CH N MURDER.pptx

culpable homicide and murder in criminal law

1. CULPABLE HOMICIDE AND ITS DIFFERENCE WITH OFFENCES OF MURDER IN MALAYSIA (CRITICAL COMMENTARY) NUR ALIA MAISARAH BINTI ABDUL KAMAL (1203144) MUHAMMAD ZUL HIFNI BIN MOHD ZULKIFLI (1203189) MUHAMMAD AIZAD BIN CHE HASSAN (1202946) NURUL HILALIYYAH BINTI MADOSEH @ ABDULLAH (1202187)

2. 01 DEFINITION Time 18:15

3. Section 299 Whoever causes death by doing an act with the intention of causing death , or with the intention of causing such bodily injury as is likely to cause death , or with the knowledge that he is likely by such act to cause death , commits the offence of culpable homicide DEFINITION OF CULPABLE HOMICIDE

4. The words intention and knowledge in s299 clearly show the existence of positive thinking in which the offender realize his act is likely to cause death. The actus reus for culpable homicide is that causing death of a human. If death occurs under any one of the three instances stated above, then it is culpable homicide. Therefore, the intention or knowledge of an offender is important mental element or mens rea for offence of culpable homicide. Motive is immaterial and not required to be proved.

5. the bodily injury intended to be inflicted is sufficient to cause death. the act done with the intention of causing injury as offender knows it will cause the death to another person. the act which the death is done with the intention of causing death. Murder is defined in Section 300 of the Penal Code as: the person committing the act knows that it is imminently dangerous which will cause death. DEFINITION OF MURDER

6. Ahmad shoots Ali with the intention of killing him. Ali dies in consequence, Ahmad commits murder. ILLUSTRATIONS OF SECTION 300 Amir fires a loaded cannon into a crowd of people and kills one of them. Amir is guilty of murder, although he may not have had a plan beforehand to kill any particular individual.

7. INGREDIENTS OF CULPABLE HOMICIDE Section 299 of Penal Code 02

8. An act also includes an omission Omission will amount to culpable homicide if death of a person occurs as a result of omission of the person in “ loco parentis ” Therefore, there will be culpable homicide if death is caused by: Unlawful omission with the intention that such omission causes death; or Unlawful omission with the intention that such omission is likely to cause bodily injury to cause death; or Unlawful omission with knowledge that such omission is likely to cause death Example: A lifeguard duty is to take care of the people who are around the pool but if he neglects to save the person who is drowning in the pool then it is called an illegal omission and he is liable for punishment, and it is an offence under section 299 of Penal Code. Whoever Causes Death Section 46 of the Penal Code The word “death” denotes the death of a human being, unless the contrary appears from the context It is not necessary that a person whose death has been caused must be the very person whom the accused intended. The offence of culpable homicide was committed as soon as any person intended to kill any person. Mens Rea is the primary part to perform an action. Actus Rea is secondary.

9. The existence of an intention at the time an act is performed, which is proved by the action of the accused and the surrounding circumstances of the case. The intention or knowledge must be proved as a matter of fact The law presumes that a person has the intention to cause the death which in normal course of events the act will cause the death Tan Buck Tee V PP [1961] 1 MLJ 176 There was a body with five appalling wounds penetrating to the heart and liver, which must have been caused by violent blows with a heavy sharp instrument like an axe, Then in the absence of anything else whoever inflicted those blows must have intended to kill the person. In the absence of any evidence as to insanity, provocation or self-defence , the only question for the jury to consider was whether they were satisfied beyond reasonable doubt that it was the accused who inflicted the injuries. In such circumstances it would be quite adequate for the Judge merely to tell the jury that murder is the deliberate killing by one human being of another, that is killing with the intention to kill. With The Intention of Causing Death

10. The death must be a direct result of the act and must be clearly connected to that act even if the act does not cause instant death and it must not be too remote The connection between an act and the death is remote when: The occur r ence of some other acts The conection is cut off as a result of some other cause The time period between the death and the act is too far Mer Dhana Sida v State AIR [1985] SC 386 The accused used a stick and delivered some blows against the head of the deceased. The accused harboured the intention and knew that such blows were likely to crack the deceased's skull. It was held that the accused knew well of his action that was likely to cause death to the deceased. Hence, the accused was found guilty of culpable homicide. With The Intention Of Causing Such Bodily Injury As Is Likely To Cause Death

