UCR 2612

:: CRIMINAL LAW 1::

INTRODUCTION ELEMENTS
OF CRIME

CRIME
How to define???
Blackstone: an act which has been committed or an
omission which threatens the general laws or
encroachment on the general laws that must be fulfilled
towards the society
Clarkson: A body of rules prohibiting certain conduct on
pain of punishment
Osborn: An act or any offence that endangers the
society and all acts or actions that are unlawful and the
person who does the act is responsible to receive the
punishment of fine or punishment

 Crime vs Offence?
MacNaghten J in Honsfield v Brown [1932] QBD: An
offence is an act or an omission which can be punished
under the provisions of the criminal laws
s.40, Penal Code: Except in the Chapter and sections
mentioned in subsections (2) and (3), the word "offence"
denotes a thing made punishable by this Code.
Crime
unlawful act or omission
offence against the
public
punished by the law.
Yeo, Morgan & Chan : the normal components harmful
conduct coupled with a blameworthy or culpable actor

Burden & Standard of proof

Burden - The duty placed upon a party to prove or

disprove a disputed fact.
Sometimes this burden is also called the burden of
persuasion, or the quantum of proof by which the party
with the burden of proof must establish or refute a
disputed factual issue.
In Criminal cases, the burden of proof is placed on the
prosecution it has to prove Beyond Reasonable
Doubt that the defendant is guilty before he is
convicted
Eg. DPP v Woolmington [1935] UKHL 1

 Thus as a general rule the burden of proof is on the

prosecution and it has to:
1. Prove the ingredients of the offence; and
2. Negate or deny the defences raised by the defendant.
If the Burden is on the defendant (eg. when he is
proving defences) then his burden is lower Balance
of Probabilities

Concept of crime
In general, every crime has its own definition. But to
impose liability, a person must have committed a
prohibited act or causes a forbidden harm and his action
is accompanied by a blameworthy state of mind.
Maxim: Actus non facit reum nisi mens sit rea - An act
is does not make a person guilty of crime unless his
mind be also guilty
Hence, to constitute a criminal liability there must exist
two elements:
i. Actus reus
ii. Mens rea
Besides that, there must be a coincidence of the two
elements.

Actus reus
The act or omissions that comprise the physical
elements of a crime as required by statute
Smith & Hogan Criminal Law all the elements in the
definition of the crime except the accuseds mental
element
The accuseds conduct/act must cause or result in
specified consequences result crimes eg. S.300 PC
If the consequences of the accuseds conduct/act is
irrelevant to his liability conduct crimes eg. S. 378,
383 PC

Act
s.33 - The word "act" denotes as well a series of acts as
a single act: the word "omission" denotes as well a
series of omissions as a single omission.
s.32 - In every part of this Code, except where a contrary
intention appears from the context, words which refer to
acts done extend also to illegal omissions.
s.43 - The word "illegal" or "unlawful" is applicable to
everything which is an offence, or which is prohibited by
law, or which furnishes ground for a civil action. And in
respect of the word "illegal", a person is said to be
"legally bound to do" whatever it is illegal in him to omit.

 An act must be voluntary i.e. a physical movement

resulting from an operation of ones will
Thus, if an accused acted on reflex, or one has been
pushed then the accused's conduct does not satisfy the
actus reus requirement.
An involuntary act does not includes acts done by
reason of duress, necessity or coercion as all the
circumstances show that the accused is physically
conscious, willed and rational; but it may include acts
done in a state of automatism the person is not
consciously on control of his own mind and body

Automatism can happen:

Concussion
Hypoglycemia
Somnambulistic
However, in Malaysia, the application of automatism as a
defence is limited

Omission
As a general rule, a failure to act or an omission does
not amount to an actus reus as in most cases crime
happen due to positive acts or conduct of the accused.
However, the actus reus requirement can also be
satisfied by an "omission if it is an illegal omission as
provided under s.43.
Eg: ss.283, 284, 285, 286, 287, 288, 289
Apart from that, if an individual had a duty to act, and
failed to discharge that duty, the individual could be held
criminally liable for the result.

