Criminal Law 1

Overall
(1)

What is a crime?

All crime is an injury against society. The society as a whole via its
legislatures has presumably made a collective judgment that
certain behaviours are harmful to the societal interest or the
interest of the society.
The characteristic of criminal law:
i) Criminal law carries with it the moral condemnation of all of
society
ii) The state will be responsible for the prosecution of the
perpetrator on behalf of the victim and the society. As such the
criminal cases will be referred as PPv XXX or Regina v XXX or The
State v XXX .
iii) The punishment will be imposed by the state
The criminal law can be divided into:
i) crimes which referred to acts which are wrong by themselves
such as murder, rape and so on
ii) crimes which are prohibited, acts which are wrong because it
was prohibited such as drunk driving, gambling at an illegal place
iii)crimes distinguish from tort-tort involves the concept of fault
and liability but did not carry the social condemnation of criminal
law, such as defamation in tort and criminal defamation in
criminal law.
(2)

Criminal legal system

Criminal legal system would involve a number of agencies such as

the police, the first responder ( accepting a police report, starts
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the investigation, collecting evidence, submitting the

recommendations to the Attorney-General Chambers), the
Attorney General Chambers (prosecuting the accused), the
judiciary-the judges, imposed the judgment and the Ministry of
Home Affairs which is responsible for the prisons under the Prison
Act.
(3)

Theories of punishment (Why we punish?)

The concept of Punishment in Criminal Law must satisfy at least 4

criteria. Any penalty imposed must be:
1.
2.
3.
4.

painful and unpleasant

prescribed by the law
administered intentionally
administered by the state

Here's a brief synopsis of the leading contenders:

Assumes that criminals deserve to be
punished, mostly by long prison terms, as
Retribution
legal revenge for their harm to society. The
(because they
modern "just deserts" approach considers it
deserve itproper to punish because they deserve it
punishment)
and the state has gone to the trouble of
prescribing a punishment for them.
Incapacitation
( to keep
those who do
it away from
us)

Attempts to make it theoretically

impossible, either thru incarceration,
execution, castration, mutilation,
banishment, or other means, for criminals
to prey any further upon society.

Assumes that fearful penalties, mostly

Deterrence(to involving swift restraint, harsh conditions,
stop others and certain guilt, will prevent people from
from doing it, choosing to engage in crime. Specific
to stop or deterrence focuses on individual criminals,
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prevent the
offender from and general deterrence focuses on potential
repeating it in criminals.
the future)
Rehabilitation(
to help them
Emphasizes the possibility of change,
to stop doing mostly involving treatment programs, that
it)
has as an end result the ideal of being able
to convert criminals into noncriminals.

It is also useful to have a range of penalties, and a systematic

way of sentencing similar cases to similar penalties in that range.
Here's the range as it currently exists in most advanced societies:
Death Penalty

hanging

Imprisonment

Physical confinement in a prison,

jail, or other locked-up facility.

Parole

A set of specific rules of conduct

while in the community, and
supervision of compliance with
those rules.

Community Service
Fines

Making the offender perform public

service work.
Economic penalties requiring the
payment of fixed sums of money.

(4)Principle of legality
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(i)

No crime without law- Federal Constitution- Articles 5,

Article 8
(ii) Rule of lenity-ambiguities in the provisions, the
interpretation in favour of the accused must be given
(iii) Protection against retrospective criminal laws and
repeated trials-Federal Constitution-Article 7
(iv) Presumption of innocence
(v) Doctrine of proportionality

Fundamental Principles of Criminal Liabilities

(a) The element of a crime
(i)Actus Reus
(ii) Mens rea
(iii ) Causation
(iv) Concurrence (actus reus and mens rea must concur)
(v) Defences
(vi) Standard of Proof-evidence and criminal procedure
(vii) Evidence-evidence and criminal procedure

The elements of a crime

(a)
Actus Reus (conduct/act)
The concept of Actus Reus (a phrase meaning evil or bad
deed) is derived from an old Latin phrase.
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actus non facit reum

nisi mens sit rea:

<
=
>

an act does not make a person

guilty unless the mind is guilty

It is important to understand the legal definition of

"behaviour." The behaviour covers a positive act and an
omission. Action is always conscious, voluntary, and
purposive behaviour. Act/conduct includes omission-sections
32, 33 of the Penal Code.Voluntary acts-a willed act, an act
done with control, the person knew the nature of the act and
the consequence of his act. Need to ask (1) was there
conduct? (2) if yes, does the conduct include a voluntary
act? The following are not voluntary acts: reflex or
convulsion, bodily movement during unconsciousness or
sleepwalking, movement not the product of the effort or
determination of the actor
(iii)Omission is only criminal if:
The actor was under a legal duty to act:(i)contract;(ii) special
relationship;(iii) creation of the risk which led to the harm; (iv)
furnishes ground for a civil action.Need to ask : (1) was there an
omission? (2) If yes, is there a legal duty to act?
The conduct/ act or omission must result in a harm-section 44
defined injury to denotes any harm whatever illegally caused to
any person, in body, mind, reputation or property.
(1)
Result crime-defined in terms of the prohibited resultsection 299-causing death without intention, section 300murder
(2)Conduct crime-no harmful result is required-section 39A
Dangerous Drugs Act 1952-possession/trafficking

