ELEMENTS OF CRIME

ELEMENTS OF CRIMELAW 2310SECTION 2SEM 2,2014/2015

Definition of LawAccording to Oxford English Dictionary, law is defined as the body enacted or customary rules recognized by a community as binding.

Sir John Salmond in his book, Jurisprudence, defined law as the body of principles recognized and applied by the state in the administration of justice. In other words, law consists of the rules recognized and acted on by courts of justice. In short, law may be defined as a body of rules which are enforced by the state.

John Austin in his book The Province of Jurisprudence Determined describes law as a command set by superior being to an inferior being and enforced by sanctions (punishment). The superior being is the state and inferior being is the individuals. The sanctions are wide and include imprisonments, fines, damages, injunctions and decrees of specific performance.

According to Blackstone, law is a rule of action prescribed or dictated by a superior which an inferior is bound to obey.Public LawPublic Law is basically the law which governs the relationship between the individuals and the state. Public law may be further divided into two categories, namely constitutional law and criminal law. Constitutional law lays down the rights of individuals in the state. It deals with questions such as supremacy of Parliament and the rights of citizens.Private Law (Civil Law)Private Law is concerned with the matters that affect the rights and duties of individuals among themselves. Basically Private Law is also known as Civil Law. It covers areas such as contract, torts and trust. Torts and contract is based on the obligations imposed by law whereas the law of trust governs relationship between trustees and beneficiaries.

Criminal LawCriminal Law is a law codifies the various offences committed by individuals against the state. It aims at punishing criminals and suppressing crime. Thus, Criminal Law imposes on individuals the obligation not to commit crimes. A crime is wrong against the state for which punishment is inflicted by the state, the proceedings being brought by the Public Prosecutor. The essential elements of crime are actus reus (wrongful act) and mens rea (guilty mind).

CrimeLiterally, crime is an offence, wrongful act that is punishable by law. While in technical sense, crime is a prohibited act done with a guilty mind. In short, crime is defined as an act of disobedience of the law forbidden under pain of punishment. The punishments for crimes range from death or imprisonment to a money penalty (fine) or absolute discharge.

According to Blackstone, a crime is a violation of public rights and duties due to the whole community.

Both Cross and Jones claimed that whether an act is a crime or not is really a political decision. It is up to the State to regard it as a tort or a crime. In order to constitute a crime, both the actus reus and the mens rea must be present.

The Differences between Criminal Law & Civil Law Criminal lawCivil lawOffences are against the states.

Proceedings are initiated by the states (Public Prosecutor).

Proceedings cannot be withdrawn, i.e. cannot be settled outside the court except with the approval of Attorney General by virtue of Article 145 of the Federal Constitution.

Wrongs are between individuals.

Proceedings are initiated by individuals.

Proceedings may be discontinued and can be settled outside the court.

Criminal lawCivil lawBurden of proof lies on the PP and generally does not shift to the accused.

The burden of proof is beyond reasonable doubt.

Legal consequences under criminal law are more severe than that under the civil law, for example death sentence; life imprisonment; whipping and fine.

Burden of proof lies on the plaintiff and it may shift to the defendant.

The burden of proof is on the balance of probabilities.

Legal consequences under civil law are less severe than that under the criminal law, for example monetary compensation; injunction; specific performance; self help.

Criminal lawCivil lawIn term of terminology used:- Prosecute.- v. reads as against.- Citation: PP v. Accused

If PP succeed, the accused will be convicted and the word guilty is used.

In term of terminology used:- Sue.- v. reads as and.- Citation: Plaintiff v. Defendant

The result is judgment for the plaintiff or defendant and the word liable is used.

MaximThe principle that a man is not criminally liable for his conduct unless the prescribed state of mind is also present is frequently stated in the form of a Latin maxim, actus non facit reum nisi mens sit rea (an act does not make a person legally guilty unless his mind is legally blameworthy).From this, it can be deduced that as a general rule criminal liability is only imposed if there is a coincidence of two ingredients, namely:-

a) Actus Reus (guilty act): the conduct or action of the accused which produces or constitutes the forbidden harm, for instance, firing the gun and killing the victim; and

b) Mens Rea (guilty mind): a blameworthy state of mind, for instance, intending to kill when firing the gun.

Both elements derive from the above maxim that shows mere act is not enough; it must be done with criminal intention. If there is only an act per se without criminal intention, the act is not a crime. In this case, that person can only be charged but cannot be convicted.According to Turner, actus reus may be defined as a result of human conduct which the law seeks to prevent.

