INTRO TO CRIMINAL LAW

GENERAL EXEMPTIONS FROM CRIMINAL LIABILITY (DEFENCES)

Faculty of Business Management and Professional Studies

(FBMP)
 Introduction
General Infancy
exceptions Excuses
Unsoundness

Intoxication

Consent
Justifications Mistake
Accident
Necessity
Threat
Private defense
 RIGHTS OF AN
ACCUSED PERSON
DURING TRIAL
• The charge been framed, read and explained to the
accused
• Asked whether to plead guilty or claim for trial
1. PLEAD GUILTY- convicted, recorded = pass sentence
according to law
2. REFUSES TO PG / CLAIM TO BE TRIED = court will
proceed with trial
3. REMAIN SILENT = trial
 GENERAL EXCEPTIONS TO CRIMINAL
LIABILITY

• Contained in Chapter IV of the Penal Code (s.96 – s.106)

• Special exceptions (s.300 of PC = applicable for murder cases, to
reduce conviction from murder to culpable homicide not amounting
to murder)
• Duty/ BOP = lies on the accused to prove the exception on the balance
of probability.
• It can be divided into TWO:
1. EXCUSES
2. JUSTIFICATION
 JUSTIFICATION
• The harm caused by the justified behaviour remains a legally
recognized harm that is to be avoided wherever possible.
• Under special justifying circumstances, harm is outweighed by the
need to avoid an even greater harm or to further a greater societal
interest.
• Do not give the accused the full privilege to act without restriction.
• The conduct of the accused must be ‘necessary’ to protect or
further the interest at stake.
• It also place harm that is ‘proportionate & reasonable’ that may be
used to protect or further the interest at stake.
The PC has provided for some (JUSTIFICATION)
defences under the following provisions:

S.76-79

S.81

S.87-92

S.96- 106
 EXCUSES
• General defences that apply to all type of offences.
• They exculpate eventhough the elements of the offence are
satisfied.
• This type of defences admit that the deed may be wrong, but
excuse the offender or accused because the conditions suggest
that he is not responsible for the deed.
• It reflects the disability and abnormal condition of the accused at
the time of commission of the offence.
• E.g ; insanity, intoxication or duress.
• In this instance, it requires the element of disability to be proved &
such disability caused a particular result.
 The accused’s exculpating mental state must
also relate directly to the conduct constituting
the offence

E.g; at the time of commission of the offence,

the accused was in a state of intoxication. His
action is not excusable because he is
intoxicated, but because of the “effect” of
intoxication that creates an excusable
condition which renders him blameless for his
conduct that constitutes such an offence.
• Excusable conduct/ wrongful action; when =
i. When such action was not the accused’s voluntary effort or determination
ii. Even though sometimes the accused could have acted voluntarily,
nevertheless he does not perceive the pysical nature or the consequences
of his action
iii. Sometimes the accused may accurately perceive and understand the
physical nature, results and physical surrounding, but does not know that
the conduct or its result are wrong or criminal, or
iv. When the accused perceives the conduct accurately, fully understands the
physical consquence and knows its wrongfulness or criminality, but lacks
the ability to control his conduct or action
 The PC has provided for some (EXCUSABLE)
defences under the following provisions:

a) S. 76-79 = MISTAKE OF FACTS

b) S.80 = ....without criminal intent to cause the damage or
criminal offence
c) S.82&83 = underaged / not attained sufficient maturity of
understanding
d) S.84- 86 = unsoundness of mind & intoxication
e) S.94 = duress / under threat
ACCIDENT
 Penal Code

Sec. • Nothing is an offence which is done by

accident or misfortune, and without any
criminal intention or knowledge, in the doing

80 of a lawful act in a lawful manner, by lawful

means, and with proper care and caution.

Total All
acquittal offences
 Elements

Prohibited result Without criminal

– accident or intention or
misfortune knowledge

Lawful act in
Proper care and
lawful manner
caution
by lawful means
 Jageshar v Emperor
• Accused beats a person with his
fists. The latter’s wife interfered.
The accused hit the woman but
blow ‘accidentally’ struck the
baby and two days later the baby
dies as the effect of the blow.

• Held: The act is unlawful act.

