LAW 505 CRIMINAL LAW 1

CRIMINAL ASSESMENT 2

PREPARED BY:
AMEER IMRAN BIN SHAHIMI 2019324479
PREPARED FOR:
MADAM AUDAH BINTI HASSAN

LWB03E
Assignment 2
Answer both questions.
1. Zoro and Mac were lost deep in a desert. After 5 days, they were weak
from starvation. It was agreed that one of them should be killed to
provide nourishment for the other. They drew lots and Zoro won. Zoro
then killed Mac and survived on his flesh for ten days before he was
rescued. Discuss the relevant defence/s in relation to the said act.

2. Aral was driving around town one night when he chanced upon an alley
lined with girls whom he thought to be prostitutes. When he stopped his
car by the side of the road, a girl approached him. After some exchanges,
it was clear that she was a prostitute. They agreed on a price and Aral
drove her off to a secluded place further up the road. After having sexual
intercourse, it was later discovered that the girl was under sixteen years
of age. If Aral is charged with statutory rape under section 375 of the
Penal Code, can Aral claim that he did not know of her age as he thought
she was much older, due to her physical appearance and that she herself
consented to the act. Advise Aral.
Question 1
Whether the defence of necessity and consent can be used by Zoro to justify his action of
killing Mac.

For the defence of necessity, the act must be done without any criminal intention but not
without any knowledge of it. It is acceptable to do an act in good faith that prevents a greater
harm from taking place. It is also being called as a duress of circumstances. An important
issue while applying this defense is whether necessity can be used to justify murder. It can be
used as defence to exempt a person from criminal charge only if they managed to prove the
crime is done to prevents a greater consequence.

Section 81 of Penal Code stated that nothing is an offence merely by reason of its being
done, with knowledge that it is likely to cause harm, without any criminal intention to cause
harm and in good faith for purpose of preventing or avoiding harm to person and property. The
elements needed to be fulfilled for this defence to succeed is we need to prove that the
situation of necessity is present where it threatened harm to person or property, it was such a
nature and the threatened harm was so imminent.

In the case of PP v Ali Umar, the respondent had been charged under Section 49 (1) of the
Customs Act 1967 for carrying tin-ore in a local craft without permission of Director-General
of Customs. They claimed as a defence that their boat, which was destined elsewhere, had a
broken rudder forcing them in distress to enter Malaysian waters. The court held that necessity
justified the respondent to enter Malaysian waters. The boat they were travelling was in
distress as rudder of boat was broken in International waters, thus it is necessary for
respondent to seek shelter for safety of boat and preserve lives of crew.

In the case of R v Dudley Stephens[3], a ship was cast away in a storm. The people on board
had nothing to eat for many days. On the twentieth day, the accused decided to kill the cabin
boy and feed on his body. After being rescued, they were charged for murder. They pleaded
necessity but the court held that self-preservation was not an absolute right and convicted
them of murder. Self-preservation cannot be considered as defence of necessity, no man has
the right to take another’s life and homicide cannot be justified by necessity.

In regards of this current situation, for Zoro to succeed for defence of necessity, he must prove
where the situation of necessity is present. When Zoro and Mac were lost deep in a desert, it
obviously will threatened harm to them as they are stranded somewhere unknown. It is also
such a nature that it was out of their control they got lost. The threatened harm was so
imminent as they had starved for five days which clearly showed they in danger Thus situation
of necessity is present. Zoro then need to prove that it was known to him it was likely to cause
harm, and as we can see he killed Mac so it does cause harm. Next, Zoro need to prove there
are no criminal intention to cause harm, and as it is, Zoro act of killing Mac was merely on the
basis on necessity as one of them need to survive until getting rescued. Lastly, it must be
done in good faith for purpose of preventing or avoiding harm to person and property. Zoro
and Mac had agreed as they drew lots to determine who need to be killed in order for the other
to survive.

Nevertheless, Zoro may not succeed in his defence of necessity. By referring the case of R v
Dudley Stephens, the principle derived from this case is that self-preservation cannot be
considered as defence of necessity. No man has the right to take another’s life and homicide
cannot be justified by necessity.

Moving on, for the defence of consent. From the case of Abdul Hamid v PP, consent is an act
of reason accompanied by deliberation, which includes the balance of good and evil. In case
of consent, the accused is protected in causing harm, less than grievous hurt, if the other
person consented to it. The person should not have the intention to cause any harm though
he may have knowledge of the harm. It must also be given freely and must not be obtained by
force, threats, inducement or deception.