And according to Glanville William, actus reus means the whole definition of the crimes with the exception of the mental element.

Actus reus generally, is conduct and sometimes it is consequence and also of the circumstance in which the conduct took place in so far as they are relevant. Actus reus in other word can be defined as the conduct or action of the accused which produces or constitutes the forbidden harm, and it is not merely an act but consist of a state of affairs.

Types of Actus ReusConduct crimeResult crimeConduct crime consists of action, which is prohibited by law or in other words the accused has done something that law prohibits. The criminal liability is imposed simply to the accused because this action need not for result, for example, in murder it must be shown that the accused conduct caused the death.

The law is interested only in the result and not in the conduct which bringing the result. Result crime also means that, the conduct of the accused to cause a prohibited result, for example, under Section 41 of the Road Transport Act 1987, it is an offence for a person to drive a motor vehicle on a road in a reckless or dangerous manner and thereby causes the death of a person.

Whole Actus Reus Must be ProvedThere can be no crime unless whole of the actus reus is proved. For an act to be an offence, the act must be complete. In other words, both elements of criminal liability must be proved in toto. In Rex v. White, the defendant put potassium cyanide in his mothers drink, intending to kill her. Shortly afterwards, the mother was found dead with the glass, partly full beside her. Medical evidence confirmed that death was due to a heart attack and not poisoning, the amount of potassium cyanide administered was insufficient to cause her death. The defendant was only convicted of attempted murder, because although death occurred, it was not caused by his conduct and thus an element of the actus reus of murder was missing.

Conduct or ActThere is no comprehensive definition is provided in the Penal Code regarding conduct or act. The only relevance sections here are section 32, 33 and 34. However, in section 2 of the Penal Code, it has mentioned about act or omission.Section 2: Punishment of offences committed within Malaysia.Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within Malaysia.

Section 32: Words referring to acts include illegal omissions.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.

According to this section, illegal act is something that is not acceptable by the Parliament (the ultimate power), whereas omission means inaction and considered as legal omission when the person is legally bound to omit. The examples are:-

A person does not help someone who is drowning in a swimming pool. This is a case of legal omission because he is not bound to help that person.

A father failed to perform his duty to feed his kids. This is an illegal omission because it is his duty to take care of his children.

Section 33: Act and omission.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 single omission.

Section 43: Illegal, unlawful and legally bound to do.The words illegal or unlawful is applicable to everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action.And in respect of the word illegal, a person is said to be legally bound to do whatever it is illegal in him to omit.

Therefore, the conduct is either voluntary or involuntarily conduct. Voluntary conduct is an act, which is done intentionally. Whilst, involuntarily conduct refers to conduct which is done without the free will of the wrongdoer. This conduct caused by uncontrollable reflex action or by a physical collapse brought on by injury or illness.

Conduct Must be VoluntaryIn R v. Kemp the accused was suffering from hardening of the arteries which might have led to a congestion of blood in the brain. He had struck his wife violently with a hammer and it was pleaded that he was not conscious of this act because of the state condition. The jury accordingly found the accused guilty but insane.

The Penal Code does contain a definition of voluntarily in section 39.

It was assumed that if an accused acted in an involuntary manner during an epileptic fit, the only possible defence available to him would be that of insanity under section 84 of the Penal Code.

In Sinnasamy v. PP, Good J. stated that this is an appeal against the conviction of the appellant for murder of his daughter aged 21 monthsThe defence was that the appellant did the act when in a state of automatism, which is temporarily loss of consciousness associated with some types of epilepsyThe learned judge, in his summing up, was right in rejecting the defence of automatism in favour of the theory that the appellant acted on an irresistible impulseIrresistible impulse per se is no defence, and can only be a defence when it is proved to have been the result of insanity in law. The onus of proving this lay on the appellant and, in our view, he did not succeed in discharging itfor the reasons that we have given, the appeal is dismissed.

In Re Pappathi Ammal, the accused, who had recently given birth to a child, jumped into a well with the child at night. An alarm was raised and the accused rescued but the child drowned. The accused was charged with murder and attempted suicide. In her defence, she pleaded that she was a sleepwalker and that during such sleepwalking she must have walked into the well with her child. It was ruled that such an allegation of somnambulism had not been substantiated.