The defence of accident failed.
PRIVATE DEFENCE
The law of Persons and property whether of one’s own, or
private
defence is
contained in
sections 96 – Of another within defined limits.
106 of PC
which extends
to:

4 categories: To defend oneself, i.e one’s own life & body

To defend another person, ie that other person’s life & his body

To defend one’s property, i.e one’s property & one’s right to the property

To defend another person’s property, i.e another person’s property & his right to
the property
• The right of PD commences as soon as a reasonable apprehension of
danger to the body arises from an attempt to commit the offence &
continues as long as such apprehension of danger to the body
continues.
• S.100 of PC – the right of PD may extend to the causing of death , in
the following circumstances:
a) Assault ......apprehension of death
b) Assault.......apprehension that grevious hurt will be caused
c) Assault.......Intention of committing rape
d) Assault......Intention of gratifying unnatural lust
e) Assault......Intention of kidnapping/ abducting
f) Assault......Intention of wrongfully confining a person (apprehension
that he will be unable to have recourse to pub authorities for release.
• Otherwise, the right to PD extends only to the causing of harm other than
death.
• No man can be expected to assess with scientific accuracy the precise
amount of force that is necessary to defend himself from an attack, any
retaliation in the exercise of private defence shoud not exceed what is
reasonably necesary to avert the assailant’s attack.
• A man who is about to be attacked does not have to wait for his assailant
to strike the first blow.
• He need not to wait until he is actually attacked or inflicted with injury in
order to react.
• The right of private defence is available only to one who is suddenly
confronted with immediate necessity of averting an impending danger not
of his creation
• Necessity must be present, real & apparent.
• Right of PD = preventive, not punitive or retributive
• As soon as the cause for reasonable apprehension has disappeared and the
threat has been destroyed, there can be no ocassions to exercise the right of
PD
• Whether the right of PD was available to the accused, the entire incident
should be examined with care & viewed in its proper setting
• The injuries received by the accused, the imminant threat to his security, the
injuries caused by the accused and the circumstances whether the accused
had time to recourse to public authorities were all relevant factors to be
considered on a plea of PD
The right of PD is based on few factors:
• In most cases, a member of a general public can
defend himself against any form of attack to his body
or property,
• Where assistance can be obtained, such assistance
must be sought after,
• Where assistance cannot be obtained, a person will
take any action required to protect himself,
• The force used in self defence must be one that is
suitable and comparable to the attack.
Burden of proof = s.96 PC = lies on
accused to prove that his act is
done on basis of PD & that his act
is not an offence under such
circumstances.

Duty of the prosecution? = to

prove the guilt of the accused

Conclusive & convincing evidence

must be tendered to court
• S.98 of PC = right of PD against the act of a person of unsound mind??
• S.99 of PC = limitations & restrictions of rights of PD
a) Act (duty) done/ carried out by public servant / under the direction of
public servant
b) There is time to seek recourse from public authority
c) Inflicting more harm than necessary for the purpose of defence
 • A stabbed a man who was attempting to
forcibly rape the appellant’s wife
• The court acquitted the appelant on the
ground that the appellant acted to defend
Wong Lai •
his wife from being raped
The appellant action is justified as it was
Fatt v PP never suggested that any more force was
used than was necessary to prevent rape
from being carried out
• Therefore, it would be a miscarriage of
justice in the previous conviction
S.103 = when the right of PD of
property extends to causing
death?
• Robbery
• House-breaking at night
• Mischief by fire committed on any
building, tent or vessel – used as a human
dwelling/ place for custody of property
• Cause apprehension of death or grevious
hurt

S.105 : commencement &

continuance of right of PD of
property?
INFANCY
Definition

No mens rea

Pre-defined age
of criminal
liability
 Law
Sec. 82 • Nothing is an offence if done by a child under
10 years old.
PC
Sec. 83 • Nothing is an offence if done by child above
10 and below 12, not yet attain sufficient
maturity of understanding to judge the
PC nature and consequence of his conduct.

Sec. 113 • Boy who is below 13 years old is presumed to

be not capable to conduct rape. It is
EA rebuttable by way of proving his maturity.
 Principle of Doli Incapax

Latin – incapable of evil.

A child is presumed unable

to commit a crime.

Incapable or insufficient
understanding.
 Ulla Mahapatra v The King
• Facts: An 11 year old boy picked up a
knife and advanced towards the
deceased with a threatening gesture,
yelling that he would cut him to bits.
He actually did cut the deceased.

• Held: The child’s entire action can

only lead to one inference, that he did
what intended to do and that he
knew all the time that a blow inflicted
with a knife would effectuate his
intention.
 Abdul Sattar v The Crown
• Facts: Boys below 12 years had prised
open locks on 2 shop premises and
gone inside to commit theft. In one
shop, they stole a bag of pulses.

• Held: The very act of breaking the

locks showed that they were
sufficiently mature to understand the
nature and consequences of their
conduct.
UNSOUNDNESS OF MIND
 Insanity = No MR
Furiosus Furore Suo Runiter

• A mad man is punished by his madness alone.

Furiosus Null Voluntas Est

• A mad man has no will.

Furiosus Absentus Loco Est

• A mad man is like one who is absent (he may be physically

present, but his mind is absent).
 Sec. 84 of the Penal Code
At the time of By reason of
commission of the unsoundness of
crime. mind.

