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CHAPTER 7 – CRIMINAL LAW
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In criminal law, a crime is considered as a wrong against the State
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Therefore,
a crime is a wrong which affects the public welfare, a wrong for which the State has prescribed a punishment
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Examples of crimes are assault,
rape, theft, causing hurt, cheating and robbery
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The main aim of criminal law is to punish the offender and does not, as a general rule, provide
compensation to the victim
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In Malaysia, definite description of acts constituting a crime and the corresponding penalty are contained in
the Penal Code
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The punishment for some crimes such as murder is very severe and the penalty is death
sentence
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The courts have over time recognized that there are at least three aims or purposes of sentencing an
offender, namely:
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Deterrence
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Retribution means punishing the offender to reflect society’s disapproval of the crime committed
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Since the
offenders have taken improper advantage upon others and consequently the criminal law will put the
offenders at some unpleasant disadvantage to “balance the scales”
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There is, however, another aspect of retribution which is frequently overlooked: it is
that society, through the courts, must show its abhorrence of particular types of crime, and the only
way in which the courts can show this is by the sentences they pass
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On the other hand, courts must not disregard it
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”

In another case, R v Davies (1978) 67 Cr App R 207, Lawton LJ said again :
“ … the Courts have to make it clear that crimes do not pay and the only way they can do so is by
the length of sentences
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2 Deterrence
Another objective of criminal law is deterrence where punishment is meted out to deter a particular offender
or future offenders from committing the crime by making an example of that particular offender
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General
deterrence aims at society at large whilst individual deterrence is aimed toward the specific offender
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Hilbery J in R v Ball (1951) 35 Cr App R 164 observed:
“In deciding the appropriate sentence a court should always be guided by certain considerations
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The criminal law is publicly enforced not only with the
object of punishing crime, but also in the hope of preventing it
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It may deter others who might be tempted to try crime as
seeming to offer easy money on the supposition, that if the offender is caught and brought to justice,
the punishment will be negligible
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The public interest
is indeed served, and best served, if the offender is induced to turn from criminal ways to honest
living
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It is normally
applied to rampant offenders such as burglary, robbery etc
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For some offenders, even a light sentence would deter them
from committing the offence again
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The main aim is to transform the offender so that he is able to resume a normal and
useful role in society
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The usual way to rehabilitate an offender is to impose community service or to undergo
certain rehabilitation programmes
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Studies have shown that the effects of rehabilitative
sentences do not vary much from retributive sentences
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However some
crimes do not require a blameworthy mind and an offender commits a crime once he has committed the
prohibited act
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One such example is speeding or illegal parking
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Actus Reus

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However sometimes an omission to act may also constitute an actus reus,
for example a parent fails to give food to a young child
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Thus A, who is thinking of ravishing a girl, has not committed the offence of rape
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Criminal law does not punish a person with only ‘bad’ thoughts or intention
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For example, a crime involves harm to a person,
the person’s action must be the ‘but for’ cause and ‘proximate’ cause of the harm
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Thus the prosecution not only has to prove that
the consequence occurred but also that the accused’s conduct was a cause of the consequence
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It does not have to be the only cause
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He argued that although the 15-year-old girl had gone with him to London, he had not induced her to go with
him as she had gone willingly and to some extent at her insistence because she was unhappy at home
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In AG Ref (No 4 of 1980) [1981] 1 WLR 705 CA, the accused
slapped the victim causing her to fall a flight of stairs and hit her head
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He then put her in a bathtub, drained her blood, cut her into pieces and
disposed of them
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The court held that where it is
not possible to prove which act caused the death of a victim, the accused may be convicted of murder if the
prosecution proves that he had mens rea in each act
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In Hill v Baxter
[1958] QBD the court held that if defendant (D) is stung by a swarm of bees while driving causing him to lose
control of the car, his act would be involuntary and he would not be ‘driving’ at that moment
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Silence – Normally inaction or silence does not give rise to an offence unless the offence can be committed
by omission
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However there are several
exceptions to the above general rule such as one has a duty to act under common law or statutes
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In
R v Miller (1982) UKHL 6, the defendant fell asleep whilst smoking a cigarette
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However he did not put out the fire but moved to another room
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(b) Consequences and causation – this refers to the proscribed result flowing from an act, for example the
actual bodily harm
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For example, in murder the prosecution must prove that the accused, by his act or omission, caused the
death of the victim
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It
means that the victim’s death would not have occurred but for the accused’s act or omission
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Thus the first step is to ask the question: “Would the victim’s death have
occurred but for the accused’s act?” If the answer is “no, the death would have occurred but for the
accused’s act”, then factual causation is established
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The mother took a few sips and went to sleep and never woke up
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The defendant was not liable for her murder as his act of
poisoning the milk was not the cause of death
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(c) Surrounding circumstances – although most offences require voluntary conduct, some offences do not
require any willed act by D
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This means that no positive act by D or no consequence is required
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‘State of affair’ offences are also offences of ‘strict liability’
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In R v Larsonneur (1933) 24 Cr App R 74, the defendant, a French woman, was deported against her will,
from Ireland to England, by the Irish authorities
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Her conviction was upheld despite the
fact that she had not voluntarily come to England but was forcibly brought back against her will
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This maxim requires the defendant to ‘take his victim as he
finds him’
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This is so even if the
defendant never foresees such a severe injury and also he never intended to cause such injury
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As a
result of this refusal she died the next day
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A guilty mind means an intention to
commit some wrongful act, for example intending to kill when firing the gun
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It refers to a number of states of mind (mental elements) which the law defines
as criminal
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Only
together they give rise to criminal liability
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Intention
In many of the most serious offences the mens rea required is that of intention to cause the proscribed
consequence