Duty to act
i. A statute requires a person to act in a certain way
ii. A contract requires a person to act in a certain way - R v
Pittwood [1902] 19 TLR 37
iii. Some special status relationship exists that creates a
duty to act in a certain way - R v Gibbins and Proctor
[1918] 13 Cr App R 134 Court of Criminal Appeal. R v
Instan [1893] 1 Q.B 450, Court of Crown.
iv. Voluntary assumption of care creates a duty to act in a
certain way - R v Stone and Dobinson [1977] 1 QB 354
v. The individual created the risk, he or she must act to
prevent harm - R v Miller [1983] 1 All ER 987

Causation
To establish a criminal liability against an accused
especially for result crimes
It is required that not only the accused have acted in a
particular manner but also he have caused the particular
result or consequence.
However, it must also be shown that the act/conduct was
a sufficient cause in law.
Hence, there are 2 approaches:
1. Factual cause = but for
sine qua non
2. Legal cause = imputable
causa causan
Causation will only be established when there is factual
+ legal cause

Factual cause
Factors without which the result would not have occurred
But for causation
Eg: R v White [1910] A intended to poison the mother
but the mother died of a heart attack and not because of
the poison attempted murder

Legal cause
It is narrower and more subjective than factual
causation.
Not every cause in fact is a cause in law.
It must be shown that an act is an operating and
substantial cause of the result in issue.
It is not required that the result happen was due to the
sole act/conduct of the person.
it is not required that the act/conduct is the direct cause
to the result

 Eg: R v Smith [1959] V received bayonet wounds

during a fight and pierced his lung that caused
haemorrhage. A friend carried the V for treatment but
tripped and dropped him twice. On arrival, V was given a
bad treatment. Held: A was liable.

Break in the chain of causation

To break the chain of causation it must be shown that
there is something which disturb the sequence of events
(new cause) and it must be extraneous or extrinsic.
An accused will not be liable to have caused the result if
there was an intervening act (Novus Actus Interveniens)
which is sufficient to break the chain of causation.
However, not all intervening act can break the chain of
causation eg. If the intervening act merely aggravates
the effect of the persons act/conduct it must be shown
that the effect is so overwhelming.

 Types of intervening act:

a. Act of a third party
b. Act of the victim
c. Improper medical treatment
d. Unforeseen natural event

Act of a third party

Such intervention will break the chain of causation if it is
made free, deliberate and informed and provides the
immediate cause of the result.
Eg: R v Pagett the A forcibly used his pregnant
girlfriend as a human shield in a shoot out with the
police. V died from the police shot. A was liable. Police
act was not free, deliberate and informed.
PP v Suryanarayanamurty; Ng Keng Yong v PP

Act of the victim

Victims aggravation or neglect of his injuries cannot
break the chain of causation.
Even if medical treatment is available but for some
reason the victim decides not to take the treatment and
die, the accused can still be liable for the death.
Eg: R v Blaue [1975] the V refused a blood transfusion
on religious ground. A was convicted.
The key principle that need to be considered is that the
victim must be taken as you find him (in mental or
physical condition) Eggshell Skull rule
s.299, Explanation 1

Improper medical treatment

The court is hardly to recognised improper treatment as
an intervening act such failure will only be consider as
aggravating the original injury.
It is due to the fact that it is foreseeable that the injury
may be misdiagnosed or the treatment may be wrongly
performed.
s.299, Explanation 2 - Where death is caused by bodily
injury, the person who causes such bodily injury shall be
deemed to have caused the death, although by resorting
to proper remedies and skilful treatment the death might
have been prevented.

 Ordinary complication resulted from the original injury

will not break the chain of causation eg. Salebhai
Kadarali [1949]
Time gap from the infliction of injury to the death of the
victim will also not be counted D Yohannan v State of
Kerala (1958)
Switching off a life support system after the tests
indicated brain death does not break the chain eg: R v
Malcherek; R V Steel [1981]

 Treatment can only break the chain if it can be proven

that: 1) Unforeseeably bad; and 2) the sole significant
cause of death with which the accused is charged.
Eg: R v Jordan (1956) The A originally convicted for
murder for stabbing the V. However, during appeal, new
evidence was admitted to show that the death of the V
was due to improper administration of antibiotic and
intravenous introduction of wholly abnormal quantities of
liquid which clogged the lungs which caused the Vs
death
Nga Ba Min v Emperor (1935)

Unforeseen natural event

Exceptional natural event or act of God can only breaks
the chain of causation if it is proven that the sole
immediate cause of the result in issue.
Such an event must be of so powerful that the conduct of
the accused was not a cause at all.
If an accused left his V lying unconscious by the edge of
the water and caused the V to be drowned by the tide
rose, the chain is not broken Hallet v R (1969)
In contrast In re Venkatachalam Chetty (1942)