of the consequence. For the purpose of criminal law all that has to be proved is that the accused’s conduct was one of the ‘substantial and operative causes of the consequence (R v Smith [1959] 2 QB 35). It does not have to be the only cause.

In R v A (2000) 2 All ER 177, the accused was charged with abduction under the Child Abduction Act 1994. He argued that although the 15-year-old girl had gone with him to London, he had not induced her to go with him as she had gone willingly and to some extent at her insistence because she was unhappyat home. This argument was rejected by the court and held that it was only necessary to prove that the accused was a cause i. e. one cause, possibly among others. In AG Ref (No 4 of 1980) [1981] 1 WLR 705 CA, the accused slapped the victim causing her to fall a flight of stairs and hit her head.

The accused then dragged her upstairs with a rope around her neck. He then put her in a bathtub, drained her blood, cut her into pieces and disposed of them. It was impossible to determine which act caused her death. The court held that where it is not possible to prove which act caused the death of a victim, the accused may be convicted of murder if the prosecution proves that he had mens rea in each act. Elements of actus reus Actus reus may be divided into 3 components (a) Acts – This is a conscious voluntary movement of muscles, e. g. a physical assault. In Hill v Baxter.

[1958] QBD the court held that if defendant (D) is stung by a swarm of bees while driving causing him to lose control of the car, his act would be involuntary and he would not be ‘driving’ at that moment. Since there is no actus reus, there is no criminal liability. Silence – Normally inaction or silence does not give rise to an offence unless the offence can be committed by omission. Thus words or even silence on the telephone can give rise to an offence of psychic assault. ________________________________________________________________________________________________ IR. LAI SZE CHING © 2012 71(200)

Omissions – The general rule is that there is no criminal liability for omissions, i. e. for not doing an act, unless a statute or common law provides that it ia an offence for omitting to act. However there are several exceptions to the above general rule such as one has a dutyto act under common law or statutes. In this case the common law or the statutes impose a duty to act and failure to do so will attract criminal liability. In R v Miller (1982) UKHL 6, the defendant fell asleep whilst smoking a cigarette. He woke up later and found the mattress burning. However he did not put out the fire but moved to another room.

The house caught fire and he was held to be liable for arson. (b) Consequences and causation – this refers to the proscribed result flowing from an act, for example the actual bodily harm. The prosecution must prove that D’s act or omission caused the prohibited consequence. For example, in murder the prosecution must prove that the accused, by his act or omission, caused the death of the victim. In order to establish factual causation of the prohibited consequence (for example, death in the case of murder), the accused’s act or omission must be a sine qua non of the death of the death of the victim.

It means that the victim’s death would not have occurred but for the accused’s act or omission. This is also referred to as the ‘but for’ test. Thus the first step is to ask the question: “Would the victim’s death have occurred but for the accused’s act? ” If the answer is “no, the death would have occurred but for the accused’s act”, then factual causation is established. In R v White [1910] 2 KB 124 the defendant put some poison in his mother's milk with the intention of killing her. The mother took a few sips and went to sleep and never woke up. Medical reports revealed that she

died from a heart attack and not the poison. The defendant was not liable for her murder as his act of poisoning the milk was not the cause of death. However he was convicted of attempted murder. (c) Surrounding circumstances – although most offences require voluntary conduct, some offences donot require any willed act by D. These offences only have surrounding circumstances as the actus reusof the offence. This means that no positive act by D or no consequence is required. These are ‘state of affairs’ offences such as ‘being in possession of drug’. ‘State of affair’ offences are also offences of ‘strict liability’.

The prosecution need not prove any action by the accused or any mens rea. In R v Larsonneur (1933) 24 Cr App R 74, the defendant, a French woman, was deported against her will, from Ireland to England, by the Irish authorities. Upon her arrival she was immediately charged with the offence of 'being found' in United Kingdom and being an illegal alien. Her conviction was upheld despite the fact that she had not voluntarily come to England but was forcibly brought back against her will. Thin Skull Rule This rule is also known as “eggshell skull rule”. This maxim requires the defendant to ‘take his victim as he finds him’.