However, ‘intention’ under the law must be differentiated from a person’s ‘motive’
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Motive is the reason for doing something
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Robin Hood robs from rich Mr
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Recklessness
Recklessness is unreasonable risk-taking or unjustifiable risk-taking which is not permitted by law
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Whether the risk-taking is justifiable depends on the
social utility of the act
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Dangerous
surgical operations must be carried out in the interest of the life and health of the patient, yet the taking of
these risks is socially justifiable
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Thus if a surgeon performs a risky operation to save a life of a person, it
is unlikely the court would find that he acted recklessly
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This is sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat
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The maxim also found a place in the European Convention for the Protection of Human Rights in
1953 [as Article 6, Section 2] and was incorporated into the United Nations International Covenant on Civil
and Political Rights [as Article 14, Section 2]
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The burden of proving that a
person is guilty of a criminal offence lies on the prosecution
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It is not beyond a shadow of doubt, nor beyond any doubt, nor beyond all doubts, nor 100% guilty
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The above two rules were clearly laid down by the House of Lords in Woolmington v DPP (1935) AC 462
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The trial judge ruled that the case was so
strong against Woolmington that the onus was on him to show that the shooting was accidental
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Upon his appeal, the House of Lords held that the direction to the jury was wrong and the accused is
presumed innocent until proven guilty
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The appeal was allowed and Woolmington was released three days before his scheduled
execution date
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If, at the end of and on the whole of
the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the
prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution
has not made out the case and the prisoner is entitled to an acquittal
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When dealing with a
murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b)
malice of the accused
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Offences against a person

This type of crime includes offences directed against the safety, privacy and health of people
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Such crime normally results in the most severe
penalty under the law
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The main offences are:
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Robbery

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Theft

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Burglary

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Criminal damage

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Such offences include:
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Traffic offences

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Immoral offences (e
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prostitution)

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Drug offences

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Generally, the burden to prove that the defendant commits a crime lies on the
prosecution and the accused may raise the defence to negate the accusation
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1 Insanity
Where a defendant has acted with ‘mental incompetence’, he can raise a defence of insanity
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In R v Isitt
(1978) 67 Cr
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R
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He then sped away with the police
in pursuit
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He raised psychiatric evidence claiming that the original
accident had caused 'an hysterical fugue' leading to memory loss: his subconscious mind had taken over so
that he did not appreciate what he was doing when he was driving
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This is a complete defence to all crimes
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However, he will be
sent to a mental hospital for treatment
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The
court in that case formulated the famous The M’Naghten Rule which stipulates that every man is presumed
to be sane, and possesses a sufficient degree of reason to be responsible for his crimes, until the contrary is
proved
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Lord Denning in Bratty v AG for Northern Ireland
(1961) 3 All ER 523 HL held

“No act is punishable if it is done involuntarily: and an act in this context…means an act which is
done by the muscles without any control by the mind such as a spasm, a reflex action or a
convulsion; or an act done by a person who is not conscious of what he is doing such as an act done
whilst suffering from concussion or whilst sleepwalking…”

Automatism is a situation where the muscles act without any control by the mind; or with a lack of
consciousness, i
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that one’s bodily movements were unwilled and involuntary
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Some examples of
such automatism are uncontrolled reflexes, sleepwalking and hypoglycemia (low blood sugar)
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In R v T (1990) Crim LR 256 T took part in a robbery and was charged with
robbery and causing ABH
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The court
held that the rape constituted an external factor and therefore the non-insane automatism was open to the
jury despite the fact that Post Traumatic Stress Disorder is generally perceived as being a condition of the
mind
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3 Intoxication
Intoxication refers to situation where the accused committed an offence while he was intoxicated by drugs or
alcohols
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There are two types of intoxication: involuntary intoxication and voluntary intoxication
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The person who laces the drink will be the principal
offender acting through an innocent agent
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In AG for Northern Ireland v Gallagher (1961) UKHL 2
D intended to kill his wife and bought a knife and a bottle of whisky
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The House of Lord (Lord Denning) held:

“If a man, whilst sane and sober, forms an intention to kill and makes preparation for it, knowing it is
a wrong thing to do, and then gets himself drunk so as to give himself Dutch courage to do the
killing, and whilst drunk carries out his intention, he cannot rely on this self-induced drunkenness as
a defence to a charge of murder, nor even as reducing it to manslaughter
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This occurs in situations where the defendant commits an offence to avoid greater
evil of death or serious injury to himself or another or to prevent further damage to property
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Similarly trespassing is an offence, but if the accused
trespasses a property in order to put out a fire, then he is not guilty of trespassing
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However traditionally courts have been reluctant to allow extension of the defence
of necessity as it would open the floodgates
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In Southwark
London Borough Council v Williams (1971) 2 AER 175 the court held that for a charge of theft of food or
clothing, the defence of necessity will not be permitted
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”

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5 Mistake of Fact
Sometimes a mistake of fact, if it is genuine, is a defence to some offences
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If an offence requires knowledge of surrounding circumstances then an honest mistake can negative such
knowledge
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If the mistake is unreasonable it is
likely that the judge will find that there is no honest mistake
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The House of
Lords held that the accused would not be convicted of rape if he honestly although unreasonably believed
that the woman was consenting to it
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6 Self-Defence
Common law allows a person to use reasonable force to protect himself, his property or another person
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Generally, an
offence committed in self-defence will be negated by this defence and no punishment will be imposed
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What amounts to reasonable
force depends on the facts and circumstances of each case
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The case of PP v Dato’ Balwant Singh
(2002) 4 MLJ 427 is a typical example of self-defence
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His shop has been damaged and goods stolen
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He was charged with possessing
explosives without lawful object
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7 Duress
A person who has to act in a certain way because of physical force or threat is known as duress
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Therefore if the defendant is forced by threats from
another person to commit an offence he will not be liable for the offence
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However, the nature of the threat must be of reasonable fear at the very time of instant death
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The person threatened must be the accused himself, or a close member of the
defendant’s family
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In
R v Howe (1987) 1 AC 417, two defendants tortured and sexually abused a man who was then strangled to
death by one of them
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The House of Lords dismissed their appeals against conviction and held that the defence of
duress is not available to a charge of murder
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In this case D can allege
that he has the consent to perform the criminal act such as one has the consent to take away the bag or to
hurt someone
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Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not
actionable because they are impliedly consented to by all who move in society and so expose themselves to
the risk of bodily contact
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Touching a person for the purpose of engaging his attention has been held to be acceptable but physical
restraint is not
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For this purpose
touching the ‘person’ of the victim includes the clothes he is wearing
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Informed consent
In principle, V cannot consent to some form of conduct without adequate knowledge of its nature, and the
degree of knowledge required should depend on the degree of harm and risk of that harm to which V is
exposing himself
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Fraud in obtaining consent
In offences against person, the consent may be vitiated if it deceives V as to D’s identity or the nature of the
act
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In R v Williams (1923) KB 340, D a singing teacher had sexual
intercourse with a pupil aged 16 years after telling her it was part of voice training
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Public Policy
However in some cases public policy requires courts to lay down limits on the extent to which one is allowed
to consent or is to be bound by apparent consent given
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Thus, as a matter of public policy,
it is no defence to a charge of murder for D to say that V asked to be killed
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The court held that the
girl’s consent was irrelevant and said:
“No person can license another to commit a crime, if (the jury) were satisfied that the blows struck
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they ought to convict
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In R v Brown (1994) 1 AC 212, a group of 5 men were convicted for their involvement in consensual
sadomasochistic sexual acts, including genital torture, over a 10 year period
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The House of Lord held that consent is a defence to the infliction of bodily
harm where the activity is lawful but ought not to be extended to sado-masochistic acts
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She had asked him to do so
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The doctor reported the matter to the police and the husband was charged with causing actual bodily harm
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The branding was more akin to tattooing and cosmetic
enhancement rather than infliction of pain for sexual gratification
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Statutory rape
Another situation where the consent given by V is not a defence is statutory rape
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Statutory rape laws are based on the premise that until a person reaches a certain age, that
individual is legally incapable of consenting to sexual intercourse
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Some critics argue that an age limit
cannot be used to determine the ability to consent to sex, since a young teenager might possess enough
social sense to make informed and mature decisions about sex
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