In the recent case of PP v. Muhamad Suhaimi bin Abd Aziz, the accused, a Petronas executive was charged with the murder of his wife under section 302 of the Penal Code. The defence advanced was one of unsoundness of mind at the time of the commission of the crime. The psychiatrist (DW2) who examine and observed the accused after his arrest found that he was suffering from a type of psychotic illness, namely, delusional disorder jealous type. DW2 concluded that at the time of the incident, the accused was of unsound mind and did not know that what he did was wrong in law.

At the end of the trial, Augustine Paul J. acquitting the accused and observed that the question of whether a defence of insanity had been made out or not was a matter for the court to decide. The medical evidence on the mental state of the accused at the time of the incident was not seriously challenged. Neither was any evidence in rebuttal led by the prosecution to challenge the evidence of DW2. Where medical evidence was unchallenged and there was no evidence to the contrary, a verdict of murder could not stand.

OmissionOmission generally does not give rise to criminal liability. Nevertheless, if the omission is illegal omission, criminal liability will arise. Therefore, if it is just an omission to moral duty, then there is no criminal liability. The most common example of this omission is as illustrated in the Stephens Digest of the Criminal Law, which stated that a passerby could not be liable for a crime if he saw a child drowning in a shallow pool and he however done nothing although he could easily save the child without any risk incurred.

According to section 32 of the Penal Code, an act extends also to illegal omissions. In most cases, it only requires to prove that the defendant had only carry out some positive act before criminal liability can be imposed upon him. Normally, failure to act forms no liability unless the act is a duty. For example, a motorist who fails to provide a police officer with a specimen of breath when properly required to do so will commit an offence. It is also showed that a person who is responsible to take care and maintain his/her children but fail to do so, that is, failure to provide him adequate food, clothing, medical aid or lodging is also fall under this offences of pure omission.

Failure to ActA)Resulting from Special Relationship

This is illustrated in the case of Walter Gibbins & Edith Rose Proctor. These were appeal against conviction on matters of law. Appellants were convicted, on the 18/03/1918, of murder, and were sentenced to death. The appellants were convicted of the murder of Gibbinss daughter, Nelly, a girl of 7, it is being alleged that she died of starvation as the result of a long course of cruelty and neglect at the hands of both appellants. Gibbins earned good wage, which he brought home and gave to Proctor to maintain the house and those in it. There is no evidence that there was not enough to keep them all in health. And all were looked after except one, namely Nelly, who was starved to death. Her organs were healthy, and there was no reason why she should have died if she had been supplied with food. She was kept upstairs apart from the others, and there was evidence that Proctor hated her and cursed her.

Darling J. stated that if you think that one or other of those appellants wilfully and intentionally withheld food from that child so as to cause her to weaken and to cause her grievous bodily injury, as the result of which she died, it is not necessary for you to find that she intended or he intended to kill the child then and there. It is enough if you find that he or she intended to set up such a set of facts by withholding food or anything as would in the ordinary course of nature lead gradually but surely to her death.

B)Creating Dangerous Situation

In the case of R v. Miller, one night while squatting in someone elses house, the appellant lit a cigarette, and then lay down on a mattress in one of the rooms. He fell asleep before he had finished smoking the cigarette and it dropped onto the mattress. Later he woke up later and saw that the mattress was smouldering. He did nothing about it; he merely moved to another room and went to sleep again. The house caught fire. The appellant was rescued and subsequently charged with arson. Lord Diplock in the House of Lords observed that once the appellant had discovered the mattress was smouldering, the appellant had been under a duty to act. The appellant was convicted and his conviction on the ground that his course of conduct constituted a continuous actus reus.

C)Duty Assumed by Contract

In Rex v. Pittwood, the accused was a railway gatekeeper who was employed to keep the gate shut whenever a train was passing during the period 7 am to 7 pm. Not many trains used to pass during this day period. One day, the accused left the gate open with the result that a train hit a hay cart crossing the line killing one man and injuring another seriously. The accused was charged with manslaughter. The accused was found guilty and sentenced to three weeks imprisonment.

D)Duty Voluntarily Assumed

In R v. Instan, the accused lived with her 73 years-old aunt. The aunt who had been healthy until shortly before her death developed gangrene in her leg. During the last twelve days of her life, she could not fend for herself, move about or summon help. Only the accused knew of her state and gave her aunt no food and did not seek medical assistance. The accused was charged with manslaughter and convicted.

