Culpable Homicide & Exceptions to s300
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Criminal Law 2 (malaysia & singapore)...
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Introduction Culpable Homicide Not Amounting to Murder Exceptions to s300 i. Provocation ii. Exceeding Right of Private Defence iii. Public Servant Exceeding Powers iv. Sudden Fight v. Consent
1
When the accused fulfill the elements of mens rea under s300, he will be guilty of murder. H/e, where there is insufficient evidence to prove the mens rea, the accused may be guilty of i. Culpable homicide not amounting to murder; or ii. Causing death by rash or negligent
2
The accused may also be guilty of culpable homicide not amounting to murder even if there is sufficient evidence to establish the offence of murder BUT the accused is able to bring his act within one of the FIVE exceptions to s300. i.e. provocation, exceeding right of private defence, public servant exceeding powers, sudden fight and consent.
3
The offence of culpable homicide not amounting to murder, punishable under s304, is committed when: i. The special degree of mens rea under s300 sufficient to constitute murder is not established; OR ii. There is sufficient evidence to establish murder under s300 BUT one or more exceptions to s300 apply.
4
It is still necessary to establish the degree of mens rea required under s299 for an act of killing to constitute culpable homicide. i.e. i. intention to cause death; or ii. intention to cause bodily injury which is likely to cause death; or iii. knowledge that such act is likely to cause death
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Pendakwa Raya v Halim bin Din [1999] 3 AMR 3065 PP v Mahfar bin Sairan [2000] 4 MLJ 791 Mohamed Yasin bin Husin v PP [1976] 1MLJ 156
6
Even when there is sufficient evidence to establish murder, the offence may be reduced to an offence of culpable homicide not amounting to murder if any of FIVE exceptions to s300 applies.
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i. ii. iii.
iv. v.
Provocation Exceeding the right of private defence Public servant exceeding his powers Sudden fight Consent
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CHNAM if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by accident. H/e Exception 1 is subject to the following conditions:
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a)
b)
c)
The provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. The provocation is not given by anything done in obedience to the law or by a public servant in the lawful exercise of the powers of such public servant. The provocation is not given by anything done in the lawful exercise of the right of private defence. 10
Chong Teng v PP [1960] MLJ 153 Mohd Sulaiman v PP [1994] 2SLR465
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i. ii. iii. iv. v.
Whether the provocation was grave and sudden; The link between the provocation and the killing; The existence of a cooling period; Proportionality of the retaliation in response to the provocation; AND The application of the reasonable man test.
12
The provocation must be grave and sudden so as to deprive the accused of the power of self control. The act of killing must be done under the impulse of provocation. The fatal blow should be traced to the influenced of passion arising from the provocation.
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“It is for the court to decide in each case having regard to all the relevant circumstances. In order to succeed, the provocation must (a) be grave and sudden; and (b) have by its gravity and suddenness deprived the accused of the power of selfcontrol.”
14
PP v Chian Swee Ong [2006] 3 MLJ 744 PP v Kwan Cin Cheng [1998] 2 SLR 345
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i.e sudden means recent in time Cases: Chong Teng v PP PP v Abdul Razak Dalek “ The word „sudden‟ involves two elements. Firstly the provocation must be unexpected. If an accused plans in advance to reveive a provocation in order to justify the homicide, the provocation cannot be sudden. Secondly, the interval between the provocation and the homicide should be brief…”
16
The provocation can take the form of words, gestures and action. Kuan Ted Fatt v PP Held: provocation in the form of words per se does not constitute grave and sudden provocation.
17
The deceased had allegedly uttered vulgar words insulting the accused‟s parents. Held: abusive and insulting language whether it came in the form of an insult to the accused, his parents or sister cannot justify the deprivation of the life of another human being.
18
Che Omar Mohd Akhir v PP Held: There was no such thing as a gradual and accumulated provocation that amounts to grave and sudden provocation.
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PP v Abdul Razak Dalek PP v Selvaraju Mudaliar a/l Kalliparamal
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A person may by repeated or continuous verbal provocation arouse another to a state of mind when the provocation immediately preceding the act of killing is the last straw that snaps the self-control of the offender.
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Held: The mental background and previous acts of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.
22
Mat Sawi bin Bahodin v PP[1958] MLJ 189 PP v Lasakke [1964] MLJ 56
23
There must be a link between the provocation and killing. The accused must have killed because of loss of self-control resulting from the provocation In most cases of homicides, the provocation usually comes from the victim.
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The position remains undetermined on whether acts of a third party closely identified with the victim may be considered in establishing the defence of provocation.
Cases: Othman Mat v PP PP v Koh Swee Beng
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The offender must have killed while being deprived of self-control caused by the provocation. There must be no cooling period resulting in the loss of efficacy of the provocation. A cooling period between the provocation and the killing will not satisfy the principle of immediacy associated with hot-blooded impulsive killing.
26
Mohamed Yassin v PP [1994] 3 SLR 491 PP v Ahmad Khairul Fa‟ais Mat Dahlan & Ors [2006] 6 CLJ 555
27
The retaliation should be proportionate to the provocation. AG for Ceylon v Kumarasinghege Held: It is impossible to determine whether the provocation was grave without at the same time considering the act which resulted from the provocation, otherwise some quite minor or trivial provocation might be thought to excuse the use of deadly weapon.
28
PP v Ahmad Khairul Fa‟ais Mat Dahlan & Ors N Govindasamy v PP
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An offender accused of killing must satisfy the reasonable man test in order to successfully rely on the exception of provocation. An offender must show that the reasonable man, when subjected to the same provocation as the offender, would: i. have lost his self-control; and ii.retaliate in the same manner
30
Held: to succeed in a defence of grave and sudden provocation, it is necessary in law for the defence to satisfy the court that not only by the act of the deceased that the accused had been deprived of the power of selfcontrol but such acts of provocation would also have deprived a reasonable man of the power of self-control.
