BASIC ELEMENTS OF CRIMINAL LIABILITY

INTRODUCTION

• Every crime has its own definition (compare murder (S300) with rape (S375)) but most crimes have similar characteristics ie their basic elements.

• Generally most legal systems adopt the position that criminal liability is only justifiable if a person commits a prohibited act/causes forbidden harm and his actions are accompanied by a blameworthy state of mind.

• This is often stated in the form of a Latin maxim “actus non facit reum nisi mens sit rea” = an act does not make a person guilty unless his mind be also guilty.

• From this it can be deduced that as a general rule criminal liability is only imposed on a person if there is a coincidence of the following 2 ingredients :-

• 1. Actus reus : the conduct or action of the accused which produces or constitutes the forbidden harm for instance firing a gun and killing somebody

• 2. Mens rea : a blameworthy state of mind for instance intending to kill when firing the gun.

ACTUS REUS

• Before imposing criminal liability there must be conduct ie the accused must have done something

• Criminal law does not punish thought crime

• No matter how wicked one’s intention the law insists upon a physical manifestation of those evil intentions before it will intervene

• One exception : S121A of the Penal Code

• The actus reus of every crime is different making a definition of ‘actus reus’ impossible

• But the nature of the ‘actus reus’ can be seen from the following 2 types of crimes :

• 1. Conduct crimes• 2. Result crimes

• Conduct crimes : where criminal liability is imposed simply because the accused has done something that is prohibited by law – these actions need have no result

• Examples : possessing controlled drug, driving a motor vehicle on a road in a reckless or dangerous manner

• Result crimes : the definition of the crime requires the conduct of the accused to cause a prohibited result

• Examples : for culpable homicide the act of the accused must cause death

• The causing of the prohibited result is the critical element in the offence

• The main distinction between conduct crimes and result crimes is that with result crimes it must be established that the conduct of the accused caused a particular prohibited result

• The common element in the definition of crimes is that there be some act or conduct on the part of the accused

• What is meant by an act or conduct? No comprehensive definition in the Penal Code but the word act denotes a single act as well as a series of acts

• In considering the meaning of an act or conduct it is necessary to consider 2 important issues :

• 1. The act/conduct must be voluntary

• 2. The act/conduct may include omission to act

1. Conduct must be voluntary

• 1. The common law approach• Holmes (1881) defined an act as a

willed muscular contraction• The mind controls bodily movement

by sending instruction to the muscles• An act is therefore a physical

movement resulting from an operation of the will

• If one is falling uncontrollably down the stairs and knocks someone down during the fall then one is not ‘acting’ because his physical movement is not the result of an exercise of the will therefore criminal liability will be inappropriate in such a case.

• Where physical movement is involuntary but causes harm, punishment would be undeserved because involuntary conduct cannot be deterred

• A person who committed an involuntary conduct is in no need of incapacitation or rehabilitation

• Accordingly most legal systems have exempted such persons from criminal liability as there is no actus reus

• The common law has afforded a defence of automatism for such cases.

• The common law has regarded the following conducts as involuntary conducts and have afforded the defence of automatism to them :

• 1. Physical compulsion eg being pushed down a flight of stairs

• 2. Reflex movement of an external origin eg reflexive movement while being attacked by a swarm of bees

• 3. concussion

• 4. Unconsciousness eg movement while under the effect of a general anaesthetic

• 5. Hypnosis• 6. Somnambulism/sleepwalking• 7. Hypoglycaemia where a diabetic

with a blood sugar deficiency acts in an uncoordinated manner

• But common law courts have exercised extreme caution in this regard because an accused found to be acting in a state of automatism is entitled to a complete acquittal

• Therefore in drawing up the category of persons entitled to such a defence the courts have been careful only to include those who are safe to release in that they are unlikely to repeat their automatic behaviour

• The House of Lords in Sullivan (1983) 3 WLR 123 indicated that acquittal on grounds of automatism should be reserved for those cases where the involuntary conduct was caused by some external factor such as a blow on the head causing concussion or the administration of an anaesthetic for therapeutic purposes

• Consequently the following 2 categories of involuntary conduct are not afforded the defence of automatism :

• 1. Involuntary conduct caused by disease of mind

• 2. Involuntary conduct caused by accused’s own fault

• 1. Involuntary conduct caused by disease of mind – if the involuntary movement had an internal cause resulting in a mental impairment the accused should not be acquitted on grounds of automatism but should receive the special insanity verdict which would result in indefinite detention at His Majesty’s pleasure – control can be maintained over persons thought dangerous