Mens ReaThe required mens rea varies from one crime to another. According to Lord Morris in Sweet v. Parsley Mens rea is an essential ingredient of an offence. The requirement to prove mens rea depends on whether the statute has clearly or by necessary implication rules out that mens rea as a constituent part of guilt.

Generally, a person cannot be held liable for his acts, which is done without any intention or guilty mind. It is unfair to punish a person who negligently done that act because it is happened without his intention. However, if a person has the intention to kill his wife, put poison in her foods, he is liable for his act, even though his wife is still alive because he had the mala fide regardless what ever would be the result (that is, an offence for attempted murder). In the criminal law, this intention is known as mens rea. Generally, mens rea signifies guilty mind. In the dictionary, it is defined as an evil intention or knowledge of the wrongfulness of an act. Mens rea is an important element that must be proved in order to convict an accused for the offence he/she had been committed, namely the mental element or degree of fault that the accused had at that relevant time. However, mens rea is not limited to such states of mind. It also covers those acts, which are done with the knowledge that there is a chance for the conducts to cause a prohibited result.Mens Rea under the Penal CodeThere are several provisions under Penal Code, which make mens rea as a requirement, for example:-Section 142: Intentionally joins unlawful assembly.Section 275: Sale of drugs which known to be adulterated.Section 304A: Causes the death of any person by doing any rash, or negligence act.Section 378: Intending to take dishonestly any movable property.

Specific terms of Mens ReaA) IntentionConcept of intention is nowhere defined in the Penal Code. Usually intention is used in relation to consequences. A person clearly intends a consequence if he wants that consequence to follow his action. This is whether the consequence is very likely or unlikely to result.

In the case of Nor Hasnizam bin Ab Latif v. PP, the Court of Appeal dismissed the appeal and affirmed the sentence of the High Court and held that on the matter of intention to kill, it was a matter of inference from the nature of the wounds. The bone of contention of the defence was that the injury caused to Yong was accidental. From the nature of the injuries inflicted on Yong, it could be inferred that the appellant must have intended to kill Yong within the meaning of section 300 of the Penal Code.

B) RecklessnessThis concept is unknown to the Penal Code but has been introduced into other local legislation, such as the Road Transport Act 1987, for example:- Section 41: Causing death by reckless or dangerous drivingSection 42: Recklessness and dangerous driving

C) KnowledgeKnowledge and reason to believe are to be clearly distinguished. Belief is somewhat weaker than knowledge but a well-grounded belief that certain consequences will follow a certain act is ordinarily as good as knowledge.In PP v. Kalaiselvan, the accused was charged with trafficking in 807.4g of cannabis. At the end of the prosecutions case, Augustine Paul J. acquitting the accused and discharging him without calling upon him to enter his defence. The learned judge observed that even if the presumption applies, it only goes to show that the dangerous drugs were concealed with the knowledge of the accused. It is trite law that mere knowledge is insufficient to constitute possession of the dangerous drugs.

D) Rashly and negligentlyWhile each of these terms has a separate meaning, the Penal Code generally uses them jointly as in causing death by a rash or negligent act contrary to section 304A of the Penal Code.

In the case of PP v. Mahfar Sairan, the accused was charged with the murder of his wife where he was alleged to have caused her death by driving his car into her on the road in front of their house after he had reversed the car out of the porch. Kang Hwee Gee J. stated that In order to establish an offence under s.304A of the Penal Code that is that the accused caused the death of the deceased by any rash or negligent act, all that was required of the prosecution was to prove that the act of the accused in causing his car to come into contact with the person of the deceased was rash and/or negligent. The test was whether or not a reasonable man in the same circumstances would have been aware of the likelihood of damage or injury to others resulting from such conduct and taken adequate and proper precautions to avoid causing such damage or injury.The accused accordingly was convicted under s.304A of the Penal Code, and sentenced to imprisonment for a period of 6 months with effect from the date of arrest.

E) MalignantlyMalignantly means maliciouslyA thing is done maliciously, if it is done wickedly or in depraved or perverse or malignant spirit, regardless of social duty and deliberately bent on mischief.

The term malicious itself appears in section 219 and 220 of the Penal Code. Being undefined, it is permissible to look at English law to discover its scope and meaning. This word not only to be understood in the sense of wickedly or with ill will but as requiring either actual intention to cause the relevant harm or at least foresight of the risk of causing the particular type of harm.