11. The element of knowledge in connotes personal knowledge of the person who commits the act. In determining the knowledge of an accused, there a few conditions need to be considered: What manner was an act being delivered Under normal circumstances would such act cause death Under special surrounding circumstances would such act pose grave danger to a victim State v Mirza Hidayatulah AIR [1979] SC 1525 The accused hit the victim which caused death. In the autopsy report, it was reported that there were only two severe injuries inflicted on the not so important body part of the victim, and the rest of the injuries inflicted were minor. The court held that when the accused hit the victim, he knew that his blows were likely to cause death and therefore the accused had committed an offence that is punishable under para (b) of section 304 of the Penal Code Therefore, in the absence of such intention or knowledge, an act done was only to cause bodily injury With The Knowledge That He Is Likely By Such Act To Cause Death

12. INGREDIENTS OF MURDER Section 300 of Penal Code 03

13. “if the act by which the death is caused is done with the intention of causing death Illustration (a) of s300 Provides that culpable homicide is murder, if an act that causes death is done with an intention to cause death. Intention is subjective element depends on matter of fact and can be fathomed from the behavior and action of the offender. In deciding the question of intention of an accused the court can consider the type of weapon used, the number of blows is delivered, in which part of the body a victim is hurt. GHAZALI BIN MAT GHANI V PP  [1998] 2 MLJ 675 The accused shot the deceased at a close range with a rifle. The cause of death was a fatal shot in the heart. The nature use of a rifle (weapon) showed that the accused had the intention to kill the person.

14. (b) “with the intention of causing such bodily injury as the offender knows to be likely to cause the death” Illustration (b) of s300 The term ‘knows’ indicates that the accused was certain that the injuries he intentionally inflicted on the victim would most likely resulted to death. Example: An accused intentionally caused grievous hurt at the vital and sensitive body part of the victim by using dangerous weapon like axe. He know that vital part will instantly cause death thus it clears that offender intended to kill. T he certainty derived from the accused’s knowledge of the victim’s situation or health condition. For example, A kicked B a few times after having hurt him badly with some violent blows. B then fell and unconscious. A has the knowledge the kicks were likely to cause B’s death as he already weak and fragile but still doing so thus A is guilty for murder.

15. (c) “with the intention of causing bodily injury to a person is sufficient in the ordinary course of nature to cause death ” Illustration (c) of s300 Sufficient means high degree of likelihood of causing death as a result of that act. For example, stab at heart in which if a person intentionally stab there it is ordinary in nature it will cause death. To know whether sufficient or not depends on type of weapon used or which part of the body is injured or both. The stab wound caused by the accused was very severe, it penetrated 8cm deep, cut through the ribs, penetrated the left lung and caused a cut to the anterior of the heart. The court held that the injury was caused with intention, and such injury caused was sufficient in the ordinary course of nature to cause death. PP V VISUVANATHAN [1978] 1 MLJ 159

16. Have you see the truth? Who was...? Where…? (d) “if a person committing the act knows that it is so imminently dangerous that it must in all probability cause death , or such bodily injury as is likely to cause death Illustration (d) of s300 The offenders knowledge must be one at the highest degree and commits such act without any excuse for incurring the risk of causing death or bodily injury. There is no intention needed but have knowledge that his act is dangerous and highly probable to cause death of any body injury. This clause is intended to apply only when there is no intention to cause death or bodily injury.

17. PUNISHMENT 04

18. (a) with imprisonment for a term which may extend to*thirty years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or (b) with imprisonment for a term which may extend to ten years or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. SECTION 304 OF THE PENAL CODE Punishment for culpable homicide not amounting to murder and lowest form of culpable homicide Whoever commits culpable homicide not amounting to murder shall be punished

19. PP V. Bernadito L Alenjandri Jr [2012] The accused was charged under ss. 302 and 324 of the Penal Code for the offences of murdering one Renato S Harder (`the deceased’). The accused reprimanded his wife upon seeing one Aling touching his wife. Subsequently, Aling approached the accused and hit his head. The accused managed to escape and ran back home and headed back to the house with a parang. When he reached the entrance of the house, he was hit at the back of his head by someone and as a result he stumbled. In the course of falling down towards the direction of the deceased who was standing in front of him, the parang which he held in his right hand struck the deceased and fatally injured him. The accused averred that it was not his intention to stab the deceased. The question before the court was whether the accused had raised a reasonable doubt on the charges preferred against him. The court held that based on the facts and the circumstances of the present case, the accused had committed an offence under s. 304(a) of the Code. From the facts that the accused went back to his house and took a parang, it could be easily inferred that he had an intention to cause bodily injury which was sufficient in its ordinary course of nature to cause death and he did in fact cause a death. Punishment for culpable homicide not amounting to murder

