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Hazwan Azreen Bin Ishak (YEEN)

CRIMINAL 4 (ACTUS REUS & CAUSATION) Criminal Liability It may only be imposed when the accused has done something prohibited. There must be the performance of an act & to attach blame or liability, the act must bring about a conduct or lead to the cause of an event. The particular result or event caused by behaviour of the accused must be prohibited by law. Conduct prohibited by law attracts penal sanctions & must be distinguished from other conduct which is not forbidden by law, Eg: Rules of religion Rules of morality Rules of ethics or rules of organization The resulting liability that ows from the act of the accused may be catagorized into: A) Conduct crimes This is where criminal liability is imposed simply because the accused has done something prohibited by law. These actions have no result, eg: possession of dangerous drugs under Dangerous Drugs Act 1952 B) Result crimes Here, the denition of the crime requires the conduct of the accused to cause a prohibited result, eg: death which is an offence under Sec 299 of PC The act which produces the prohibited conduct or result may be: i) A willed act ii)An involuntarily act iii)An omission Willed Act Voluntary conduct The conduct or the performance of the act by the accused must be voluntary or willed. The mind must be in control of the movement in that the act is a physical movement resulting from an operation of the will. Involuntary Act Involuntary conduct There may be situations where the physical movement is involuntary. A person may be pushed & falls uncontrollably. The conduct is not willed & most legal systems exempt such persons from criminal liability since they have not acted. There is no actus reus. Involuntary conduct may result because of: Causes which are external to the accused Causes which are the accuseds own fault Disease of the accuseds mind External Cause Under Common Law, an acquittal would be reserved for involuntary conduct caused by external factor In Malaysia, the accused may be discharged from liability for accident under Sec 80 of PC Accused Own Fault
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Hazwan Azreen Bin Ishak (YEEN)

Law not allow him to the defence Possible defence: Insanity (Sec 84) Sinnasamy v PP Re Pappathi Ammal AIR

Disease of Mind Sec 84 PC Omissions The general rule is that criminal liability is attached to conduct comprising positive activity by the accused but not his failure to act. Thus, a person who drowns his enemy by holding him under water will be criminally liable, but not if he does nothing upon seeing his enemy drowning. However, there are special exceptions to this general rule The word act includes omissions (Sec 32 PC) Sec 43: The word illegal or unlawful is applicable to everything: Which is an offence Which is prohibited by law Which furnishes ground for civil action In respect of the word illegal, a person i said to be legally bound to do whatever it is illegal in him to omit Failing to act when it is an offence This refers to omissions which are expressly made offences by PC. Eg: Sec 289, 187, 119 of PC Eg of case: Lee Sai Yan v PP Failing to act when prohibited by law The omission was prohibited by law What is prohibited by law certainly includes omissions which are expressly made offences but the term is not restricted to these offences. DSouza v Pashupati Nath Sakar, a ship captain had done nothing to remove a member of his crew who had fallen ill & subsequently died. The captain was charged with causing death by a negligent act under Sec 304A PC Held: The captains failure constituted an illegal omission since he had breached his statutory duty obligation under the relevant merchant shipping legislation to take all possible steps to arrange for the best treatment to be made to a sick person on board his ship in order to preserve his life. Although the legislation did not make the captains failure an offence, it did legally prohibit such a failure. Accordingly, the captains omission satised the physical element of the offence charged. Failing to act which furnishes ground for civil action The third circumstance requires a court to determine whether the particular accuseds omission would attract civil liability Most commonly related to Tort Law, in particular the tort of negligence. Such duty may only arise when: There is a special relationship A duty is voluntarily assumed A duty is assumed by contract A duty arising from the creation of a dangerous situation

Hazwan Azreen Bin Ishak (YEEN)

Special relationship The civil law imposes a legal duty to act where a special relationship exists between D & the person injured by Ds omission. Eg: Relationship between a parent & his young child & the child dies, the parent may be civilly liable. Since the parents omission (negligence) furnishes ground for civil action, the omission is illegal & can therefore form the basis of criminal liability. Duty voluntarily assumed Even if there is no special relationship between parties, a legal duty to act will be created if any person voluntarily assumes responsibility for another. R v Instan The accused lived with a 73 years old aunt. The aunt was healthy until before her death, she developed gangrene in her leg. During the last 12 days of her life, she could not fend for herself, move about or summon help. Only the accused knew of her state but gave her no food nor did she seek medical assistance. The accused was charged & convicted of manslaughter. She appealed. Held: Court afrmed her conviction stating that there was a common law duty upon the accused to provide food for the deceased which she failed to discharge. Duty assumed by contract R V Pittwood The accused was a railway gatekeeper employed to keep the gate shut whenever a train passed along the period 7am till late afternoon. Not many trains passed during the day period. One day, when he left the gate open, a train hit a car crossing the line, killing one man & injuring another seriously. The judge was of the opinion that there was gross negligence as he was paid to keep the gate shut & protect the public & that a man might incur criminal liability from duty arising out of a contract. Duty arising from creation of a dangerous situation R v Miller Appellant, while squatting in someone elses house, lit a cigarette & fell asleep before he nished smoking the ciga. It fell onto the mattress. Later he woke up & saw the mattress smoldering. He did nothing, proceeded to another room & went to sleep again. The house caught re, he was rescued & charged with arson (criminal act of deliberately setting re to property). Court ruled that once he discovered the smoldering mattress, he was under a duty to act. Benoy Chandra Dey v State of Calcutta A naked live galvanized electric wire had been connected from the house of Gopal to that of the accused. A 13 years old boy, while passing in front of the accuseds house, touched the wire & died instantly from electric shock. Held: As the accused knew about the electric connection, he was guilty of criminal negligence within the meaning of Sec 304A.

