Insanity (Con!) ‘incapable of knowing — 93 verdict of insanity — 9, 104 Intention. sev Mens rea Intoxication, see Drunkenness Involuntary Acts — 12, 13, Irresistible Impulse — 13 Knowledge — 107 ‘ature of act — 105 wrong — 106, 107 Lawful application of force excessive force — 196 reasonable force — 191 selfedefence and prevention ‘of crime — 185 Legal Impossibility soe Attempts Liability absolute — 55 ‘strict — 55 ‘Manslaughter diminished responsibilty — 114 Mens rea foresight as — 22, soe Foresight guilty knowledge — 21 inadvertence — 32 intention ‘desired consequences — 21 presumption of — 31 recklessness, distinguished — 33 smesning of — 21 mistake, effect of — 70 motive and negligence — 23, 37, ‘gross negligence — 39 proof of — 15, Strict liability and — 55 types of ‘dishonesty ~ 47,48, 49 fraudulently — 47, 52 knowledge -~ 23 negligence — 37 rashness — 32 recklessness — 33 wilfully — 8 uunder the Penal Code — 17 Mercy killing — 170 Inder 29 Mistake ‘bound by law —71 efence, as — 70 of fact — 70, 73 (flaw 70,73 good faith — 70, 72, 73 Ignorance and — 74, 75,76 justified by law — 71 reasonable — 73 steitTablty and — 70 M’Naghten Rules, ee Insanity Motive — 23 Murder iminished responsibility. se Diminished Responsibility ures, ee Duress « Inganty. see Insanity necessity. see Necessity property, defence of se Private Defence provocation se Private Defence Necessity minal intentions — 82 defence as — 79 trawing of lots — 89 Daley and Stephens — 80 good faith — 82 Inyocent life, taking of — 84 prevention of “greater evil” — 83 Negligence ‘sis of erbninal lability — 37 contributory negligence — 46 degrees of — 38, 40 failure to exercise proper care — 37 punishment for — 4, 6, 47 rashness compared with — 35 standard of care in — 43 Now-insane automatism [Nuremberg tials — 215 superior orders — 214 Objective Test attempts, for — 275 resconable man — 39 negligence, — 37 private defence — 191, 283. Prins of Criminal Lily (Spore & Mia) Omissions act, a8 — 7 ‘actus news, a5 element of —7 ‘iil action, furnishing grounds for for criminal Hibilty — 9 itlegal — 10 legal duty to act — 9, 10 positive acts and punishment of — 11 Praysicl impossibility see Atemps Possession st Private defence Private defence ‘commencement of — 201 ‘continuance of — 201 defence of property — 203 “duty to vera” — 168 cxcenive sel defence — 196 proportionality in — 191, o ober recourse — 138 provocation — 201 reasonableness in — 191 restrictions on ight of — 185 scope of ~ 186 self defence — 185 teespasser — 205 Property defence of. se Private defence Proximity test. see tempts Rashness — 32 ‘ecklessness. sor Mens Ret Retribution — 112 Self-Defence. sce Private Defence Sports — 171 Sentencing — 135, 138 Strict Liability ‘enacted words ~ 65 ‘enforcement — 63, 67 (grave socal danger — 58 In respect of regulatory “offence — 58 ‘whether required — 55, 56 presumption of — 56 ‘mistake and — 60, 61 nature of the offence — 65 severity of sanction — 65 social stigma — 65 statutory offences — 55, 58, test of utility — 67, Subjective Test ‘attempts, for — 274 reasonable man — 39 Superior Orders defence of — 214 Unlawful Assembly ‘common objec in —~ 253 ‘essence of offence — 252 ‘consensus of purpose — 252 ‘continuing offence — 255, rere presence — 254 Unsoundness of Mind. see Insanity Voluntary Acts — 12, 13, Voluntary Manslaughter — 200 wilfully — 48Index Abandonment — 264 {intention to commit crime — 264 “Abetment — 234 ‘esis of criminal lability constituent in — 242, tlements of — 234 by ald — 235 by conspiracy — 235 by instigation — 234 substantive offence of — 237 punishments of — 237, 238 Abnormality of mind diminished responsibility detence — 117 Accident ‘burden of proof — 79 defence, as a — 76 proper care and caution — 78 Actus reus tempt — 266 conduct must be willed — 7 Sefinition — 6 fnvoluntary acts — 12 proof of — 5 voluntary — ‘Age of consent — 176, 179 ‘Age of discretion — 87 ‘Agreement ‘conspiracy and — 244 legal aet in — 244, 237, illegal means in — 244 Aiding and abetting {intention to be proved in 236 Assault and battery ‘common law — 167 consent as defence to — 167 ‘Attempts sbandonment in — 254 Attempts (Con) acts of preparation and —259 definition of — 259 equivocality test — 264 impossibility and ineptitude — 272 legal impossibility — 267 preparation and — 259 physical impossibiity — 270 {Intention and — 260 proximity test of — 261 Punishment of — 274 Tationale of — 274 uninterrupted! last act in — 268 ‘Automatiem defence of — 13 Battery, see Assault and battery Bigamy — 19 Children see Infancy Compulsion see Duress Consent ‘age of — 176,179, assault, to — 167 battery, to — 167 ‘corporal punishment — 171 frau, induced by — 169 implica, — 175, invalid, — 168, 170, Timitation of consent — 170 ‘medical procedures — 184 mistake of fact in, — 169 rational of — 183, 185 reality of — 168 reasonable chastisement — 175 sports — 171, 172 BL Princips of Criminal iby (Spore & a) Consent (Cont Duress ‘urge operations — 173 concessions to human sterzation — 173 ‘wenkess — 217 Conspiracy defence of — 206,211 fects res of — 245 ‘murder, deface not avaable — 206 Sgroement — 244 inuminent harm im — 208 cements of — 244 ratize of threats — 207 ‘ners ron of — 245, 246 Superior orders and — 214 object of — 255, prnishment for — 249 Epilepay Fatlonale of — 249 oneessons — 120 Constructive Equivocality test — 264 Joint Criminal Liability — 219 uthanasia ciime consent — 182 clements of —5 cus reus and mens rea — 15 Foesight soe al intention, as element of — 34 ‘Acts Reus; Mens Rea probability — 34, 33 cklessnes, elation to — 93 Death penalty — 128,138 Faaudolently — 47,52 Deliriam temens — 125, 189 insanity defence — 150 ‘Gross Negligence — 39 Deterrence Guilty fm atempts — 275 ‘ut insane — 90 in insanity defence — 111 Diminished Responsibility Ignorance altemative ple to insanity —115 “of law, defence of — 70, 74 sy Bordering om insanity — 119 Inchoate offence — 259 % burden of proof — 117 Attempt defence of murder — 118 Infancy 4% hospital orders — 137 rina liability of — 86 inresatbe impulse — 121 Ciilren under seven — 86 meaning of, children under twelve — 86 borat of mind — 117 Goll ncapax — 86, 87 lesbo, caused by — 125 ratury of understanding — 86 proof of — 131 rischiovous discretion — 87 Dishonestiy — 47,48, 4, 50 Insane delusions — 278 Drunkenness Insan ‘asic intent offences — 157,158 seit — 90 capacity t0 frm intent — 152 contary to law —97 Incspacty to form intent — 135 defence, a3 fawoluntary — 147 burden of proof — 100,101 rowiedge — 162 Aefet of eeason — 91 proposal for reform — 163, 166 disease ofthe mind — 92, 9,100, specie intent — 156 Gruniceness and — 92 voluntary — 148 evidence as 10 — 101 rage — 147 MiNaghten Rules — 69, 100 ‘elatlonship to insanity — 150 responsibilty and — 10827 Criminal La of Malesia and Singapore Pri of ity Of all these defences perhaps the most problematical one is that which relates to the mental disorder or abnormality of the offender. Owing to the adversarial nature of the criminal legal system, an accused's mental abnor ality may either assist in his defence or place him at a distinct disadvantage. Besides mitigating responsibility or punishment, an accused's mental dis order may result in either a partial deprivation of those rights and privileges ‘which mentally sound accused persons are accorded, or a more severe form of punishment than would normally be imposed (sae defences of insanity and diminished responsibility). Numerous conceptual difficulties exist with respect to the insanity defence. While local law is basically the same as that applicable under English law, the English test of insanity is constantly subject to modifications and reformulations. The relation between ‘defect of reason’ and ‘disease of the mind’ remain a matter of controversy even today. The notion of an individual's capacity to know what is morally or legally wrong for purpose of exemption from criminal responsibility has not been consistently interpreted. Whether ‘insane delusions’ fall within the test of legal insanity is still an open question. Does the phrase ‘disease of the mind’ of ‘unsound ress of mind’ encompass psychiatric diagnoses? Should they? Impairment of the cognitive faculty which is the element of the M'Naghten Rules is the basis of the defence of insanity in Singapore and Malaysia. The MNaghten Rules have been severely criticised on psychological grounds. Concerned primarily with defects in cognition, they have been denounced for placing an inordinate value on the intellectual factor while at the same time ignoring the possibility of emotional or volitional impairment. Has the development of a partial defence of diminished responsibility mitigated the effects of an otherwise rigid application of the egal test of insanity? Undoubt- ely, the question of the relationship between insanity and responsibility is, the most confused and unsatisfactory area in the present treatment of the insanity defence. In this context, the ideas which permeated this defence at the time ofits formulation are most inadequate to meet contemporary demands and changes ~ urgent reforms in this area of the law are definitely called for. It's a fortunate fact of life that a person cannot be made liable for criminal thoughts alone but it does not mean that fe can only be made criminally responsible for the completed actus reus of his anti-social conduct. Between these two positions the law has imposed liability for activities by which the inner thoughts of an individual