Elements of Criminal Liability
Elements of Criminal Liability
Elements of Criminal Liability
Cardinal principle to establish criminal liability: both actus reus and mens rea must be
present.
- Actus reus: Committing a forbidden act or committing that which causes a result
prohibited by law.
- Mens rea: An accompanying blameworthy state of mind
The cardinal principle is reflected in the maxim “actus non facit reum nisi mens sit rea”: An
act does not make a person legally guilty unless his mind is guilty.
Elements
Actus reus:
- Sec. 33: ‘act’ denotes a series of acts as well as a single act
- Act must be voluntary or willed
- Physical movement resulting from an operation of the will
- Where movement is involuntary, conduct is said to not be willed, thus there is no actus
reus. This may result from:
- External causes will exclude accused from liability; defence of accident
(Sec. 80) would be applicable.
- Physical compulsion: being pushed
- Reflex movements: reflexive movements while being attacked
- Concussion
- Unconsciousness: movements while under anaesthetics
- Hypnosis
- Accused’s own fault
- E.g: Accused fails to eat after taking insulin despite being aware of the
risks.
- Only defence of insanity (Sec. 84) is available.
- Disease of mind
- Involuntary acts resulting from mental impairment
- Defence of unsoundness of mind (Sec. 84) is available.
Omission:
- Sec. 32: ‘act’ includes illegal omissions.
- Only illegal omission that attract criminal liability.
- Sec. 33: ‘omission’ denotes a series of omissions as a single omission
- Sec. 43: a person is said to be legally bound to do whatever it is illegal in him to omit.
Thus, sec. 43 would cover omissions of:
- Failing to act when it is an offence
- Omissions which are criminal offences under the Penal Code
- Failing to act when prohibited by law
- A voluntary obligation imposed even though its infringement may not
be an offence
- Failing to act which furnishes ground for civil action
- Where the accused is under a duty to act. Such duty may arise when:
- There is a special relationship: When a person is helpless and
unable to look after himself.
- A duty is voluntarily assumed: There is a duty to act if any
person voluntarily assumes responsibility for another, even
when there is no special relationship.
- A duty is assumed by contract
- A duty arising from the creation of a dangerous situation
- To attach criminal liability, the performance of an act must bring about a conduct or
lead to the cause of an event.
- The law must prohibit the caused conduct or result before attaching criminal
liability to it.
- The resulting liability can be categorised into:
- Conduct crimes: Where criminal liability is imposed because the
accused has done something prohibited by law.
- E.g: Possession of drugs under the Dangerous Drugs Act
- Result crimes: The crime requires the conduct of the accused to cause
a prohibited result.
- E.g: The act of the accused produces a prohibited result that is
death.
- Conduct prohibited by law differs from other conduct not prohibited by law:
- Rules of religion
- E.g: Prohibition on the consumption of alcohol within the religion
- Rules of morality
- E.g: Prohibition on telling lies
- Rules of ethics or organisations
- E.g: Prohibition on advertising of services by medical/legal practitioners
Mens rea:
- It is not enough that a defendant has simply done the forbidden act or caused the
prohibited harm, he must have done in circumstance in which he can properly be
blamed for his conduct.
- There are various forms of mens rea:
- Intention: Inferred from the surrounding circumstances and the acts of the
accused.
- R v Nedrick: When determining intention, it is necessary to ask:
- How probable was the consequence which resulted from the
defendant’s act
- Whether he foresaw that consequence
- Knowledge: A person acts in respect of an element of an offence ‘knowingly’
when he is aware that it exists/is almost certain that it exists/will exist/occur.
- Voluntariness: Sec. 39; the desire to act.
- When he acts/causes it by means where he intended to cause it.
- Rashness: Acting with the consciousness that mischievous and illegal
consequences may follow, but with hope that he has taking enough
precaution.
- Negligence: Acting without the consciousness that the mischievous and illegal
effect will follow and without exercising caution.
- Malice: A wrongful act done intentionally without just cause or excuse.
Criminal Liability
Coincidence of actus reus and mens rea:
- Criminal liability occurs when there is an act causing an effect prohibited by law
coupled with the state of mind at the time of the harmful act.
- It is a requirement that actus reus and mens rea must coincide to create criminal
liability.