(b)

Mens rea (Mental State)

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The concept of mens rea (a phrase meaning evil or bad mind) is a

well-developed concept, and perhaps the most complex and
confusing concept in criminal law. The best way to understand
mens rea is to realize that it is always invisible. Mens rea means
state of mind as to the consequences of the act. Mens rea=
thought about the harm, understand the result of the act.The
required mens rea is reflected in the specific word used in the
provisions of the statute.
BLAMEWORTHINESS = RESPONSIBILITY + CULPABILITY

It is a guilty mind and can only be infer from the facts of the case.
Mens rea is reflected in the statutory provisions vide specific
word:
(i)

Intention

It is the purpose or design with which the act is done, the

defendant meant to cause the result. He knew the
consequences and wanted that consequences or result to
happen, for example: the accused fired a shot at the victims
forehead. The accused wanted the victim to die; the accused
stabbed the victim 44 times in the abdomen with a cleaver, the
accused wanted the result of such stabbing, i.e. to cause the
victims death.
-section 299 with the intention of causing death, section
300(a) intention of causing death, or 300(b) intention of
causing such bodily injury.
-section 39 defined voluntarily.
(ii) knowingly/knowledge

To know means to have a mental cognition of it. Most of the

time, knowledge refer to the actual knowledge as to the fact. The
accused is aware that his conduct will cause the result. For
example, the accused fired a gun in Bs direction, the accused
was aware that B was in that area, if B was shot, the accused was
aware that it can happened.
-section 202 whoever knowingthat an offence has been
committed, section 299 with the knowledge that.., section
300(d) the person committing the act knows..
(iii) reasons to believe
The yardstick used will be whether based on the facts of the case,
would any reasonable man have reason to believe such fact.
-section 26 defined reasons to believe.
-section 411having reason to believe.., section 413has reason to
believe to be..

(iv)Rashness/reckless
For rashness/reckless, the accused appreciates the risk created
by his conduct, but he persists in his behavior. He consciously
disregards the risk. For example, the accused bombs a car to kill
B, the car was parked at the side of the road. He could see people
walking along the road. When the bomb exploded, he
-section 304A by doing a rashact, section 279 so rash or ,
section 280 ..so rash or..
(v)

negligently

Failure to exercise the proper care which a reasonable man in the

circumstances would have exercised so as not to harm others. For
example, the accused attached a bomb in As car. The bomb went
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off when A was driving it, causing it to collide with other vehicles,
killing and injuring other passengers.
Section 304A by doing any negligent act , section 279 ..or
negligent.., section or negligent...
(vi) fraudulently
The offences which require a fraudulent element cannot be
committed negligently. It must be done with the intention to
fraud. For example, falsifying the content of a document with the
intention to defraud the recipient, it was done fraudulently.
-section 25 defined fraudulently.
-section 206 fraudulently removes.., section 210 fraudulently
obtains..
(vii) dishonestly
The act must be done intentionally; it must result in wrongful loss
and wrongful gain to the parties involved. For example, A took Bs
watch without Bs consent. A had gain wrongfully and caused B to
suffer wrongful loss.
-section 24 defined dishonestly and section 23 defined wrongful
loss and wrongful gain.
-section 209 ..or dishonestly., section 415 (a)..or dishonestly
induces..
(viii) maliciously
The act requires either (i)an actual intention to do the particular
kind of harm that in fact was done or (2)recklessness as to
whether such harm should occur or not.
-section 219 or maliciously makes.., section 210 or maliciously
commits..

(c )Causation
An act of the accused must resulted in the prohibited harm. There
must be a direct link between the act of the accused and the
harm suffered by the victim. Causation is divided into : (i) factual
causation/causes in fact/direct cause; and (ii) legal
causation which include proximity causes, intervening causes,
and superceding causes. The principle of causation is used to
determine whether the accused was liable for the harm suffered
by the victim through his actus reus. This principle is important in
a result crime. The result must be the basis of the crime. For
example, A shot B with a gun in the head, B died. In order to be
liable, A must be shown to have cause Bs death by shooting him
in the head. As actus reus was the actual cause of Bs death.The
accused will not be liable if there was an intervening act which
was independent from his act, which produces a new harm, after
the accuseds act.