are translated into external conduct. Here we are considering the law of criminal attempts. Anyone who sets out to commit ‘a crime may, fora variety of reasons, fail to complete the commission of that crime. At what point of time or at what stage will such a person be made responsible in law remains a very difficult question indeed. A number of tests have been devised at common law to provide assistance in this regard, such a proximity theory, the equivocality theory and the locus poenitentiae theory. CConelusion 279 Not all these theories are applicable under the Codes in that courts have variously applied them with litle consistency. The judicial attitudes have been that cases can be sufficiently distinguishable from the standpoint of the ogre and immediacy of danger and harm to the public Inthe final analysis, ‘whether a criminal sanction is imposed to an attempt to commit a crime may well involve the question of whether a particular court deems the act in question ‘worthy’ of punishment. While undoubtedly, there is a clear need to review the present law sur- rounding the areas highlighted in the foregoing paragraphs, there are other aspects which are equally in need of radieal change. It is simply not possi- ‘ble within the present structure ofthis book to deal with all the areas as such. So long.as the framework for a functional analysis of the principles of criminal liability has been provided to the reader, this book would have achieved its purpose,276. Principles of Criminal Lit Soe Mi) ‘only those situations in which the defendant has come close to accomplishing his criminal project." ‘This theory is illustrated and accepted in Haughton v Smith. The judges there {elt that conduct which does not amount to a crime could not be converted into a crime simply because it was done with a guilty intention. The House cof Lords is emphatic that the law is concerned primarily not with the accused’s guilty intention and social danger but with his conduct. To repeat the words ‘of Viscount Dilhorne: ‘it is conduct that is normally made punishable as a criminal offence’ In the words of Fletcher: objetiviss tend to draw the line of liability as close as posible to consummma- tion ofthe offense and tend, further, to be sympathetic to claims of impossibility 13s a bor fo lability. whereas Ghubjctivist, in contrast, tend to push back the ‘hreshold of atempting and reject the relevance of impossibility. (2. J Tembi, Impossibte Attempts ~ Another View (1976) 39 MLR 55 a page 67. 68 Rethinking Crimi Lave (978) at page 132 7] CONCLUSION ‘Throughout this book many indications have been given of the need to lar ify, econsider and reform both law and policies governing certain aspects of existing principles of criminal lability as they are presently applied in Singapore and Malaysia. It remains only to bring together and to highlight some of the broader themes and to consider their implications for future development. By and large the principles as discussed in the book possess @ coherent logical structure but like all other human systems the criminal legal process is plagued with anomalies and inconsistencies. What are some of these? Its difficult to define what is criminal or to distinguish a crime by defini- tion from a civil wrong. Why certain acts or omissions are declared criminal and others are not is always a puzzling question. Morality and notions of », blameworthiness based on harm (see Chapter ID, concepts of mens rea and “actus reus may explain the formulation of early criminal lability but these Ado not-necessarily explain the modern ‘welfare-ype’ of crimes and trafic offences created by statute. Today there are numerous statutory offences which are designed to enforce certain standards in the practice of lawful activities where such activities may result in harm to the public. Unlike the traditional common law notions of crime these newer offences generally punish ‘omissions as well as positive acts. You are deemed guilty irespective of your ‘ate of mind (see Chapter II). Conflicting views and theories attempt to explain the rationale underlying such concepis. Ultimately, they confuse rather than clarify While theoreticians and the practitioners alike are agreed that it is both legally and morally right that society must punish individuals convicted of ‘crime, at the same time, it accepts the desirability on public policy grounds to exempt classes of persons who generally or individually lack the capacity to formulate the prescribed mens rea or actus reus of a crime. As such there fore the criminal law recognises various defences which an accused may assert at trial to negative or reduce criminal responsibility.DIA. Pini of Cri Linilty (por Mi) Rationale of Attempts Why