• If they are suffering from a disease of the mind there is always the risk that they may repeat their anti social behaviour

• 2. Involuntary conduct caused by accused’s own fault

• If accused takes drugs where he knows or ought to have known that there is a risk of resultant involuntary conduct the law will not afford him the defence of automatism

• He is to blame for bringing about the involuntary conduct as the criminal law is concerned with the punishment of the blameworthy who causes harm

• 1. The Penal Code approach• No comprehensive definition of “act’ and no

defence of automatism expressly provided under the Penal Code

• The insanity provision of S84 is the only relevant law and applies to all cases of involuntary conduct

• In Sinnasamy v PP (1956) 22 MLJ 36 it was assumed that if an accused acted in an involuntary manner during an epileptic fit the only possible defence available to him would be that of insanity under S84 of the Penal Code

• Theory :• 1. What about S80 of the Penal Code?

Nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution

• Non-insane automatism may be pleaded under S80

• Wordings of S80 is wide enough to cover cases involving unconscious acts brought about by non insane automatism

• 2. Can also consider non insane automatism as a defence relating to the actus reus of an offence rather than as part of mens rea – thus the voluntariness of the accused’s conduct should be regarded as an essential constituent of the act which is part of the actus reus

• Therefore once an accused suggests he may have acted automatically the prosecution is left to discharge the ultimate burden

• When non insane automatism is treated in this manner it raises the contention that the prosecution has not proved its case

• It is therefore not a defence which the accused himself has to prove

• Which theory is better?• If automatism is introduced into the law

under S80 the onus will be on the accused to establish his defence on the balance of probabilities

• If automatism is introduced as a defence relating to the actus reus the onus will remain on the prosecution to establish beyond reasonable doubt that the accused acted and that there was therefore an actus reus

• The 2nd theory more attractive• 1. Wordings of S80 inept to cover all cases

of automatism• 2. Argument that there is no actus reus well

established at common law and not incompatible with Penal Code – nonsense to describe unconscious movements as acts and inconceivable that anyone who caused harm while unconscious be convicted or detained as insane under S84

• If automatism is to be imported into the penal Code must establish precise parameters

• Clear that certain categories of involuntary conduct will give rise to automatism

• But where involuntary conduct is caused by unsoundness of mind only S84 is applicable to the accused

• Defence of automatism should not be available if it was the accused’s own fault that he got himself into the state of automatism

• Criminal law punishes the blameworthy who causes harm – where a person in a blameworthy manner allowed himself to get into a state of automatism and then causes harm it would not be logical to expect any court to accept the technical argument that as the movement was involuntary the accused must be acquitted.

2. Omissions

• Under the Penal Code there is no liability for omissions to act unless the omission is illegal under S43

• A stranger can with impunity watch a small child drown in a shallow pool though he could have saved the child’s life with minimum effort without any risk to himself

• His omission to act is not illegal within S43 thus there is no actus reus of any offence

• Exceptions :• 1. Failure to act which is an offence• Eg S289 of Penal code – if an accused

failed to exercise requisite control over animal in his possession with the result that it killed/hurt a person the accused failure to act would be an illegal omission which could constitute the requisite actus reus

• 2. Failure to act which is prohibited by law

• Many failures to act which are prohibited by law are offences and will fall under category 1 but certain failures to act could be prohibited by law yet not be offences

• Eg – S115 of the Women’s Charter (S’pore) (Cap 353) in S’pore provides that “it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children….either by providing them with such accommodation, clothing, food and education as may be reasonable….” While such a failure to act is prohibited by law, it is not in itself an offence.

• However being prohibited by law it will constitute an illegal omission capable of forming the actus reus of a criminal offence

• 3. Failure to act which furnishes ground for a civil action

• An omission only furnishes ground for civil action and thus criminal liability if the accused is under a duty to act

• Such duty to act may arise in the following circumstances :

• A) special relationship• Om Prakash v State of Punjab AIR

(1961) SC 1782• B) duty voluntarily assumed • R v Instan (1893) 1 QB 450• C) duty assumed by contract• R v Pittwood (1902) 19 TLR 37• D) creating dangerous situation• R v Miller (1983) 2 AC 161