31
Held: It is also said that the defence of provocation is a dual one; the alleged provocative conduct must be such as (i) actually causes in the accused, and (ii) might cause in a reasonable man, a sudden and temporary loss of self-control as the result of which he kills the deceased.
32
Exception 2 s300 states: CH is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law, and causes the death of the person against whom he is exercising such right of defence, without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.
33
The proper exercise of self-defence by the accused in causing the death of an offender does not amount to any criminal offence. However, the exercise of such right in excess of the power given by the law, which results in the death of the attacker, if exercised in good faith and under the circumstances stated in the Exception 2 s300 will amount to culpable homicide not amounting to murder. Before Exception 2 can be invoked, the right of private defence must arise. 34
Before Exception 2 can be invoked, the accused must comply with the following conditions: i. The accused must be free from fault in bringing about the encounter; ii. There must be present some impending danger to life or great bodily harm, either real or so apparent as to create honest belief of an existing necessity;
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iii. There must be no safe or reasonable mode of escape by retreat; AND iv. There must be a necessity for taking life.
Note: Exception 2 will not apply where there is no right of private defence arise.
36
Held: The circumstances of the case discloses that no right of private defence, either of person or property, had ever accrued to the appellant. The deceased was unarmed, Exception 2 can have no application.
37
The appellant‟s conviction for murder was reduced to culpable homicide not amounting to murder and punished under s304 PC.
38
The offender must act in good faith, without premeditation and without any intention of doing more harm than is necessary. s52 defines good faith: “ Nothing is said to be done or believed in good faith which is done or believed without due care and attention.”
39
Exception 3 s300; CH is not murder if the offender, being a public servant, or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant, and without ill-will towards the person whose death is caused.
40
i.
ii. iii. iv.
The offender must be a public servant or a person aiding a public servant acting for the advancement of public justice; He exceeded the powers given by the law and had caused death; He acted in good faith believing it was lawful and necessary; AND Without ill-will towards the person he killed.
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s15(2) If such person forcibly resists the endeavour to arrest him or attempt to evade the arrest such (police) officer or other person may use all means necessary to effect the arrest.
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s15(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or life imprisonment.
43
In the process of apprehending a suspected thief who escaped from a running train, a constable hit the fireman of the engine and killed him. Held: Exception 3 s300 covered the case. The constable exceeded the powers given to him by law and caused the death of the fireman by doing an act which, in good faith, he believed to be lawful and necessary for due discharge of his duty.
44
Exception 4 s300: CH is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
45
i. ii. iii.
There must be a sudden fight. There was an absence of premeditation; AND There was no undue advantage taken or any cruel or unusual act.
46
Atma Singh‟s case: “… in order to constitute a fight it is necessary that blows should be exchanged even if they do not find their target.”
Narayan Nair‟s case: The fight must be with the person killed.
47
Held: on the evidence before the Court, it was clear that the fight occurred suddenly…To invoke this exception it is immaterial which party offers the provocation or commits the first assault.
48
PP v Awang Radan bin Awang Bol [2006] 1MLJ 332 Herlina Trisnawati v PP [2008] 1 MLJ 478
49
Exception 4 requires the killing should be without premeditation in the heat of passion in a sudden fight. Premeditation involves an element of preplanning. Evidence of premeditation can be furnished by previous threats, by act of preparation to kill etc, and by the manner in which the killing was committed, e.g. repeated shots, blows etc. 50
The A was convicted of the murder of a woman. The court noted that the A had committed a premeditated assault on the deceased, intending to kill her and that he had brought on to the premises an iron rod with which to achieve his purpose
51
The accused was charged with the murder of a fellow prisoner. Held: There was no premeditation to kill on the part of the accused. In using a piece of glass as a weapon in the fight, the accused did not take undue advantage or act in a cruel or unusual manner. Immediately when the deceased withdrew, the accused did not follow up to attack him with the weapon. As such, Exception 4 can be invoked.
52
The offender must not in the course of the fight taken undue advantage or act in a cruel manner. This is assessed primarily by comparing the method of fighting adopted by the parties.
53
“ It is impossible to say that there was no undue advantage when a man stabs an unarmed person who makes no threatening gestures and merely asks the accused‟s opponent to stop fighting. Then also the fight must be with the person who was killed.”
54
Mohamed Kunjo v PP [1978] 1MLJ 51 Soosay v PP [1993] 3 SLR 272 Mohd Sulaiman v PP Sainal Abidin Mading v PP PP v Norazam
55
Exception 5 s300: CH is not murder when the person whose death is caused, being above the age of 18 yrs, suffers death or takes the risk of death with his own consent. The consent must be voluntary and not based on misconception of fact. It must be unequivocal and not merely an expression of willingness to die as one possible option. 56
A snake charmer told his audience that if they were bitten, he had the necessary antidote. The deceased allowed himself to be bitten and subsequently died. Held: Exception 5 did not apply because the victim‟s consent was based on misconception.
57
The accused had a quarrel with his wife. He was trying to get the wife to go back to her mother‟s house. She refused and stated that she would rather die. Thereupon the accused killed his wife. Held: Exception 5 did not apply as the wife did not unequivocally consent to be killed.
58
A student who had failed his examination for three successive years decided in depression to end his life and informed his wife. Distraught, she asked him to kill her first and then kill himself. Held: The Exception 5 was satisfied. The court rejected the argument of the prosecution that the consent was obtained by the accused pressurizing the deceased with years of future widowhood.
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