are attempts to commit substantive offences punished at all?” Why should punishment be applied to individuals who, by definition, have not ‘caused a specific prohibited harm? An immediate answer to these questions is that the aim or purpose of the crime of attempt must be the same as that of all criminal offences. That is, the concem is to influence behaviour, By providing penalties for attempts to commit crimes, itis hoped to deter members of society from making such attempts and to secure that fewer attempts are ‘made. However, a difficulty immediately presents itself. We may assume that in general people do not attempt to commit crimes unless they wish the attempt to succeed and a substantive crime to be committed. But the law. already provides a deterrent for ‘success, in the form of punishment for the commission of the substantive offence. Such a deterrent is aimed at any one contemplating the commission of a crime, the purpose being to tun him away from doing s0. Why then should there be a second deterrent aimed at the person trying to commit a crime, for exhypothesis he will have ignored the deterrent for the substantive offence by trying to commit it? Actual punishments of an individual who has committed an attempt serves, of course, two purposes. Fist, it gives content to the general deterrent. A. ‘threat loses its force if itis not seen to be carried out when its conditions of operation are satisfied. For this purpose the individual is being used as a ‘means to the end of benefiting the general welfare. Secondly, its purpose is to act as a deterrent to that individual. As Hart puts it ‘The experience of punishment may check him in the future, since it may cause him to attach more weight to the laws threats ‘Traditionally there are two competing theories on why theze should be criminal Liability for an attempt, The ‘substantive’ (subjective utilitarian)” theory claims that the value that should be protected is essentially that ofthe prevention of crime and the protection of an individual's right to bodily and proprietary security. An attempt therefore represents a danger and a threat- ‘ened! infringement of those rights. Gross expresses it thus: Where there is only atempt ability, the conduct itself may usefully be regarded. 1 a second harm order: in itself ts the sort of conduct that normally presents 1 threat of harm and that, by islf, is a violation ofan interest that concerns the 57. Cj the sugostion that we may not neo a gener aw of allen te, Glazebrook, Should we havea Lae of Atempted Cre?” (189) 85 LOR 28. Pinsent and Rens, 0959, HLA Hat, The House of Los on Atempting the Impose in Cre, Proof and Punish ment Essig in Memory of Sie Rupert Cros) 1981, page 17 ss Criminal Attempts 275 lave. The interest is one insecurity from harm and merely presenting a threat of ‘harm violates that security interest. In some case, then, attempt lability will Dbeas extensive as lability forthe completed crime, and may even be greater, for sometimes, even though harm does not occur, the conduct of the accused was ‘more dangerous than in a case in Which harm does occur. In other cases of attempt the conduct is less dangerous and so liability Is Tess extensive Glanville Williams has argued that the law of attempt is dealing with acts by the accused which, by definition, do not constitute an offence, and which ‘may well not be unlawful at all. The reason for the law's concern with at- templs is therefore the criminal intention with which these acts are done, Once there is evidence of a sufficiently firm criminal intention (in the form of a proximate act designed to put the intention into execution), then the law can and should intervene in the interest of crime prevention through indivi- ‘dual deterrence. It follows from this theory that impossibility should never afford a ‘defence’, since an accused whois trying to do the impossible should bbe deterred from trying again with a better prospect of success. Sometimes the theory may be further supported by the moral guilt argument. A person who intends to commit crime and fais, for whatever reason, is just as blame- ‘worthy as the man who intends to commit a crime and succeeds; success or failure is a matter of chance." The argument for conviction rests on the ppremise that the accused, although he knows that legally he ought not to be doing an act (or rather he believes it to be the case) he is prepared to defy the law to pursue his ends, He is a dangerous man prepared to break the law when it suits him. If there is no conviction you are in fact saying ~’go and. sin again, bu if you sin more carefully (successfully), we shall be able to deal ‘with you! This subjective approach to attempts produces absurd results in extreme