Question Pak Aznil, a rubber tapper sustained injuries after was accidently shot by his hunting partner who

mistook the victim as a wild boar. Pak Aznil, 42, had earlier gone on a hunting trip with another friend, Pak Usup a 63-year-old taxi driver, at a smallholders plot in Kampung Pak Sik Keruak, Pasir Akar in Jerteh on Saturday night. Besut OCPD Superintendent Kamaruddin Mohd Zakaria said that the victim was hiding among some bushes at about 11.30 pm when his friend fired the shot from his shotgun, thinking that it was a boar. Pak Aznil sustained bodily injuries and while Pak Usup later on arrested and is now waiting to be charged.

What must the prosecution prove in order to secure the conviction against Pak Usup?
To secure the conviction against Pak Usup, the prosecution must prove two elements in criminal law which are actus reus and mens rea. Criminal liability is only justifiable if a person commits a prohibited act or causes a forbidden harm and his actions are accompanied by a blameworthy state of mind. Actus Non Facit Resum Nisi Mens Sit Rea means, an act does not make a person legally guilty unless his mind is legally blameworthy. Criminal liability is only imposed if there is a coincidence of actus reus and mens rea. Actus reus is the conduct or action of the accused which produces or constitutes the forbidden harm, for instance firing arm and killing the victim. It also can be seen in the form of illegal omission, something which is not done or negative act. Section 32 of (what act) stipulates that acts done also cover illegal omission and the conduct must be voluntary. For example, in the case of Gibbons v. proctor, a woman with a man concurrence withheld food to the child causing the child death. They were found guilty of murder the child. While mens rea means, a blameworthy state of mind, for instance intending to kill when fires the gun. In other words, it is the guilty of mind or evil intention or knowledge of the wrongfulness of the act. The offender must be proven to have intentionally been committing the prohibited act as the mind controls the impulse in which it make the body moves to do the illegal act. Therefore, the mens rea and actus reus must be inter-connected. In this case, Pak Usup went for hunting with Pak Aznil. Then, he has fired the shot from his shotgun. The prohibited act of shooting human beings is illegal and therefore, he has fulfilled the first element which is actus reus. The conduct of Pak Usup constitutes the forbidden harm which was firing shot to Pak Aznil and Pak Aznil was killed by such act. The first intention of Pak Usup and Pak Aznil was to hunt the animals. However, while they were hunting, Pak Aznil was accidently shot by Pak Usup who mistook the victim as a wild boar. The act of Pak Usup was voluntary and we can assume that he had the knowledge that killing a person is wrong. Nevertheless, no evidence indicates that Pak Usup has the intention to shoot Pak Aznil as he thought that a moving thing among the bushes was a wild boar. He wished to shoot a wild boar, therefore, he has not fulfilled the second element of criminal law which is mens rea. In conclusion, in order for the prosecution to secure the conviction against Pak Usup, they must prove that Pak Usup have fulfilled both of the element of criminal law which are actus reus and mens rea consistently.

What is the standard of proof and who would bear the burden of proof?
Standard of proof refers to the degree of strength required to discharge the burden of proof. In Miller v. Minister of Pension, Lord Denning held that the proof beyond reasonable doubt need not reach certainty but it must carry a high degree of probability. Burden of proof is the obligation to prove allegation in which are presented in a legal action. When a person is bound to prove the existence or non-existence of any fact, then it is said that the burden of proof lies on that person. According to Section 110 of the Evidence act 1950, whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. Then, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In this case, the standard of proof is beyond reasonable doubt as the judge must be persuaded to his guilty to a level beyond apparently or probably. Proof beyond reasonable doubt is the highest level of proof that law require. This means that, judge must believe that the defendant, which is Pak Usup guilt without significant reservations. Meanwhile, the burden of proof lies on the public prosecutor whereby he has to establish the entire need elements in order to make the judge thinks Pak Usup is guilty. However, if the defendant wishes to claim that his act was done accidentally and therefore not guilty the defendant bears the burden of proving his insanity. In conclusion, the standard of proof is beyond reasonable doubt and the burden of proof is on the public prosecutor which has to prove that Pak Usup has committed the crime.

What would be the probable charge/s that can be raise by the accused in this case?
The main defences in criminal law can be divided into general exception and special exception to criminal liability under the penal code. The burden of prove in establishing both general and special exception as lies on the accused who must establish the defense on the balance of probabilities under section 103 and 105 of the Evidence Act 1950. Chapter IV of the penal code provides for the several general exceptions to criminal liability for a complete defend to a criminal charge. According to section 80 of 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. The accused must also prove that he was not negligent or reckless when the incident happens. This can be illustrating as from the illustration to section 80 Penal Code. It can also be illustrate in the case of Timmappa (1901) 3 Bom LR 678. In this case the victim and the accused were hunting porcupines in the jungle; they took up different position to lie in wait for the game. At nightfall, the accused heard a rustle and believing it was a porcupine, fired a shot into the victims heart and the victim died immediately. He was convicted for murder but on appeal, the conviction was quashed as his defense of accident was successful for his action was unintentional. The first element of accident is the act done without any criminal intention or knowledge. We can see from the question Pak Aznil went for hunting with Pak Usup. The intention was for hunting the animals then, by accidentally Pak Usup thought that there was something moved among the bushes and he shot it. The intention was to shoot the thing that he thought it was a wild boar and no intention to shoot a person, Pak Aznil and he had no knowledge that Pak Aznil was there while he was shooting. The second element is in doing a lawful act, in a lawful manner, by lawful means. Pak Usup went for hunting, it was a lawful act, and done in a lawful manner, by lawful means. The third element is the act done with proper care and caution. He saw there heard and saw a thing was moving among the bushes and he thought it was a wild boar. He believed that he shot a wild boar and not Pak Aznil. Thus, it illustrated that Pak Usup shot with proper care and caution where we can say that he had not shot randomly to the surroundings. So, in this case, the accused which is Pak Usup has fired the shot from his shotgun unintentionally to Pak Aznil as thinking that it was a boar. Therefore, he can raise his defence as the incident happen because of accident as according to section 80 of the Penal Code.

In conclusion, the accused can use the defence of accident as stated in section 80 of Penal Code since all the elements mentioned have been fulfilled.