Section 90 of Penal Code provides is not a consent if it was given under fear of injury or
misconception of fact, it was given by a person with unsoundness mind or intoxication and
lastly, consent given by a person who is under 12 years of age. In the case of R v Clarence,
the husband acknowledge he was suffering from gonorrhea, but he still had sexual intercourse
with his wife. The wife was ignorant of that fact, and if she had known she will not have
consented to the intercourse. It was held that there is an implicit consent by the wife to
intercourse in her entering into the marriage with the accused. The act is immoral but not to
the extent of unlawful.

Section 88 of Penal Code provides that nothing, which is not intended to cause death, is an
offence by reason of any harm which it may cause, or be intended by the doer to cause, or be
known by the doer to be likely to cause, to any person for whose benefit it is done in good
faith, and who has given a consent, whether express or implied, to suffer that harm, or to take
the risk of that harm. In the case of Sukaroo Kobiraj v Empress, the appellant who was
unskilled in surgery, operated on a man, who then died from hemorrhage due to his mistake.
It was held by court that appellant had experimented without any knowledge of the procedure
even though he had performed at least two previous operations, thus is why the element of
good faith under Section 88 was not satisfied. Furthermore, it could not be said that the
deceased had consented to the operation when he was unaware of it.

In this current situation, Zoro must prove that consent is present, thus we can assume that the
consent is present when they both agreed on drawing lots to decide who will be killed. The
consent was given willingly and does not fall in any of the elements stated in Section 90.

Furthermore, as accordance to Section 88, first the action must not intend to cause death. In
this case Zoro fails as the action he did caused the death of Mac even though it was actually
for his survival. Nevertheless, it was done in good faith as they both drew lots and the result
was fair and square. Last but not least, the consent was impliedly been given the moment they
agreed to draw lots. Section 302 of Penal Code provides that whoever commit murder shall
be punished with death.

In conclusion, Zoro may found himself liable for murder as he fails the elements for the defence
of necessity and consent.
Question 2
Whether the defence of mistake can be used by Aral to defend himself under the charge of
statutory rape, section 375 of the Penal Code.

Statutory rape is defined as a crime that involves sexual contact with a person who is under
an age specified by law, commonly referred to as the “age of consent.” Rape is classified
under sexual offences, which comprises an offence relating to sexual desire between men
and women. According to section 375 of Penal Code, rape is defined as an unlawful sexual
intercourse between a man and a woman without the latter’s consent and against her will. It
is classified into three categories; statutory, non-statutory and incestuous. In the issue of
statutory rape, the offence involves women under the age of 16, regardless of their consent
as stated in Penal Code, section 375 (g) where stated that, ‘with or without her consent, when
she is under sixteen years of age.’ The act clearly show that the issue of consent is irrelevant
if it involves girls under sixteen years old. The law implies that at this age, they are incapable
to give consent as they cannot comprehend the nature, quality, and consequences of the act.
Rape is considered as serious crime according to the Malaysian Penal Code and could be
punished with imprisonment for a term which may extend to thirty years according to the latest
amendment in 2014. Section 376 laid out the punishment for rape, where the offender shall
be punished with imprisonment for a term of not less than ten years and not more than thirty
years and shall be punished with whipping.

In this current issue, Aral had sexual intercourse with a girl under sixteen years old when it
was committed, thus Aral is being charged under statutory rape, section 375 of the Penal
Code. Aral did argue where the action was consented by the girl, but under 375(g), ‘with or
without her consent, when she is under sixteen years of age’, thus it is rape. Punishment for
statutory rape with consent as stated in Act 376 (1) is imprisonment for a term which may
extend to twenty years and shall also be liable to whipping. In the case of Mohd Salleh bin Nik
Mohd Yusof v PP, sexual intercourse with under sixteen years old girls was rape even with
their consent. Absence of consent is irrelevant for proving the offence.

Nevertheless, Aral may plead for defence of mistake as Aral claim that he did not know of her
age as he thought she was much older, due to her physical appearance. Defence of mistake
is laid down in two provisions, section 76 and section 79. The differences between these two
sections are the words bound by law and justified by law. In section 76, the person is said that
he is bound by law when he has the authority to do the act given by the law but in mistakes
had done the crime. On the other hand, the person who is said as justified by law is when he
believes that his action is legal and allowed by the law.