cases. Glanville Williams himself gives the example of an accused who believes that the person he wishes to Kill has changed into the form of ‘a white cat, Ifhe then shoots at a white cat which he believes to be the victim, the theory ought to require conviction for attempted murder ofthe supposed victim! Therefore, Professor Williams qualified his argument by his doctrine of social danger. A person who demonstrated by his act that he was not a Social danger would be acquitted of attempt under this theory. ‘A second theory is the objective theory: Implist in the objective approach is a distate for preventive detention and ‘consequent conviction thatthe law of atempt should be used sparingly to cover ©. A Thory of Crna Jase (1979) at page 125 and page 425. Compare Gross vier with ‘hat of ames Brady, Punishing Aten (1980) 63 The Marist 246 a pages 267-250 God Jn Clason and Keating, Criminal Lng: Text and Melrols (198) at page 854955. 61, Note "Why Do Crna Attempts Fall? A New Defence (1982) 70 Yale} 160 t pages 166- 16,272 Principe of Criminal ihiy (por Mi) misapprehension as to the nature of the goods; it sa pure error of fact. He has every intention of commiting an offence om the facts ashe believes them to be, and if he succeeds in importing the goods or in getting sufficiently close to AI objective, he must be lable for an attempt Fine as the distinction appears to be in these cases it is (nevertheless) one ‘which isin our view vital to make.'® But matters are not that simple. What might be included under the headings of legal impossibility and factual ~ impossibility may be of mixed law and fact and the law on this aspect séems very unclear. What happens if the impossibility is partly legal and partly factual, The local case of Mundh is one such example (see earlier discussion). Impossibility Through Inepititude What is the applicable law where there is an imposibility situation through ineptitude, inefficiency or insufficiency of means or implements? A is caught ‘tying to open the night safe at a bank using only a screwdriver. It is quite clear that he will not break into the bank with such an implement. Had the screwdriver been the adequate means he thought is was, he would have committed an offence. His act was therefore an attempted theft. As with other inchoate offences, in attempts the law looks for overt acts which not only exhibit the guilty intent of the accused but also show that he has taken steps to-ffectuate his intention. Hence, in the case of While® where the accused tried to kill his mother with poison but used an insufficient quantity for the pur- poses, he was convicted for attempted murder. The accused was rendered liable in another case of Fuance.” The accused was convicted of attempting, to drive with a blood alcohol concentration which went above the prescribed. limit set out in section 6(1) of the English Road Traffic Act, 1972. The clutch of his car had burnt out; s0 he could not drive it. The Court of Appeal upheld Iki conviction reasoning that a burnt out clutch was only ‘an impediment’ to the commission of the full erime very much akin to that of the inadequate burglars tool or the poisoner's insuificient dose. This was the decision in Haughton v Smith too. A similar position would prevail under the Penal Code. By virtue of section 511 the accused has fulfilled both the requirements under this provision viz. he has attempted to commit an offence punishable under the Code or by any other written law and that there must be ‘an act towards the ‘commission of the offence.” Scope of section 511 vs, section 307 What is the exact scope of section 511? Is it wide enough to include all kinds of attempts punishable under the Code including attempts to murder, 8. Aloe, noe 47 0. (10) 2 KB 126 5. (97) 67 Ce App R136, Criminal Attompls 273 specifically provided in section 307or whether these sections are exclusive ‘of each other? There are conflicting and diverse opinions emanating from dif- ferent High Courts in India on this point. ‘According to the Allahabad High Court, section 511 does not apply to attempts to commit murder which are fully and exclusively provided for by section 307." Straight J decided that under no circumstances could an attempt tocommit murder come under section 511, He felt that the words, ‘under such circumstances’ merely meant that the act must be done in such a way and with such ingredients that if it succeeded, and death was caused by it, the legal result would be murder according to sections 299 and 300. ‘The, Bombay High Court has however, held otherwise in Rv Cassidy ‘which decision has been doubted in the later case of Vasudeo Balwant Gogte ‘y Emperor.