20. PUNISHMENT FOR MURDER SECTION 302 “whoever commits murder shall be punished with death” Sainal Abidin bin Mading v PP The prosecution has to prove: The victim is dead The victim is dead as a result of injuries sustained by him The injuries of victim were caused or the result of the accused That in inflicting injury upon the victim, the accused has acted according to the ingredients of murder The burden to proof beyond reasonable doubt rested upon the prosecutor If at the final stage, there exist any reasonable doubt vide the evidence that is tendered either by prosecution or the defence , the accused is to be released and acquitted from the charge. The principle is the prosecution must prove the guilt of an accused

21. EXCEPTIONS OF SECTION 300 05

22. GRAVE AND SUDDEN PROVOCATION THE PROVOCATION IS NOT SOUGHT OR VOLUNTARILY PROVOKED BY THE OFFENDER THE PROVOCATION IS NO GIVEN IN THE LAWFUL EXERCISE OF THE RIGHT OF PRIVATE DEFENCE THE PROVOCATION IS NOT GIVEN BY ANYTHING DONE BY OBEDIENCE OF LAW WHETHER THE PROVOCATION WAS GRAVE AND SUDDEN ENOUGH TO PREVENT FROM AMOUNTING MURDER TOP SECRET

23. THE ELEMENTS OF DEFENCE THE RELATION BETWEEN PROVOCATION AND KILLING The accused has caused death whilst he was deprived of the power of self-control by grave and sudden provocation It is not a defence if the accused can still contain himself If the provocation is self-induced, it falls under proviso (a) of Exception 1

24. THE ELEMENTS OF DEFENCE GRAVE AND SUDDEN PROVOCATION The element of grave and sudden must be prove simultaneously The mental state and condition of the accused at the time of provocation must be taken into consideration It is not necessary that a person will lose self-control as a result of anger or other emotion It must be proved that an act is done under the influence of a feeling that controlled his action. The concept of reasonable man was used in determining this element Must proof not only provocation but also two elements: Provocation must be unexpected The time period between the provocation and the homicide must be proximate in time Whether the accused act spontaneously on the provocation and was deprived of his self-control or the accused had some interval time to cool down and think over his action

25. THE ELEMENTS OF DEFENCE WHILST DEPRIVED OF THE POWER OF SELF-CONTROL The test used: whether a provocation is one that is sufficient to deprive a reasonable man of his self-control. The deprivation of self-control must be continuing in order to enable a person to use this defence . Ghansyam v State [1991] SCC (Cri) 217 The husband returned home in drunken state. The wife is upset and refused to serve the husband dinner and kicked him. She then left home, when she already a distance away from home, the husband ran up and hit her. There is an elapse of reasonable time and distance, hence the accused not entitled to the protection of Exception 1 The act must be done under impulse of provocation. Whether there was time to cool down and for reason to prevail

26. THE ELEMENTS OF DEFENCE Only applicable when the offender caused the death of the person who provoked him If a person runs amok and kills all passerby, will not fall under this exception Section 76: Act done by a person bound, or by mistake of fact believing himself bound, by law Section 80: Accident in doing of a lawful act

27. Proviso 1 Provocation is not sought as an excuse for killing or doing harm An act is done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant Right of private defence Proviso 2 Proviso 3 EXCEPTIONS TO EXCEPTION 1

28. Who was...? Where…? WITHOUT PREMEDITATION AND WITHOUT ANY INTENTION OF DOING MORE HARM THAN IS NECESSARY THE OFFENDER EXERCISE PRIVATE RIGHT IN GOOD FAITH THE OFFENDER EXCEEDED THE RIGHT AND CAUSE DEATH OF THE PERSON EXCEEDED THE RIGHT OF PRIVATE DEFENCE CATEGORIES: AS A COMPLETE DEFENCE AS A PARTIAL DEFENCE 4 CONDITIONS THE ACCUSED MUST BE FREE FROM WRONG FOR CAUSING THE FIGHT EXIST A SITUATION THAT IS ENDAGENRING LIFE NO REASONABLE AND SAFE MEANS TO ESCAPE FROM THREAT NECESSARY TO KILL

29. Only applicable if the right of private defence is exercised to defend the body and property REASONS FAILED TO FULFILL EXCEPTION: Victim initiated the fight, the accused inflicted more harm than it is necessary or he has failed to have recourse to the protection of the public authorities The accused have gone far away from the time frame of reacting in defence ELEMENTS OF DEFENCE ACCUSED EXERCISE HIS RIGHT OF PRIVATE DEFENCE

30. Will be applied: The accused acted in good faith and without any intention of doing more harm than necessary Subjective Test: An accused inflicted more harm than necessary but he does not intend to cause more harm. Gransham Dass v State of Delhi The appellant stabbed the deceased to death when the deceased visit his shop at night to put pressure in the appellant. The appellant was convicted to murder. When the deceased come he was unarmed and there could have been no apprehension that death or grievous hurt could be done to the accused. An accused cannot use this exception when he himself is the aggressor ELEMENTS OF DEFENCE ACCUSED ACTED IN GOOD FAITH