The term implies that if the victim has a skull as delicate as the shell of an egg, and the defendant who was unaware of the condition injured the victim’s head, causing the skull unexpectedly to break, the defendant would be held liable for all damages and consequences arising from his act. This is so even if the defendant never foresees such a severe injury and also he never intended to cause such injury. In R v Blaue (1975) 1 WLR 425, a Jehovah’s Witness refused a blood transfusion having been stabled in the lung. As a result of this refusal she died the next day. The court held that the defendant is guilty of manslaughter.

notwithstanding that the victim died because of loss of blood. ________________________________________________________________________________________________ IR. LAI SZE CHING © 2012 72(200) 7. 3. 2 Mens Rea Mens rea, in Latin, means “guilty mind” i. e. a blameworthy state of mind. A guilty mind means an intention to commit some wrongful act, for example intending to kill when firing the gun. It does not mean wickedness in any moral or general sense. It refers to a number of states of mind (mental elements) which the law defines as criminal. Each state of mind has a relationship, i. e.

they are linked, to an ingredient of actus reus. Only together they give rise to criminal liability. The state of mind which can be regarded as part of the mens rea are usually denoted by the words such as intention, recklessness, malicious, willfulness, negligence and knowledge. Intention In many of the most serious offences the mens rea required is that of intention to cause the proscribed consequence However, ‘intention’ under the law must be differentiated from a person’s ‘motive’. Intention is ‘deliberate’ action or ‘deliberately’ brings about a proscribed consequence. Motive is the reason for doing something.

For example, if Mr. Robin Hood robs from rich Mr. Nottingham because his motive is to give the money to poor people, his ‘good motives’ do not change his criminal intention to commit robbery. Recklessness Recklessnessis unreasonable risk-taking or unjustifiable risk-taking which is not permitted by law. Some risks may be lawfully undertaken whilst some are not. Whether the risk-taking is justifiable depends on the social utility of the act. For example, the operation of public transport is inevitably accompanied by risks of accident beyond the control of the operator, yet it is socially necessary that these risks be taken.

Dangerous surgical operations must be carried out in theinterest of the life and health ofthe patient, yet the taking of these risks is socially justifiable. In determining where the risk-taking is justifiable, the court would balance the social utility or value of his acts objectively against the risk he took. Thus if a surgeon performs a risky operation to save a life of a person, it is unlikely the court would find that he acted recklessly. However, if a bank robber fires his gun at a wall and the bullet ricochets from the wall and injures a customer, the court would most likely find that the bank robber acted recklessly. 7 7. .4 4.

B Bu ur rd de en n o of f P Pr ro oo of f a an nd d S St ta an nd da ar rd d o of f P Pr ro oo of f It is a fundamental principle of English criminal law that a person is presumed innocent until proven guilty. This is sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat. The United Nations incorporated this doctrine in its Declaration of Human Rights in 1948 under Article 11, Section 1. The maxim also found a place in the European Convention for the Protection of Human Rights in 1953 [as Article 6, Section 2] and was incorporated into the United Nations International Covenant on Civil and Political Rights [as Article 14, Section 2].

It is a legal right of an accused for this principle to be applied in a criminal trial. The burden of proving that a person is guilty of a criminal offence lies on the prosecution. The prosecution has to collect and submit to the court sufficient compelling evidence to convince the trier of fact, whether judge or jury, who is required by law to consider only actual evidence that is legally admissible, that the accused is guilty of the offence. ________________________________________________________________________________________________ IR. LAI SZE CHING © 2012 73(200)

As for the standard of proof, the prosecution has to prove that the accused is guilty beyond reasonable doubt. It is not beyond a shadow of doubt, nor beyond any doubt, nor beyond all doubts, nor 100% guilty. If there is a reasonable doubt about his guilt, the accused shall be acquitted. The above two rules were clearly laid down by the House of Lords in Woolmington v DPP (1935) AC 462. In this case the accused was charged with murder with his wife and his defence was that he had wanted to commit suicide but the gun had gone off accidently killing his wife. The trial judge ruled that the case was so strong against.

Woolmington that the onus was on him to show that the shooting was accidental. At trial the jury deliberated for an hour and 25 minute and eventually the accused was convicted and sentenced to death. Upon his appeal, the House of Lords held that the direction to the jury was wrong and the accused is presumed innocent until proven guilty. It was for the prosecution to prove his guilt and not for the accused to disprove it. The appeal was allowed and Woolmington was released three days before his scheduled execution date. In making the ruling, Viscount Sankey LC made his famous "Golden thread" speech:

“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. ” Therefore the burden of proof lies on the prosecution who has to prove beyond reasonable doubt: i. the elements (i. e. actus reus and mens rea) of the crime; and ii. to disprove or rebut any defences raised by the defendant. 7 7. .5 5 T Ty yp pe es s o of f C Cr ri im me e.