Under Section 79, nothing is an offence which is done by the person who is justified by the
law, or who by the reason of mistake of fact and not by mistake of law in good faith believes
himself to be justified by law to do it. In the case of R v Abdullah, where the accused, believing
the girl was above 16 years old, committed a statutory rape. The court held two views
regarding this matter in which, if the appellant believed in good faith that the girl was above
16, there would be no offence as it is a mistake of fact. Mistake of law in this case is excluded
where the requirement with or without consent is immaterial when she is under 14 years old.
However, he was still convicted as the judge chose not to consider the use of the defence of
mistake.
In order for defence of mistake to succeed, the elements must first need to be established
where the act was mistake of fact, done in good faith and not a mistake of law. Mistake of fact
is not defined in the Penal Code. A mistake of fact is an error as to the existence of any state
of thing. It may arise from an inadequate or wrong information, forgetfulness, negligence or
superstition. Obvious examples are where A mistakes his son to be a tiger, or where B believes
her husband is dead and remarries.

The first elements need the act done by the defendant to be a mistake. Mistake of fact consists
in an unconsciousness, ignorance, or forgetfulness of a fact. In Malaysia, the court only
enquired whether a person’s ignorance or mistake had been made in good faith or not. In the
case of Sulong bin Nain v PP, the accused was apprehended with two hand grades in his
possession. The accused then claim the defence of mistake since he believed he was bound
or justified by law to surrender the hand grenade to the police. The court rejected his appeal
because the court took into consideration that the act is mistake of law and not mistake of fact.
Furthermore, in another case, case of Chirangi v State of Nagpur where the appellant, who
suffered from bilateral cataract and had an abscess in his leg, which caused a temporary
delirium, and created a secondary delusion affecting his vision, killed his son by mistake
thinking he was a tiger. By reason of mistake, he thought he was justified in destroying the
dangerous animal such tiger, which was in fact his son. Therefore, he was protected under
section 79 of the Penal Code.

The second element is that the mistake done must be in good faith. Sections 76 and 79 of the
Penal Code require the accused to have ‘in good faith’ believed him to be bound or justified
by law in doing a criminal act. Section 52 of the Penal Code defines ‘in good faith’ in terms of
‘due care and attention’. In the case of PP v Tunku Mahmood Iskandar, to prove good faith,
the accused must show that he acted wisely and that he had reasonable grounds for believing
that he ought to do what he did. The term includes due enquiry and implies not only an upright
mental attitude, but also clear conscience and that ordinary prudence had been exercised
according to the standard of an ordinary person. In another case, in State v Ram Bahadur
Thappa, the accused had attacked in good faith that he believed to be a ghost and not a
human and therefore he was justified by law. The court held that he can relied on section 79
as a defence even though it was shown that had he exercise extra care and attention; the
incident may have been averted.

Lastly, the mistake was one of fact and not of law. Ignorance of law is no excuse. It basically
means that a mistake of fact is excusable, but a mistake of law is not excusable. It is the duty
of every citizen of the land to know the law of the land, and to behave accordingly. If a person
said he do not know the law and due to that, he did the offence, it is not excusable since it is
presumed that everyone knows the law of the land. Mistake on a point of law is no defence in
criminal cases. In the case of King v Tustipada Mandal & Ors, mistake as to the existence or
nonexistence of any law on a relevant subject as well as to what the law is.

Based on the situation given, Aral need to establish all the elements required to succeed. For
the first element, by applying the case of R v Abdullah, he may prove that when he met the
girl, he in sound mind to believe based on the girl’s appearance that she must be over sixteen
years old. He also may prove that even an ordinary person would entirely believe the girl is
over sixteen years old. Next, Aral in his good faith, may argue he believed that the girl in not
underage, and he knows for the fact that having sexual intercourse with underage girl is an
offence. He can emphasis that if he knows about the girl’s age, he will ultimately refuse the
service as he knows that it is an offence. This will prove that it is mistake of fact, not mistake
of law as Aral do realized it is wrong to have sexual intercourse with underage girl. Aral may
fulfil all the requirements needed, but for statutory rape offences, mistake of age defence is
not strong enough to made him succeed. As we can see in the case of R v Abdullah, the
accused used mistake of age defence, but still he was convicted by the court. In history, the
first successful use of the mistake-of-fact defence in a statutory rape case appears to have
occurred in California in 1964 in People v. Hernandez, 393 P2d 673. The California Supreme
Court ruled that the defendant's reasonable belief that the girl was 18, which was the age of
consent in California at that time, was a defence, since this belief negated any criminal intent.
However, they subsequently repealed them and today the defence is no longer allowed.

In conclusion, the defence of mistake may seem to be suitable for Aral to use for his charged,
and he also may have fulfilled the requirement needed, but as to the law of statutory rape
provided, the mistake of age defence is not accepted. Thus, in this case, Aral may not succeed
in his defence, and may still be charged for statutory rape.