Criminal Defences: Justifications and Excuses

Classification of Defences in Criminal Law

• The Penal Code (PC) categorizes defences into two primary domains: Justification and Excuses.

• Justification: These are acts that under normal circumstances would be crimes but are considered right or acceptable under specific legal conditions.

  • Superior Orders

  • Necessity

  • Consent

  • Private Defence

• Excuses: These are acts that are legally wrong, but the actor is not held blameworthy due to specific mitigating circumstances.

  • Mistake

  • Accident

  • Unsoundness of Mind

  • Intoxication

  • Duress

Private Defence

• Section $96$ of the PC: General Principle

  • "Nothing done in private defence is an offence."

  • Specifically, nothing is an offence which is done in the exercise of the right of private defence.

• Section $97$ of the PC: Scope of the Right

  • Every person has a right (subject to restrictions in Section $99$) to defend:

  • (a) The Body: His own body and the body of any other person against any offence affecting the human body.

  • (b) Property: His own property or the property of any other person, whether movable or immovable, against acts defining theft, robbery, mischief, or criminal trespass, or attempts to commit these acts.

Restrictions on the Right of Private Defence

• Section $99(1)$: No right exists against an act which does not reasonably cause apprehension of death or grievous hurt, if done or attempted by a public servant acting in good faith under color of office, even if the act is not strictly justifiable by law.

• Section $99(2)$: No right exists against an act directed by a public servant acting in good faith under color of office, provided it does not cause apprehension of death or grievous hurt.

• Section $99(3)$: There is no right of private defence in cases where there is time to have recourse to the protection of public authorities.

• Section $99(4)$: The right of private defence in no case extends to inflicting more harm than is necessary for the purpose of defence.

• Explanation $1$: A person is not deprived of the right of private defence against a public servant unless they know or have reason to believe the person is such a public servant.

• Explanation $2$: A person is not deprived of the right against an act done by direction of a public servant unless they know or have reason to believe the direction exists, or the person states their authority or produces written authority upon demand.

Extension of Private Defence to Causing Death

• Section $100$ (Body): The right extends to voluntarily causing death or any other harm to the assailant if the offence is:

  • (a) An assault causing reasonable apprehension of death.

  • (b) An assault causing reasonable apprehension of grievous hurt.

  • (c) An assault with the intent of committing rape.

  • (d) An assault with the intent of gratifying unnatural lust.

  • (e) An assault with the intent of kidnapping or abducting.

  • (f) An assault with the intent of wrongfully confining a person under circumstances where they cannot reach public authorities for release.

• Section $102$ (Commencement and Continuance): The right begins as soon as a reasonable apprehension of danger to the body arises from an attempt or threat, even if the offence has not yet been committed. It continues as long as that apprehension of danger persists.

• Section $103$ (Property): The right extends to causing death (subject to Section $99$) if the offence or attempt is:

  • (a) Robbery.

  • (b) Housebreaking by night.

  • (c) Mischief by fire on a building, tent, or vessel used as a human dwelling or for property custody.

  • (d) Theft, mischief, or house-trespass under circumstances causing reasonable apprehension that death or grievous hurt will result if the right is not exercised.

Judicial Precedents on Private Defence

• PP v Yeo Kim Bok [1971] 1 MLJ 204:

  • The deceased lent money to the accused and aggressively demanded repayment in a coffee shop.

  • The deceased rushed at the accused with a knife.

  • The accused used a wooden ladle to hit the knife away, and both grappled.

  • The accused was pinned under the deceased, who was stronger and better built.

  • The court found there was a reasonable apprehension of danger to life.

• PP v Dato' Balwant Singh [2003] 3 MLJ 395: The court held that reasonable apprehension of danger to life was established.

• PP v Abdul Manap [1956] 22 MLJ 214: The court noted that while one does not "weigh in golden scales" the exact quantum of force, the frame of mind in which the force is applied is critical.

Consent as a Justification

• Section $87$ of the PC: Harm not intended to cause death or grievous hurt is not an offence if done to a person above $18$ years of age who has given express or implied consent to suffer or risk that harm.

  • Illustration: A and Z agree to fence for amusement. A hurts Z while playing fairly. A commits no offence as consent to the risk of harm without foul play was implied.

• Section $88$ of the PC: Acts done in good faith for a person's benefit with consent, even if known to likely cause harm (but not intended to cause death).

  • Illustration: A surgeon performs a dangerous operation on Z for Z's benefit with Z's consent. Even if Z dies, the surgeon (A) has committed no offence if acting in good faith.

• Section $90$ (Invalid Consent): Consent is NOT valid if:

  • (a) Given under fear of injury or misconception of fact.

  • (b) Given by a person who, from unsoundness of mind or intoxication, cannot understand the nature and consequences.

  • (c) Given by a person under $12$ years of age.

• PP v Dr Nadason Kanagalingam [1985] 2 LJ 122:

  • An obstetrician performed an abortion with consent, arguing it was to avoid a pulmonary embolism due to varicose veins.

  • The court rejected the argument as unreasonable, holding abortion is a last resort to save the mother's life. The possibility of embolism was insufficient justification.

Necessity

• Section $81$ of the PC: An act likely to cause harm is not an offence if done without criminal intention, in good faith, and for the purpose of preventing other harm to persons or property.

• PP v Ali bin Umar & Ors [1982] 2 MLJ 51: The accused carried tin ore without customs permission because their boat's rudder broke in international waters and drifted into Malaysian waters. The court allowed the defence of necessity.

