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Mens Rea (Malaysian law), Criminal Code Bill Clause 18(c) - Coggle Diagram
Mens Rea (Malaysian law)
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Intention
- Word "intention" not defined in the Penal Code
- State of mind of one aims to bring about a particular consequence. Intention is one of the main forms of mens rea, anf for some crimes the only one (e.g. murder)
- S300 (Murder) - provides that a culpable homicide is murder if the act that caused death is done witht he intention of causing death
- you know that your actions will cause it, you will know the result of your actions, you desired the outcome/damage that will happen
- if you can't establish direct intention, go to recklessness
- Intention --> consequence
Lee Kong Eng v PP 1976:
- Their intention, therefore was obviously to shoot to kill
Tan Hoi Hung v PP (1966):
- Facts: C is convicted of a charge under the Internal Security Act for consorting with Indonesian Armed Forces and sentenced to death. Defence raised was one of duress, where C did what he did by reason of being under threat of death
- Held: C's story of threats should be considered as something that might've afforded mitigating circumstances and as the learned judge failed to pay attention to that matter, sentence would've been reduced to imprisonment for life.
Yap Sing Hock v PP (1992):
- Facts: man intends to commit the offence,,, if [he] has foresight (i.e. knows in advance) that his conduct will lead to the commission of the offence... and he desires the commission of such offence...
- [W]here foresight above-described is present, but the desire above-described is absent, then it becomes the mens rea of "recklessness"...
PP v Abdul Rahman bin Akif (2007):
- Facts: dangerous drugs - trafficking - whether accused knew the content of packages found in his car - whether presemption of trafficking proved - Dangerous Drugs Act 1952 s37 (da) & s39b(1)(a)
- Held: There's intention. Manner in which the 3 packages were concealed in the car shows that C knew of the content of the packages
Principle:
- Intention is matter of fact where in the nature of things cannot be proved by direct evidence.
- Can only be proved by inference from surrounding circumstances.
- Whether these surrounding circumstances make out intention is a question fo fact in each individual case
Knowledge
- Not defined in the PC
- "to know a thing means to have a mental cognition of it"
- to believe a thing is to assent to a proposition or affirmation or to accept a fact as real of certain without immediate personal knowledge
- knowledge and reason to believe are to be clsoely distinguished
PP v William Tan (1970):
- Facts: Penal Code s300 - murder - murder by car - knowledge that act is so imminently dangerous that it must in all probability cause death - failure of trial judge to direct jury on knowledge of consequences of act - conviction set aside
- Knowledge is forceful word that invites certainty and not mere probability
Reasons to Believe
- S411 - Whoever dishonestly receives / retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imrpisonent for a term which may extend to 5 years / with fine / with both
- S26 - A person is said to have "reason to believe" a thing, if he has sufficient cause to believe that thing, but not otherwise
PP Nageswari (1994):
- What is crucial for the accused to show only be one of two things
- Accused didn't know what he was doing
- Accused knew what he was doing but he didn't know it was either wrong/contrary to the law.
- Letter from hospital would be relevant evidence for the accused to rely upon in order to establish the insanity of the accused at the time of commission of the offence
- Knowledge --> circumstance of an act, omission or a state of affair
e.g. Offence of assisting offenders - s4(1) Criminal Law Act 1967:
- Where a person has committed an arrestable offence, any other person who, knowing /believing himto be guilty of toffence or some other arrestable offence, does without lawful authority or reasonable excuse any act with intent to impede his apprehension or prosecution shall be guilty fo an offence
e.g. Handling stolen goods - s22(1) Theft Act 1968:
- A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so
Recklessness
- A person is reckless:
- As to a circumstance if he is aware of a risk that it exists or will exist;
As to a consequence if he is aware of a risk that it will occur
- AND, in the circumstances known to him, its unreasonable to take the risk
- you know the risk, but you don't know the specific result, you can't predict the extent of damage you will cause
- SUBJECTIVE RECKLESSNESS
R v Reid (1992):
- If a driver rakes evasive action in an emergency, his action can involve the taking of a risk that is regarded as justified int he special circumstances, so that he cannot be described as driving recklessly
- There's canses where despite D being aware of the risk and deciding to take it, he does it due to misunderstanding, sudden disability / emergency that renders it inappropriate to characterise his conduct as being reckless
R v Renouf (1986):
- Facts: Charged for driving recklessly
- s3(1) Criminal Law Act 1967
- A person can use such force as is reasonable in the circumstances in the prevention of a crime, or in effecting / assisting in the lawful arrest of offenders / suspected offenders / of persons unlawfully at large
R v Cunningham (1957):
- A person is reckless when:
- There's a risk of harmful consequence that is not negligible
- Having recognised that there's such a risk, he still goes on to do it
R v Caldwell (1981):
- A person is reckless when:
- There's a risk of a harmful consequence that is not negligible
- Having recognised that there's such a risk, he still goes on to do it
OR
- He fails to give any thought tot he possibility of there being any such risk (when a reasonable person would have) and goes on to do it
R v G & R (2003):
- Overruled R v Caldwell
- Charged with arson - causing damage by fire to comercial buildings, being reckless whether such building will be damaged
- Trial judge's comments:
- I am quite satisfied that they ddi not intend to burn down the building
- I am quite satisfied in my mind they subjectively did not perceive a risk in their minds that the building would be burned down
- Overruled R v Caldwell, must be aware of the risk but it was obvious to a reasonable bystander - an adult, not youths, lacking in maturity, unable to assess what was going on
- Matter was appealed to the HL
- What do you think should have been in the fair outcome?
- HL allowed appeal
- Approved definition of recklessness in draft Criminal Code Bill clause 18(c) - SUBJECTIVE TEST
Recklessness (Msia)
- In most criminal cases, it suffices to show criminal liability when a person has the intention to cause a certain thing to happen or that his rash act causes that thing to happen
- If a person doesn't have the intention to cause serious harmful consequences but is taking unreasonable risk to cause such a serous harmful consequence, then he is said to be reckless
3 possible mental states related to the risk which may occur:
- A may have already known the risk;
- A may have failed to give any thought to the possibility of there being any risk
- A may have thought over about the possibility of any risk and concluded that there's none
Negligence
- An act that "falls below the standards expected of a reasonable ordinary prudent person"
- Road Traffic Act 1988:
- 304a: Whoever causes the death of any person, by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment for a term which may extend to 2 years / with fine / with both
Nidamarti's Case (1972):
- Culpable rashness is acting with consciousness that the mischievous and illegal consequence may follow, but with the hope tha they will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening. The imputability arises from acting despite the consciousness (lexuria)
Idu Beg's Case (1881):
- Criminal rashness is hazarding a dangerous / wonton act wiht the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be casued, the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences
R v G & R [Criminal Code Bill clause] 18(c):
- [A] person acts... "recklessly" [within the meaning of s1 of the 1971 Act] with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur, and it is, in the circumstances known to him, unreasonable to take the risk..
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