Crimes can be classified into three types: i. Offences against a person This type of crime includes offences directed against the safety, privacy and health of people. These crimes infringe a person’s most basic right of personal safety. Such crime normally results in the most severe penalty under the law. The main offences under this category are: ? Murder ? Assault ? Rape ? Causing bodily harm ________________________________________________________________________________________________ IR. LAI SZE CHING © 2012 74(200) ii. Offences against property These offences are committed against property owned by the victim.

The main offences are: ? Robbery ? Theft ? Burglary ? Criminal damage iii. Offences against public order These offences when committed will threaten and disturb the public order and the peaceful life of public. Such offences include: ? Traffic offences ? Immoral offences (e. g. prostitution) ? Drug offences 7 7. .6 6 D De ef fe en nc ce es s i in n C Cr ri im mi in na al l L La aw w Even if an offence was committed, there are a variety of conditions that will negate elements of a criminal liability, known as ‘defences’.

Generally, the burden to prove that the defendant commits a crime lies on the prosecution and the accused may raise the defence to negate the accusation. Main defences that are commonly used are shown below. 7. 6. 1 Insanity Where a defendant has acted with ‘mental incompetence’, he can raise a defence of insanity. But he cannot raise the defence that his mind was elsewhere or that his mind was not working in top gear. In R v Isitt (1978) 67 Cr. App. R. 44, CA D was involved in an accident whilst drunk. He then sped away with the police in pursuit. D claimed that he knew he was trying to get away from the scene of the accident but he was totally unaware of speeding and moral obligations.

He raised psychiatric evidence claiming that the original accident had caused 'an hysterical fugue' leading to memory loss: his subconscious mind had taken over so that he did not appreciate what he was doing when he was driving. The court held that he was guilty of dangerous driving although his mind was shut to any moral obligations presumably due to alcohol. This is a complete defence to all crimes. If the accused person is successful in proving insanity, then he will be released as not guilty, notwithstanding that he did actually carry out the actus reus. However, he will be sent to a mental hospital for treatment.

The defence of insanity originates from common law in the case of M'Naghten 1843 10 C & F 200. The court in that case formulated the famous The M’Naghten Rule which stipulates that every man is presumed to be sane, and possesses a sufficient degree of reason to be responsible for his crimes, until the contrary is proved. To establish a defense of insanity, “it must be clearly proved that, at the time of the committing of the act, the party was labouring under a defect of reason, from the disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was

wrong. ” ________________________________________________________________________________________________ IR. LAI SZE CHING © 2012 75(200) Situations where one is able to claim the defence of insanity due to disease of mind are: (1) Hyperglycaemia (high blood sugar level) : R v Hennessy (1989) 1 WLR 287 (2) Sleepwalking : R v Burgess (1991) 2 WLR 1206 – D attacked his girlfriend whilst sleepwalking (3) Epilepsy : R v Sullivan (1984) AC 156 – D injured a person during an epileptic seizure (4) Arteriosclerosis : R v Kemp (1957) 1 QB 399 – D attacked wife with hammer 7. 6. 2 Automatism

In order to attract criminal liability a defendant’s conduct must be voluntary, that is, it must be a willed bodily movement or lack of action where he is under a duty to act. Lord Denning in Bratty v AG for Northern Ireland (1961) 3 All ER 523 HL held “No act is punishable if it is done involuntarily: and an act in this context…means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking…”

Automatism is a situation where the muscles act without any control by the mind; or with a lack of consciousness, i. e. that one’s bodily movements were unwilled and involuntary. One may suddenly fall ill, into a dream like state as a result of post traumatic stress and go into automatic spell. Some examples of such automatism are uncontrolled reflexes, sleepwalking and hypoglycemia (low blood sugar). Automatism is a complete defence for all offences as the defendant is deemed not to be in any way to be blamed for what happened.

In R v T (1990) Crim LR 256 T took part in a robbery and was charged with robbery and causing ABH. She raised the defence of automatism since at the time of the offence she was in a dissociative state, suffering from Post Traumatic Stress Disorder caused by the trauma of rape. The court held that the rape constituted an external factor and therefore the non-insane automatism was open to the jury despite the fact that Post Traumatic Stress Disorder is generally perceived as being a condition of the mind. However if the automatism is self-induced (for example by taking drink or drugs voluntarily) then it is not a defence to the offence committed.

