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Defence for Eddies death liability

First defence that would be profoundly used in this case is exceeding private defence.

Exceeding private defence is being elaborated as1

........traditionally recognised as a justification because society regards theconduct of the defender as preferable to the conduct of his or her aggressor

In this case, Carol is attempting to use the weapon (which is a revolver) to threatenEddie in good faith to escape. It is a pure intention to escape from the danger andnot any ill intention to cause any harm or death to Eddie when she said Letme goas she pointed the gun at Eddie.

In Section 97(a) of the Penal Code2, it is considered as permissible to an action ofkilling only when it was necessary to repulse the victim of one of the threatsmentioned in Section 100. To the context of this case, it is most appropriate to bring

out Section 100 (a) and (f), where section 100(a) stated if the assault of the victimagainst the accused that the accused apprehend that death might be occurring tohim/her, she could resort to this defence and section100 (f) stated that if the victimwrongfully confine this accused causing her have no chance to seek for publicauthority assistance.

In this case, Carol had pleaded Eddie to let her go but Eddie reluctant to do so andcontinues to threaten her and hence it has satisfied section 100 (a). Whereas at thepoint where Eddie persistency in giving her death threat even from the time of therobbery till the time when Eddie physically assaulted after reaching Eddies garagehave led to the self defence to shoot Eddie. The breaking point of the case is whenEddie attempted to hold the barrel of the gun. That would have imminently pose as athreat to her life as she is a defenceless woman that would not win the struggle ofthe fight, she has to pull to the trigger as she sensed the threat to her life as Eddie isabout to get hold of the weapon. This is supported by comment by the Nigerianjudge in the case of Josiah Pnyemaizu3:-

......self-defence is only available if there is a reasonable apprehension ofdeath or grievous harm .....Claims to have exercised that right had reasonableground to believe that the only way to protect him from death....

Another case could be supporting this case is PP v Morzuku Salleh4

where in thecase the accused was held that the grave situation the accused was facing when thevictim tried to slashed the accused with parang and in the act of self defence hestabbed the victim once. The court held that the danger was real and imminent thathe has to act to save his own life. As for the situation as Eddie attempted to wrestlethe revolver, it would have contributed to the imminent danger to any reasonable

1See generally, N Omichinski, Applying the Theories of Justifiable Homicide to Conflicts in

the Doctrine of Self-Defense33 WAYNE LAW REVIEW 1447 (1997); S. Kadish, Respect for Lifeand Regard for Rights in the Criminal Law64 CALIFORNIA LAW REVIEW 871 (1976); S. YEO,COMPULSION IN THE CRIMINAL LAW (Law Book Company, 1990), Chapter 1.2

Act 5743[1958] AIR NLR 93

4[2004] 5 CLJ 127

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defenceless woman to protect herself as she knew the real danger of being killed orharmed as the weapon fall into the hand of the aggressor.

Another support to this provision is provided by5 Mehrota KC cited in approval of thecase PP v Yeo Kim Bok6 that the accused is allowed to exercise the private defence

(a) A defender need not wait till he is actually attacked and (d) if the defender isunable to escape, he may turn around to attack.

Second defence that could be brought up by Carol is insanity. The light that shinesthe meaning of insanity could be found in the case of MNaghten7:-

............to establish a defence on the ground of insanity, it must be clearlyproved that, as at the time of the committing of the act, the party accused waslabouring under such a defect of reason, from disease of the mind, as not toknow the nature and quality of the act he was doing....

In this case, as the defence counsel, I would submit that Carol is suffering frommental disorder due to the prolonged use of recreational drugs. The effect of thedrugs onto the normal functions of the brain could be found the medical researchpaper published by the Drug Free Australia in 20098. It is medically proven that therecreational drugs not only will have a short term effect of intoxication but a long termeffect of brain dysfunction including inability to decision and reality.

Hence, with the support of the above evidence, I would bring up the provision in thePenal Code, section 84 which contains that the reason of unsoundness of mind isincapable of knowing the nature of the act, or that he is doing what is either wrong orcontrary to the law. Hence, I would contended that the act of my client is purely dueto insanity and do not have the knowledge of the act. The drugs have impaired thecognitive faculties as opposed to the emotional capacity9. This will imply that sheshould not be found guilty at the absence of the capacity to reason.

The other evidence that I would bring forward is the action of my client in shootingthe gun at the victim ceaselessly till the running out of the ammunition which wouldrender the actions beyond the normal actions that would be done by normalreasonable man. Mental disorder could also be proven and recognised by thequalified medical personnel as a sign of abnormality. Hence, I would submit that theactions above does not render the mere contention by the prosecuting officer of

intention but is a significant evidence of unsound mind. Thus, hereby I contendedthat my client would have fulfilled the two requirements of mental disease due tothe prolonged use of drugs to the brain functions and not knowing the illegalitywhere the mental disease has rendered my client unable to differentiate the wrongand right of the action.

5Culpable Homicide and Legal Defence [1967]

6[1971] 1 MLJ 206

7[1843] 10 Cl & F 200

8

Heather Ashton DM, FRCP et all, Cannabis suicide ,schizophrenia and other ill-effect, Drug Free Australia Ltd(2009, Australia)9

Peiris, General Principle of Criminal Labiality in Ceylon, A Comparative Analysis [1972] at page 136

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References

Cases

Josiah Pnyemaizu [1958] AIR NLR 93

PP v Morzuku Salleh[2004] 5 CLJ 127

PP v Yeo Kim Bok[1971] 1 MLJ 206MNaghten[1843] 10 Cl & F 200

Textbooks1. Lee Chong Fook and Che Audah Hassan , Offences Against Person And

Property , (Reed Elsevier 2008,Singapore).2. Y.Stanley, N.Morgan and W.C Chan, Criminal Law in Malaysia And

Singapore ( my book not completed printed u find out)

3. Molly Cheang , Criminal Law of Malaysia and Singapore: Principle ofLiability

4. David Ormerod, Smith and Hogan Criminal Law Oxford University Publisher(12th ed 2008, Oxford )

5. Jonathan Herring,Criminal Law : Text, Cases and Materials,OxfordUniversity Publisher (3rd ed 2008,Oxford)

6. Michael Allen, Textbook on Criminal Law Oxford University Publisher(9th ed2008, Oxford)

Article

1. Stanley Yeo,Bringing Clarity To Private Defence: The SingaporeExperience (NUJS law review) March 2010