Hazwan Azreen Bin Ishak (YEEN)

Causation Many crimes require a proscribed harm (or result) to have been occasioned by the accuseds conduct. The law uses the concept of causation to determine whether the accuseds conduct was sufciently connected with the proscribed harm to warrant holding him accountable for it. There must be a chain of cause & effect between the act & the forbidden conduct/ result. Where there is no evidence that a prohibited conduct/ result was the consequence of an act / illegal omission, no offence is then established. Ismail v PP The purpose of establishing causation is to ensure that only those who are found criminally responsible for the death of a victim may be punished for such a serious consequence. The test for causation The test for factual causation If Vs death would not have occurred without the accuseds conduct, there is factual causation. There must be no break in the chain of causation between the accuseds conduct & the resulting injury. This is sometimes described as the but for test, the question being whether V would not have died but for the accuseds conduct. Traditionally, the accuseds conduct would be termed a causa sine qua non ( a necessary or indispensable condition ) of Vs death. Conversely, if the Vs death would have occurred despite whatever the accused did or did not do, factual causation is not established & the causal enquiry is at an end. Causa Causan or Strict Test The act of the accused should be the immediate cause of death. A person can only incur criminal liability when his conduct is regarded as the legal course of the injury suffered by V. Lee Kim Leng v R With regard to the offence under Sec 304A, the test of causation is a strict one. The deceased was knocked down by the stationary taxi when it collided with the appellants car while crossing the pedestrian crossing. The appeal was allowed by referring to the case of Omkar Ram Pratap. To incur criminal liability under Sec 304A, the death should be resulted directly by rash & negligent act of the accused & the act must have been the proximate & efcient cause without intervention of anothers negligent. The death of the deceased was due to the collision between the appellants car & the taxi. It must be established that the collision was entirely or at least because of the appellants conduct. It is insufcient to establish that the appellants was wholly or mainly responsible for the collision. Case: Mills The death of the deceased must be due to the accuseds act in & rash & negligent act must be the immediate cause of death & not merely a remote cause of it. Case: Suleman Rahiman Mulani AIR There must be direct nexus between the death & the act of rash & negligent.

Hazwan Azreen Bin Ishak (YEEN)

Case: Lee Lai Siew The appellant was charged for an offence under Sec 304A for causing the death of the passengers when the ship was in excess of the permitted numbers of boarded passengers. Held: Overloaded ship can only be a very remote fact in causing the tragedy since there was a fact that there was heavy waves & it had caused confusion & panic to the passengers on board. In respect of cases under Sec 299 & 300, the test of causation should be if at the time of death, the original wound is still an operating cause & a substantial cause, the death can properly be said to be the result of the wound although some other cause is still operating (Case: Leong Siong Sun) The death must be resulted either from the act itself or from some consequences necessarily & reasonably contemplated as its result. Case: Yohannan v State of Kerala AIR If the death is connected with the act of violence without any intervention of any considerable change of circumstances, the death must be regarded as proximate & not too remote. It is suggested that for offences where the mens rea is knowledge or intention, the test for the offences under Sec 299 or 300 would be applicable. As for the offences where the mens rea is rash or negligent is required, the test for the offences under Sec 304A would be applicable. Novus Actus Interveniens (Breaking the Chain of Causation) Criminal liability for an act is established only when there is an unbroken sequence of cause & effect in that the injury can be attributed directly to the act of the accused. In order to break the chain, the reason must be something unreasonable, extraneous or extrinsic. (Lord & Anor v Pacic Steam Navigation) The test was discussed in R v Smith If the second cause is so overwhelming as to make the original wound merely part of the history, only then it can be said that the death does not ow from the wound. Case: Leong Siong Sun The deceased died due to the peritonis caused by infection & inammation of the membrane lining the cavity of the abdomen, brought about by the ruptured intestines due to untreated surgery. It was contended that the cause of death was due to the failure on part of deceased to be treated properly. Held: Court dismissed the appeal on the reason that it was unable so say that the ruptured intestines was not the operating & substantial cause of death or it cant be said that the failure to operate on part of the deceased was a substantial cause of death & it was so overwhelming as to make the rupture of the intestines a part of history. Category of Causation Cases Complications of medical treatment Voluntary conduct & attributes of the victim Intervention of third party

Hazwan Azreen Bin Ishak (YEEN)