7. 6. 3 Intoxication Intoxication refers to situation where the accused committed an offence while he was intoxicated by drugs or alcohols. In some cases, intoxication will provide a defence because it would mean that the accused did not have the necessary mens rea for the crime. There are two types of intoxication: involuntary intoxication and voluntary intoxication. Involuntary intoxication arises where the accused did not know he was taking an intoxication substance, for example, where a soft drink has been laced with alcohol. The person who laces the drink will be the principal offender acting through an innocent agent.

Thus the intoxication is not voluntary and was caused by malicious or negligent act of another person. ________________________________________________________________________________________________ IR. LAI SZE CHING © 2012 76(200) Voluntary intoxication occurs where the accused intentionallyconsume substance that he knew will cause intoxication, for example, taking heroin intentionally. In AG for Northern Ireland v Gallagher (1961) UKHL 2 D intended to kill his wife and bought a knife and a bottle of whisky. He drank the whisky and then killed her. The House of Lord (Lord Denning) held:

“If a man, whilst sane and sober, forms an intention to kill and makes preparation for it, knowing it is a wrong thing to do, and then gets himself drunk so as to give himself Dutch courage to do the killing, and whilst drunk carries out his intention, he cannot rely on this self-induced drunkenness as a defence to a charge of murder, nor even as reducing it to manslaughter. ” 7. 6. 4 Necessity The defence of necessity arises when an accused deliberately commits an offence but alleges that it was necessary for him to do. This occurs in situations where the defendant commits an offence to avoid greater

evil of death or serious injury to himself or another or to prevent further damage to property. For example, pulling down a person’s building is criminal damage but if the building is on fire and is threatening the other buildings next to it, then the damage may be justified. Similarly trespassing is an offence, but if the accused trespasses a property in order to put out a fire, then he is not guilty of trespassing. Generally, a criminal act can be justified if it is necessary to prevent a foreseeable and greater harm than the harm created by the act.

However traditionally courts have been reluctant to allow extension of the defence of necessity as it would open the floodgates. The defence of necessity was pleaded in the controversial case of R v Dudley & Stephens (1884) 14 QBD 273 where the court held that necessity was not a defence to murder of an innocent victim. In Southwark London Borough Council v Williams (1971) 2 AER 175 the court held that for a charge of theft of food or clothing, the defence of necessity will not be permitted. Lord Denning said: “…if hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass. ” 7. 6.

5 Mistake of Fact Sometimes a mistake of fact, if it is genuine, is a defence to some offences. For instance, if John picks up a bag which he mistakenly thought was his, he is not guilty of theft as he does not have the mens rea to appropriate the bag dishonestly. If an offence requires knowledge of surrounding circumstances then an honest mistake can negative such knowledge. It does not matter whether the mistake is reasonable or not. If the mistake is unreasonable it is likely that the judge will find that there is no honest mistake. In DPP v Morgan (1976).

AC 182, a man told three friends to have sex with his wife and that she will pretend to refuse just to be stimulating. The House of Lords held that the accused would not be convicted of rape if he honestly although unreasonably believed that the woman was consenting to it. ________________________________________________________________________________________________ IR. LAI SZE CHING © 2012 77(200) 7. 6. 6 Self-Defence Common law allows a person to use reasonable force to protect himself, his property or another person.

Self-defence is some reasonable force taken in order to protect oneself or one’s family. Generally, an offence committed in self-defence will be negated by this defence and no punishment will be imposed. However, the force used must be proportionate to the threat and not excessive. What amounts to reasonable force depends on the facts and circumstances of each case. An example of disproportionate use of force for self-defence is the use of a firearm in response to a non-lethal threat. The case of PP v Dato’ Balwant Singh (2002) 4 MLJ 427 is a typical example of self-defence. In AG Reference No 2 of 1983 (1984) QB 456 D’s shop was in the centre of which extreme riots were taking place. His shop has been damaged and goods stolen.

He was in fear that he and his property might be the subject of further attack and made 10 petrol bombs to protect himself. He was charged with possessing explosives without lawful object. The Court of Appeal held that the use of the petrol bombs was reasonable force in self-defence against an apprehended attack. 7. 6. 7 Duress A per