- Strict Approach: strictly applies the cardinal principle that actus reus and mens rea
must coincide to attract liability.
- Queen Empress v Khandu Valad Bhavani
The accused struck his father-in-law three blows on the head and sought to
cover his death by placing firewood under his head and setting fire to the hut.
Medical evidence proved that death was really caused by the injuries from the
burning, and that the blows only amounted to an attempt to murder.
Held: The accused’s intention did not coincide with the act of setting fire to
the hut, thus he was not charged with murder.
- However, there are exceptions to the requirement that actus reus and mens rea must
coincide:
- Extended Act: treats the actus reus as one continuous transaction until there is
presence of the required mens rea.
- Fagan v Metropolitan Police Commissioner
Fagan, when parking his car, accidentally drove onto a policeman’s foot, at
which stage there was no mens rea. When he was asked to remove his car, he
declined, thus allowing the necessary mens rea to be present.
Held: Actus reus continued until the car was driven off the foot. By stretching
the actus reus to cover the refusal to move the car, actus reus and mens rea
did coincide.
- Series of Acts: treats a series of distinct acts as constituent parts of a larger
transaction.
- Liability may be attached where at some point in the series of acts the accused
has the necessary mens rea even if mens rea did not coincide precisely in time
with the act causing death.
- This approach extends to situations:
- Where there is a plan to kill, but the decision to dispose the body in a
particular manner is made later
- Where there is no preconceived plan to kill, but there is a clear
intention to cause death
- Thabo Meli v R
In accordance with a pre-arranged plan, the appellants took the victim to a hut
where they gave him beer, and struck him on the head while he was
intoxicated. Believing him to be dead, they rolled his body down a cliff to make
his death look like an accident. The victim died of exposure when lying
unconscious at the foot of the cliff.
- Where there were two separate acts, first to kill, and second to dispose
the body, they are treated as a series of acts in furtherance of one
transaction.
- There is no doubt that the accused set out to do all these acts in order
to achieve their plan, but just because they were under a
misapprehension at one stage and thought that their guilty purpose
had been achieved, before it was actually achieved, that does not
enable them to escape the penalties of the law. Their crime is not
reduced from murder to a lesser crime merely because the accused
were under some misapprehension for a time during the completion of
their criminal plot.
Voluntary conduct of
Switching off the victim
life support
system
Egg-shell
Unavailable or skull
inadequate situations
treatment
Complications of medical treatment:
- Explanation 2 to Sec. 299: Where death is caused by bodily injury, the person who
causes such bodily injury shall be deemed to have caused the death even though
proper remedies and skilful treatment could have prevented the death.
- Improper treatment
- Explanation 2 is applicable.
- Nga Ba Min v Emperor: The deceased was admitted to hospital after being
struck on the head and arm by robbers. She was discharged on her own
request, but was warned to attend daily to have the injuries dressed. Having
gone back to her village and disregarding the warning, the unskilled treatment
in her village caused her wounds to become septic, which eventually resulted
in her death.
Held: The appellant could not be held responsible for causing the death of the
deceased, as her death was due to her own ignorance and the unskilful
treatment she received, and the injuries on her head were only the remote
cause of her death.
- However, in R v Jordan: The victim was stabbed during a fight. In treating the
victim, medical witnesses showed that the administration of an antibiotic was
proper. However, the same treatment continued despite the victim proving to
be allergic to the antibiotic. The victim was also given large quantities of liquid
which clogged his lungs, thus causing his death.
Held: The appellant was convicted of murder as the treatment was palpably
wrong and produced symptoms which were the direct and immediate cause
of death.
- Therefore, unless it can be shown that death was legally attributable to the
original injuries and not to some intervening cause, the chain can be said to
have been broken, thus absolving liability.
- Therefore, the chain would not be broken only when the injury or death is not
too remote.
- Egg-shell skull situations
- Explanation 1 to Sec. 299: A person who causes bodily injury to another who is
suffering from a disorder, disease or bodily infirmity, and thereby accelerates
the death of that person shall be deemed to have caused his death.
- This imposes liability on an accused person who inflicts injuries upon a victim
suffering from an infirmity, and who subsequently succumbs to death from the
caused injuries which would not kill an ordinary person.
- “You must take the victim as you find him”