Complications of Medical Treatment It is not uncommon in homicide cases that the ofcial cause of death may not be due directly to the injury itself. Ordinary complications owing from the original wound did not break the chain of causation (Salebhai Kadarali v Emperor AIR) A submission that the deceased could have died from medical negligence during treatment would also not stand where death is caused by bodily injury inicted by the accused (PP v Gunus Sagena) If the treatment was given in bona de by competent medical practitioners, it will not exempt the accused person form the liability of causing death (R v Steel) Explanation 2 of Sec 299 PC It will also includes inadequate medical treatment in circumstances where the deceaseds life might have been saved. Case: Morcha AIR The mere fact that if the expert treatment had been available & the emergency operation had been performed, there were chances of survival of the deceased can be of no avail to the appellant. Case: PP v Aziz bin Mat Shah It would also extends to cover the situations where there is lapsed of time between the original wounds & the death & it will not break the chain of causation. Case: Yohannan v State of Kerala Although there was a lapsed of 7 months between the original wounds & the death of the deceased but it does not break the chain of causation as there was no indication on unexpected intervention & the death was legally attributed to the injury. There are, however, decisions which are in conict as to the application of Explanation 2 to cases of improper treatment which give rise to medical complications leading to the death of the deceased. Case: Nga Ba Min v Emperor Deceased died due to the sepsis that penetrated through her skull which caused by the unskillful treatment on the injury inicted by the robbers. It was observed that under normal circumstances, a person would recovered in fortnightly. Her death was due to her ignorance & unskillful treatment which she received in her village. The injuries to the head was too remote & accused should not be held liable for the death of deceased. The death must be directly connected with the act of violence or other substantial cause & not merely by chain of causation & effect. It must be directly inuenced & calculated to produce the effect without the intervention of any changes in circumstances. The death must be caused by the bodily injury in question in order to satisfy the clause in Explanation 2 of Sec 299 but on the facts, the death was not directly due to the injury in question but due to the bad treatment. See case R v Jordon This 2 cases should be regarded as distinct in its own facts in view of the language in Explanation 2. However in Tajammal Jussein v Nasar Mehdi PLD, held that although there was
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Hazwan Azreen Bin Ishak (YEEN)

negligence in treatment of the wound, the negligence amounted to not resorting to proper remedies & skillful treatment within the meaning of the Explanation 2 Sec 299. Case: R v Steel Intervention of Victim There will be situations where there will be voluntary intervention by V which leads to his own death: Escape or fright & ight case The egg-skull situations Religious & other beliefs of V Escape or Fright & Flight V die not because of the injury directly caused by the offender. The voluntary act of V breaks the chain of causation R v Halliday Held: Accused person shall not be held liable for the injury unless it was done accidentally or deliberately. If it is reasonable for V to act in such a way where there is an immediate danger then accused person should be liable for the injuries. See Case: R v Roberts Case: Henderickson The voluntary act of deceased who chose to stay outside the house was held to have break the chain of causation & accused person shall not be liable for causing the death of deceased. The voluntary act of V also has break the chain of causation even though V may have other option to choose to escape. Joginder Singh v State of Punjab There is no evidence to suggest that the deceased jump in to the well because the accused person drove him to do so & leaving him no option to escape. Egg Shell Skull When V suffer from an inrmity & die from injuries which would not kill an ordinary person. Explanation 1 Sec 299: A person shall be liable for the injury to a person who suffered any disorder or bodily inrmity & shall be deemed to cause his death because the accused should be liable in judging the likelihood of death, consideration is to be given whether that particular V would die. There is another view given by Indian Courts decisions, where if the ordinary person would not have died, the appropriate conviction should be under the offence of causing hurt or grievous hurt & not culpable homicide. The injuries must likely to cause death not only to the particular V but also an ordinary V by considering his size, age & sex. Bharat Singh v Emperor Held: There is no reason that accused would have knowledge that the deceased was suffering from a badly enlarged heart nor the evidence about the physical inrmity. The mere fact that he was an old man 60 years old would be insufcient under the circumstances of the case to justify the inference that the offence was a culpable homicide not amounting to murder. Court substituted it with an offence of voluntary causing hurt. The post mortem report revealed that the cause of death was due to
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Hazwan Azreen Bin Ishak (YEEN)

asphyxia & heart failure caused by the injury but because of the deceased suffered from an enlarged heart it has increased the probability of heart failure even from minor injuries. Beliefs of Victim The deceased may also have certain beliefs that may lead him to refuse medical treatment which also embodied in Explanation 1 Sec 299. R v Blaue V who is a Jehovah witness, who being injured by accused person on the ngers refused blood transfusion & she also refused the nger to be amputated. V died 2 weeks later due to lockjaw & the question before the court is whether the death caused by the injury inicted by the accused person. Held: If the refusal was unreasonable one then it has break the chain of causation but the standard must not be based on particular V but also to an ordinary person. As long as V died due to the injury inicted by assailant, then he should be liable for death of V. The fact that the V refused to stop this end coming does not break the chain of causation. Third Party Intervention R v Pagett Court dismissed the appeal on the ground that no act done in execution of a legal duty operates as a novus actus intervenes & the act itself caused by the accused. In this case, the appellant was convicted for manslaughter of a girl who died because the shot red by the policemen. The appellant used the girl as a shield to protect himself from the police bullets.