31. BELIEVES TO BE LAWFULL & NECESSARY An accused must prove that he believes his act is lawful and necessary. An act that performed must be done in good faith. Public servant’s act must be moderate and appropriate. Where an act done by the public servant is unlawful, then he cannot use this exception. WITHOUT ILL-WILL UNLAWFUL ACT EXCEEDED POWER GIVEN BY LAW Element of Defence : INSTRUCTION FROM SUPERIOR OFFICER An act is performed due to the instruction of a superior officer to discharge his duty lawfully.

32. SUDDEN FIGHT 1) IT WAS A SUDDEN FIGHT In the case of Hainie bin Hamid v PP [2003], court held that, three elements must be satisfied in order to invoke this exception: Difficult element to prove is the element of fight Chan Kwee Fong v PP, relied on the saying of “it takes two to make a fight” and in the case of Atma Singh, it was held that in determining a fight, there must be an exchange of blows between accused and the deceased. - Evidence of premeditation can be furnished by former grudges or previous threats and expressions of ill-feeling by acts of preparation to kill. - For example, repeated shots or other acts of violence are sufficient evidence of premeditation. 2) NO PREMEDITATION

33. CON SENT 3) NO UNDUE ADVANTAGE OR ACTED IN A CRUEL MANNER Cont’d - If the deceased does not have any weapon, then it is likely that the accused will not be permitted to use this defence if he uses a weapon or dangerous object. Culpable homicide is not a murder when the deceased being above the age of 18 years, suffers death or takes the risk of death with his own consent. Illustration of Exception 5 of Section 300: Ahmad by instigation, voluntarily causes Zarif, a person under eighteen years of age to commit suicide. Here, Zarif was incapable of giving consent to his own death. Ahmad has therefore abetted murder.

34. CULPABLE HOMICIDE MURDER There is some intention but not strong enough as it is evident in Murder.(exceptions) There is a strong intention to cause death as generally there shall be a plan to kill. An intention to cause bodily injury that is likely to cause death An intention to cause bodily injury where the offender knows such injury is sufficient to cause death in ordinary nature. The accused has no intention to kill but he knows such action can cause death but it is not imminently dangerous. The accused has no intention to kill people but instead he knows such action is imminently dangerous to cause death Punishment: (a) May extend to thirty years or fine or both (b) May extend to ten years or fine or both Punishment: Shall be punished with death THE DIFFERENCES

35. There is a very thin line between the Murder and Culpable Homicide. The courts have from time to time taken efforts to differentiate both the offenses and intention is the important factor to determine the actual offense and consequences of both the offenses are the same. The "intention" and "knowledge" of the perpetrator when committing the crime serve as the borders between the two. The Entire case of the Prosecution side can be destroyed by the defense by just proving no intention as the entire case of Prosecution is dependent on the Intention of the Accused. In the end, it all comes down to a person's Mens Rea (guilty intention). If a person intentionally kills another person, that is considered murder; but, if a person never intended to kill someone, they are only guilty of culpable homicide. The offence of culpable homicide and murder are analogous to each other and it is very difficult to understand the distinction between the two. As law can't stay static as it needs to get developed with changing time to cater to the needs of society, the disarray regarding these two ideas should be tended to now, and there is a need for a clear difference between them CRITICAL COMMENTARY

36. If the offence is further determined to be under culpable homicide, there comes the responsibility to determine whether it amounts to murder or not and whether there was any presence of knowledge and intention or both. While theoretically, it is easy to distinguish. However, in real-life scenarios it is not as easy to determine and distinguish them. To ensure justice, the keywords of the relevant sections should be focused on properly. Also in criminal cases, the burden of proof is on the prosecution, and the standard required of them is that they prove the case against the defendant “beyond reasonable doubt”. For a doubt to stand in the way of conviction of guilt it must be a real doubt and a reasonable doubt. If the data leaves the mind of the trial judge in doubt, the decision must be against the party having the burden of persuasion. If the mind of the adjudication tribunal is evenly balanced as to whether or not the accused is guilty, it is its duty to acquit the accused. The fine line of difference between murder and culpable homicide is often confusing while determining the quantum of punishment in case of an offence committed. To ensure fair trial and justice, the difference must be properly comprehended. If the true scope, meaning and applicability cannot be comprehended by the Court minutely in case of an offence, it may fail to ensure justice. CRITICAL COMMENTARY