® The former Chief Justice of the Punjab had laid down that this section was in terms much wider than section 307: fwan Das. Raju, a textbook writer on the other hand, is of the view that section 307 is exhaustive and not narrower than section 511, so far as attempts to commit murder are concemed. But section 511 applies to attempt to commit offences, and also to attempt to cause an offence to be committed. And Mayne's view is that cases not covered by section 307 will be covered by section 511 as held {in Cassidy's case, Finally, Shri Ratan and Gour are of the view that there is a clear distinction between section 307 and section 511 of the Code. (whatever the law may be in India the situation seems fairly clear under the local Codes. Section 511 cannot apply to attempts to commit murder since it deals only with offences punishable with imprisonment or fine while section 302 lays down that the only punishment for murder is death ang under section 307 for attempted murder it isa fixed term or imprisonment 52, Section 37: "Whoever dots any at swith=ich intention or owed, and under such eum ‘ances, that if he by that at caused death, he woul be guy of marr, shal be punished ‘with impisonmet of either deseription fr taza which may exten o fen years amd hal ‘kobe ale to fie an If ur sensed to any person by such act the offender shall be Tibi to imprisonment for Le), orto such porshment als hereiabefore mentioned! Rv Nia (1992) 14 All 38, Tulse (189720 A 14, (0867) BHC (Cz. ©) 17, (0582) 34 Bom {Rep 57, (0909) CeLy 1078. gage270. Principles of Criminal Lciy (S'pore 8 M0 the law has treated as being equivalent to factual impossibility and therefore attracting criminal liability under section 511 of the Code read together with the illustrations to that provision. Physical Impossibility What constitutes physical impossibility? Take the usual example: A is a pickpocket. He sneaks up behind B and inserts his hand into B's pocket but it is empty. Is A able for attempting to steal? ‘The English common law position on this aspect of the law of attempts is again expressed in the case of Haughton v Smith confirmed in the decision of DPP v Nock Until Haughton’s case, it had been accepted for the preceding cighty years, following the famous ‘empty pocket’ case of Ring® that the non- existence of the subject matter of a proposed theft provided no defence to a charge of attempted larceny. The judgments in Haughion, however, nati ously asserted that whereas the accused can be guilty of attempting the ‘impossible where the impossibility arises out of the means he has chosen, a conviction for attempt will not le where the accused could not have commit- ted the substantive offence. The substantive offence cannot be completed where particular legal impediments render the offence in question impossible to perform or where, bocause of certain plysical circumstances, the accused's im is thwarted fom the outset and is subsquently impossible of perform- ance. Similarly in Partington v Wiliams the accused took a wallet from @ drawer in her employer's office and looked init intending to steal any money that may be there. twas empty. She was not convicted of an attempt. However, with the passing of the Criminal Attempts Act 1981, the common law rules ‘were abolished in England and it is quite clear from the provisions of the Act that it meant to render such conduct criminal. Jn Anderton v Ryo their Lordships (cbiter) held that such conduct would now amount to attempting, to steal, The accused in the pick-pocket situation has done an act which is, more than merely preparatory to the commission of the offence of theft. Generally impossibility of performance per se does not render the attempt guiltless under the Code either. Under section 511 of the Code: 42, 197812 AUER 65. 42, (1892 17 Cox CC 9; sec ase, Rv Wins [1893] 1 QB 320; Rv Brown (1885) 24 QBD 357, 4, (978) 62 Cr App R 220, 4. See Glanville Willams, “Three Rogues Charter’ (19801 Crim. L263. Criminal atte 271 ‘An attempts. posible, even when the offence attempted cannot be committed ‘= It is possible to attempt to commit an impossible thet, and zo offence against the Code, becouse the thefts stil an offence agains the Code, and may, therefore, be attempted within the meaning of the Code Conventional theory distinguishes legal from factual impossibility. In its simplest form the orthodox rule is that if what the accused intended to do was ro crime, there is legal impossibility and hence no criminal lability. But if ‘what he intended to accomplish was a crime, though in fact its accomplish ‘ment was impossible, there is only factual impossibility, and that does not ‘avoid liability, In both instances itis the mistaken belief of the accused that receives attention. In the case of legal impossibility, it is Reld to make no