• US v Holmes (1842): A case involving an accused throwing $16$ passengers out of a boat to prevent it from sinking.

• R v Dudley & Stephens: Two accused killed and ate a $17$ year old boy in a drifting boat for survival. (Note: Necessity is generally not a defence to murder in common law).

Superior Orders

• General Rule: Defences are allowed if orders are not "manifestly illegal."

• Section $76$ of the PC: Acts done by a person who is, or by reason of a mistake of fact (not law) believes themselves to be, bound by law to do the act.

  • Illustration (a): A soldier fires on a mob by the order of a superior in conformity with law. No offence.

  • Illustration (b): A court officer arrests Z, believing him to be Y after due enquiry. No offence.

• State of West Bengal v Shew Mangal Singh (1981) 4 SCC (Cri) 782: Police on patrol opened fire on orders from the Deputy Commissioner. The High Court held that because the order was justified, the respondents were bound to obey, leading to acquittal.

Mistake of Fact (Excuse)

• Section $76$ and Section $79$ of the PC: Protect acts done in good faith based on a mistake of fact, not a mistake of law.

• Maxim: Ignorantia juris non excusat (Ignorance of the law is no excuse).

• Difference between S $76$ and S $79$:

  • Section $76$: Actor believes they are bound by law.

  • Section $79$: Actor believes they are justified by law.

• Section $52$ (Good Faith): Defined as an act done with "due care and attention." The defendant must show reasonable grounds for their belief.

• Tolson (1889) 232 QBD 168: A woman remarried believing her first husband was dead. She was acquitted of bigamy due to a reasonable mistake of fact.

• DPP v Morgan [1976] AC 182: A husband invited men to have sex with his wife, claiming she would pretend to resist for pleasure. The men were convicted of rape because they did not honestly and reasonably believe she had consented under the circumstances.

Accident

• Section $80$ of the PC: An act is not an offence if done by accident/misfortune, without criminal intent or knowledge, while performing a lawful act in a lawful manner by lawful means, with proper care and caution.

• Tunda v R: During a friendly wrestling match, the deceased fell against a concrete object and died of a skull fracture. Held: Accidental death with no intent to kill.

• Jogeshwar v Emperor, 24 Cri LJ 78: A and B were fighting; A aimed a blow at a woman intervening but hit and killed a child. Held: Guilty, as A was engaged in an unlawful act at the time.

• Kong Poh Ing v Public Prosecutor [1977] 2 MLJ 199: A woman threatened suicide and was struggling with her partner who tried to stop her with a knife. They fell, the knife stabbed him, and he died. Appeal allowed based on accident.

Duress

• Section $94$ of the PC: Acts done by a person compelled by threats which reasonably cause apprehension of instant death.

• Exclusions: The defence of duress does not apply to:

  • Murder.

  • Offences against the State (Chapter VI) punishable with death.

  • Offences in Chapter VIA.

• Mohamed Yusof bin Haji Ahmad v PP [1983] 2 MLJ 167: Established that the accused must reasonably apprehend instant death, and the threat must be such that a reasonable man would also apprehend death.

• AG v Whelan [1993] IEHC 1: A defendant's will must be overpowered by an immediate threat of violence or death that would compel any reasonable person to commit the act.

Unsoundness of Mind

• Section $84$ of the PC: Nothing is an offence if the person, at the time of the act, by reason of unsoundness of mind, is incapable of knowing:

  • 1. The nature of the act.

  • 2. That what they are doing is either wrong or contrary to law.

• McNaghten Rules (1843):

  • Everyone is presumed sane until proven otherwise.

  • To prove insanity: The accused must suffer a defect of reason due to a disease of the mind preventing knowledge of the act's nature or its wrongness.

• PP v Ismail bin Ibrahim [1998] 3 MLJ 243: Accused was found to be schizophrenic after observation in a mental hospital; conviction quashed.

• John a/k Nyumbei v PP [2007] 7 MLJ 206: The court held that disposing of a skull after a killing showed an effort to avoid detection, indicating the accused was not of unsound mind at the crucial time of the offence.

Intoxication

• Section $85(1)$: Generally, intoxication is not a defence.

• Section $85(2)$: Intoxication is a defence if the accused did not know the act was wrong or what they were doing, AND:

  • (a) Intoxication was involuntary (caused without consent by the malicious/negligent act of another).

  • (b) The person was rendered insane (temporarily or otherwise) by the intoxication.

• Section $86$:

  • Established involuntary intoxication leads to acquittal.

  • Intoxication must be considered to determine if the accused formed a specific intent.

  • "Intoxication" includes the effects of narcotics or drugs.

• PP v Teo Heng Chye [1989] 3 MLJ 205: Confirmed that Section $85(2)(a)$ requires the involvement of a third person causing the intoxication.

• Ismail bin UK Abdul Rahman v PP [1974] 2 MLJ 180: A bare statement of being "drunk" without details on quantity or state is insufficient to negate intent.

• DPP v Beard [1920] AC 479: Voluntary drunkenness is not an excuse unless it renders the actor incapable of forming the specific intent required for the crime.

• Francis Anthonysamy v PP [2003] 1 CLJ 831: Accused killed a victim for a human skull to win a lottery; the court found he was not drunk to the extent of being unconscious or incapable of forming intent; conviction upheld.