F) DishonestlyThis concept is defined in section 24 of the Penal Code. In PP v. Wong Kim Fatt, Dato George K.S. Seah FJ stated that To establish dishonesty, it is not necessary that the prosecution should establish an intention to retain permanently the property misappropriated. An intention wrongfully to deprive the owner of the use of the property for a time and to secure the use of the property for ones own benefit for a time may be sufficient. It is not necessary to prove in what precise manner the money or property was misappropriated. The essential thing to be proved is that the accused was actuated by dishonest intention. The failure of the accused to account for the money proved to have been received by him or giving a false account as to its use is generally a strong circumstance against the accused. The mental act of intent to deprive the owner of his property is the gist of the offence.G) FraudulentlyThis type of mens rea is defined in section 25 of the Penal Code.

H) VoluntarilyThis concept is defined in section 39 of the Penal Code.

Proof of Mens ReaThe fact that a consequence is proved to be the natural and probable result of the accuseds actions does not mean that it is proved that he or she intended or foresaw such a result; the magistrate or the judge must decide.

In the case of Kochu Muhmmad Kunju Ismail v. Mohmmad Kadeja Umma, the accused took learned opinion that she had capacity to effectively divorce her husband under personal law applicable to her, and she went through such formalities as required and gave notice to her husband, waited for sometime and then remarried the third accused. The court held that her belief that she was free to marry again would negative criminal intent or knowledge on her part and that was a good ground for acquitting her.

In the celebrated case of Dato Seri Anwar bin Ibrahim v. PP, the appellant, the former Deputy Prime Minister, had been convicted on four amended charges of corrupt practice under s. 2(1) of the Emergency (Essential Powers) Ordinance No. 22 of 1970. He was sentenced to six years imprisonment in respect of each of the four charges and the sentences running concurrently from the date of conviction. He appealed against both conviction and sentence. At the appeal, one of the issues which the counsel for appellant had raised up was that the learned judge failed to address his mind to the question of mens rea.

The Court of Appeal judge in replying to that submission, had cited the case of PP v Dato Haji Mohamed Muslim bin Haji Othman (1983), where Hashim Yeop Sani J said:Now the question of mens rea. I need only say that mens rea is necessary in every criminal offence save those which the legislature thought fit to expressly exclude. But mens rea can be proved in diverse ways. Here mens rea is proved if the accused knew or ought to have known of the conflict between his public duty as member of the Exco and his private interest in the approval of the application.

The learned judge stated that It does not become part of the hearing of an appeal to indulge in an exercise whereby the court must spell out every conceivable circumstance whether criminal intent is present or not. It is true that the learned trial judge may have unwittingly failed to mention the words mens rea but if he has examined every single piece of evidence relevant to the proving of a charge, which he has done in this case, and in fact found it proved, that would not fatal in his view to the prosecution case. In this case, the judges said that they are not convinced with the submission of the appellants counsel on this issue and more satisfied that the prosecution has proved its case. Therefore, the appeal was dismissed.The relationship between Actus reus and Mens reaThe mens rea coincide in point of time with the act which causes the actus reus. Mens rea implies an intention to do a present act, not a future act. According to Holmes, There is no law against a mans intending to commit a murder the day after tomorrow. The law only deals with conduct.If the defendant does an act with intent thereby to cause the actus reus, and does so, it is immaterial that he has repented before the actus reus occurs, so where the defendant dispatched suitcases which she know to contain cannabis from Ghana to London, her repentance before the importation took place was no defence,.

Where the actus reusis part of a larger transaction, it may be sufficient that the defendant has mens rea during the transaction, though not at the moment the actus reus is accomplished.

The general rule is that an offence can be committed only where criminal conduct is accompanied by some element of fault (guilty mind). However, some offences need not to prove the guilty mind such as strict liability offences.

ConclusionThe legal maxim actus non facit reum nisi mens sit rea means that an act cannot constitute an offence unless it is accompanied by a guilty mind. From this maxim, two elements must be fulfill, that is actus reus and mens rea.

Actus reus is the act or conduct or the circumstances of the forbidden act which is prohibited by law. Crime can be divided into two. They are conduct crime and result crime. The conduct must be a voluntary conduct in order to make the accused liable for an offence. An involuntary conduct can be a defence to escape liability.

Meanwhile mens rea means as guilty mind or an evil intention or knowledge of the wrongfulness of an act. A person cannot be held liable for the crime committed without having an intention in his mind before commits that crime and during that commission. The prosecutor must prove this element together with actus reus in order for the accused to be held liable.