(d)Concurrence (Actus reus and mens rea must concur)

The concept of concurrence requires that any act (actus reus)
causing social harm must coincide, or be accompanied, with a
criminal state of mind (mens rea). Both act and intent
must concur in point of time. It's part of a basic formula in
criminal law:
ACT + INTENT + RESULT = CRIME - DEFENSES
There must exist a fusion, a coming together of act and intent.
Normally, the intent comes first in time, leading to the carrying
out of the act. For example, it is not murder to accidently shoot
someone and rejoice afterwards because mens rea follows actus
reus. To be liable for the harm that a person had caused, he must
cause that harm with a guilty mind. Therefore, the actus reus of
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causing the harm and the mens rea for the harm must co-exist at
the same time.
(e)Defences
Both actus reus and mens rea must be present before a crime
was said to have been committed. If the accused was able to
negate either the mens rea or actus reus or both in the
crime, then the accused will not be liable. The accused is not
liable because he has an excuse or he has a justification. This can
be seen when the accused successfully proved any of the
available defences.
(a)

Infancy- sections 82-83

Section 82 provides a complete defence to any criminal liability. A

child who is less than 10 will not be liable for any crime. Section
83 provides that a child who is 10 but less than 12 will only be
liable if it can be shown that he/she has sufficient maturity of
understanding to judge the nature and consequence of his
conduct on that occasion.
(b)

Unsoundness of mind-section 84

Section 84 provides the defence of unsoundness of mind for the

accused. Due to the unsoundness of mind, the accused was
incapable of knowing the nature of his act, or that he is doing
what is either wrong or contrary to law, at the time when he
committed the crime.
(c ) Intoxication-sections 85-86
Intoxication can happen voluntarily or without the accuseds
consent, by a third party. It is important to show that the accused
was intoxicated, causing him to be insane, he did not know that
such act was wrong or did not know what he was doing, at the
time when he committed the crime. If the defence of intoxication
was successfully pleaded, then section 86(2) requires the court to
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consider the state of intoxication in determining whether the

accused had formed a specific intention to commit the crime.
(d)Act done with consent-sections 87-92
As an individual, the Federal Constitution allows him to exercise
autonomy. He has the freedom but subject to the boundaries of
the law. As long as the victim consented to any act, if the act
resulted in harm, it should not be considered as a crime. Section
90 describes the meaning of a valid consent and the person who
can give a valid consent. The other sections deal with the
situations where the act which resulted in harm, will not be a
crime.
(e) Act to which a person is compelled by threats-section 94
The law forgives a person, who had to commit a crime because he
had no choice, due to an immediate threat of instant death to his
life. This defence is not applicable for the offence of murder,
offences in Chapter VI punishable with death and offences in
Chapter VIA.
(g) An act committed in the exercise of a private defence is not an
offence-sections 96-106
Everyone has the right to defend himself, or other person and
property from any another. Again, even though the law recognizes
the right, but it must be exercise within the limitation provided it.
(h) An act done by a person who is bound or justified by law due
to a mistake of fact-sections 76-79
Being human, sometimes, we are open to making mistakes. In
this instant, the mistake that was made must be a mistake of fact
and not law. This is because ignorant of the law is no excuse.
(i) Accident-section 80

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A lawful act, done in a lawful manner, with proper care and

caution if resulted in a crime, will not be considered as an offence.
(j) Necessity-section 81
As a result of some force or circumstances, the accused must
choose between the lesser of the two evils.

Strict liability crimes

Even though for a person to be liable, the actus reus and mens
rea must be proven, there is an exception to this for cases
which fall within the meaning of strict liability crimes. The
prosecution need not prove mens rea for the purpose of
conviction. It requires only actus reus.
Participation
A crime can be committed by an accused or by a group of
accused. If the crime is committed by one person, then he
alone will be liable. But if there are a few persons involved in
the crime, therefore the prosecutor needs to decide whether to
charge all of them for the same offence or different offences.
(a)
(i)
(ii)
(b)
(i)
(ii)

Responsible for the same offence:

common intentions
common object
Responsible for different offences
Abetment
Criminal conspiracy

Attempt
A person can still be liable for a crime even though he failed to
successfully complete that crime. The law punished those who
tried to commit a crime, but failed to do so, for whatever
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reasons. Committing a crime involve a few stages: (i)

intention to commit a crime; (ii) preparation to commit the
crime; (iii) actions toward the commission of the crime; (iv) the
crime is completed. Attempt took place after the preparation
had been completed but before the crime is completed.

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