Incapable of
knowing.

Nature of the The act is The act is

act wrong contrary to law
 Ashirudin Ahmad v King
• The app was convicted under s.302
of IPC for the murder of his son. He
dreamt that he had been directed
by someone in Paradise to sacrifice
his son by killing him as his previous
sacrifices had been ‘no good’.

• Held: Appeal allowed. He was

incapable of knowing that his act
was wrong.
INTOXICATION
 THE CONCEPT OF INTOXICATION
• A person cannot be held responsible for a criminal act if he does the act
when he is intoxicated and that such state of intoxication was caused
without his consent.
• However, if a person is in a state of intoxication on his own volition, he
must be responsible for his action.
• It is a complete defence, not merely a mitigating factor
• The scope of application of this defence is limited. HOW?
• “intoxicated” =includes intoxication influenced by alcohol, drugs, toddy,
etc.
• It can be divided into 2 : involuntary & voluntary intoxication
WHEN IT i. At the time of the act complained of he
was in the state of intoxication

CAN BE ii. As a result thereof, he did not know that

such act was wrong or did not know

USED AS
what he was doing
iii. The state of intoxication was caused
without his consent (i.e; malicious act by
A anor – forced to drink, caused by
negligence act of anor – ask for soft

DEFENCE? drinks,instead he was given alcohol

iv. The person charged was by reason of
intoxication = insane temporarily or
S.85&86 otherwise
v. Person charged= has intention to do the
of PC criminal act
 • S.85(2)(a) of the PC = in order to avail
oneself to the defence of intoxication,
he must prove the following:
i. The state of intoxication = caused
without his consent by the malicious
act or negligence of anor, AND
INVOLUNTARY ii. He does not know his act or omission
was wrong, OR
INTOXICATION iii. He does not know what he was doing
• E.g; doctor negligently prescribed a
wrong drugs prescription caused the
accused / alleged offender =
intoxicated
• If the accused = mens rea – guilty, vice
versa
 • Is not defined in the PC, simply involves the
consumption of alcoholic drinks or taking of
drugs for the purpose of inducing the state
of intoxication
• DPP v Beard – the app whilst intoxicated
raped a 13 years old girl and put his hand
over her mouth to stop her from screaming
VOLUNTARY caused her to die from suffocation. The app
= raised defence of intoxication. HELD=
“drunkenness is one thing & the diseases to
INTOXICATION which drunkenness leads are different
things, if a man by drunkenness brings on a
state of disease which causes such degree of
madness, even for a time, would have
relieved him from responsibility...he did not
know that the act was wrong...incapable of
forming the intention required.”
 • S.85(2)(a) of PC – intoxication is a
defence = accused did not know that
the act was wrong or did not know
what he was doing and intoxicated
without his consent
3 DIFFERENT • S.85(2)(b) – accused is by reason of
intoxication rendered insane at the time
LEVELS OF of commission of the offence = special
INTOXICATION acquittal by reason of insanity
• S.86(2) – accused = intoxicated
voluntarily or not, his intoxication is to
be taken into account for the purpose of
determining whether he had formed
any intention – specific or basic intent.
AG for Northen Ireland v Gallagher
• The Respondent was an aggressive psychopath and prone to violent outbursts.
• This was particularly so if he had taken alcohol. He was frequently violent towards his
wife.
• He had spent some time in a mental hospital for which he blamed his wife.
• On his release he went out and brought a bottle of whiskey and a knife. He intended to
use the knife to kill his wife and brought the whiskey as he knew that this would make
him aggressive to the extent that he would be able to kill.
• He drank the whiskey and killed his wife with the knife and a hammer.
• He was convicted of murder and appealed on the ground of insanity. His conviction was
quashed.
• The Attorney General appealed on the ground that the defence of insanity was not open
to him because before taking the drink, when there was no defect in his reason, he had
clearly evinced an intention to kill his wife and any temporary derangement of his reason
at the time of the killing was the result of his own voluntary act in taking the drink.
• HELD = Appeal allowed. The conviction
restored. Where a person forms the
intention to kill and drinks in order to give
themselves Dutch courage, they can not
then rely on their intoxication to
demonstrate they did not have the
necessary mens rea.
DPP v MAJEWSKI
• Majewski (Appellant) and his friend went to a bar after having taken many
different amphetamines and barbiturates.
• While at the bar, Majewski was involved in a fight where he assaulted the
owner of the bar, another customer, and a police constable.
• At trial, Majewski attempted to raise the defense of intoxication, stating
that the drugs and alcohol kept him from knowing what he was doing.
• The court did not allow the defense, and Majewski was convicted of
assault., he appealed
• HELD = Appeal dismissed. Conviction upheld. The crime was one of basic
intent and therefore his intoxication could not be relied on as a defence.