LIA2003 CRIMINAL LAW I (T)

The criminal law requires coincidence of actus reus and mens rea before
the accused is liable of any offense. Discuss the principles.

Nurul Syahirah bt Toni Kamarul Zaman LIA170153

Nurkhairina Azhar LIA160110

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Presentation Outline
• Introduction ( Definition, Significance)
• The approaches adopted by the courts
• The same transaction approach
• Critics
• The causation approach
• Critics
• Underlying issue beneath concurrence
• Conclusion
• Reference
• Q&A session

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Introduction
• What is concurrence? How concurrence/coincidence is from causation?

Actus Reus Mens Rea Harm Offense

Causation concerns on whether

the conduct of the accused will
Concurrence result to the prescribed harm
requires that the (culpable homicide results to
physical elements death)
and the element of
fault (guilty mind)
to be coincide.
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Significance
• The accused cannot be blame of him possessing the guilty mind
alone.
• So, what? What does the impact of coincidence got to do with the
accused? Consider this scenario:

A has intention to cause hurt voluntarily to B, but before he

wants to hit B, he does so accidentally. Can he be charged
under voluntarily to cause hurt while during the conduct of
A, the intention does not coincide? Hint: Unjust result.

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Approaches- The same transaction approach
• The court will construe whole events or wrongful physical element
made by the accused as a transaction. Nevertheless there are
separates act made by the accused without either elements, if the
prescribed harm occurred within the transaction, the accused will be
liable.
• Thabo Meli- Contention that the former act of hitting the V have
murderous intent, yet it does not cause death. However, the latter
transaction, aiming to fake the death like accident (not the intention
to murder) However, the court held:

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Thabo Meli
“It appears to their Lordships impossible to divide up what was really one series
of acts in this way. There is no doubt that the accused set out to do all these
acts in order to achieve their plan, and as parts of their plan; and it is much too
refined a ground of judgment to say that, because they were under a
misapprehension at one stage and thought that their guilty purpose had been
achieved before, in fact, it was achieved, therefore they are to escape the
penalties of the law…. and they are of opinion that by both laws there can be no
separation such as that for which the accused contend. Their crime is not
reduced from murder to a lesser crime merely because the accused were under
some misapprehension for a time during the completion of their criminal plot.”

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Elements prescribed in Thabo Meli
1. There is preconceived guilty purpose to be combined
2. The result is similar with the guilty purpose, the result may be
imputable, not necessarily to be factual (Aligned).
3. The conduct must be made by the similar parties in the transaction.

Case adopted: In Re Kaliappa Goundan

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R v Church
• The principle in Thabo Meli is adopted by the court:
• “All that was lacking in the direction given in this case was that, when the
judge turned to consider manslaughter, he did not again tell the jury that they
were entitled (if they thought fit) to regard the conduct of the appellant in
relation to Mrs Nott as constituting throughout a series of acts which
culminated in her death, and that, if that was how they regarded the
appellant's behaviour, it mattered not whether he believed her to be alive or
dead when he threw her in the river. Having regard to the summing-up as a
whole, the difference between what was said to the jury and that which, in
the opinion of this court, should have been said is so minimal that we consider
that no substantial miscarriage of justice resulted.”

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Drawbacks in same transaction approach
• No prescription as to the determine whether or not the act of the
accused causing prescribed harm formed part of same transaction. In
Thabo Meli, it will be easier as there is preconceived plan.
• The approach is not suitable when the series of acts is made in quick
succession.

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Causation approach
• Differ than transaction approach, the court focuses on the causes of
the V’s death, whether from the accused act or not.
• This approach resolves the uncertainty prevailed in former approach
as the court will satisfied as long as the act was done with the
requisite fault element, nevertheless if the accused subsequent act
causes the substantial cause of death.

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Empress v Khandu Valad Bhavani
• It is submitted that the fact that the cause of death of the V is caused
by the burn of the hut, not from the blows from the D, convicting D as
to be guilty of attempt to murder as the D does not have the
murderous intent to burn the hut, but only to conceal his crime.
• The decision was critised by the judges in In Re Kaliappa, with the
view that the transaction approach shall prevail.

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In Re: Palani Goundan vs Unknown
• However, the court uses subjective standard in viewing mens rea of
the accused at the time of the crime itself.

“Causing death' may he paraphrased as putting an end to human life: and thus
all three intentions must be directed either deliberately to putting an end to a
human life or to some act which to the knowledge of the accused is likely to
eventuate in the putting an end to human life. The knowledge must have
reference to the particular circumstances in which the accused is placed. No
doubt if a man outs the head off from a human body, he does an act which he
knows will put an end to life, if it exis's “

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Continuation
“But we think that the intention demanded by the section must stand in some
relation to a person who either is alive, or who is believed by the accused to be
alive. If a man kills another by shooting at what he believes to be a third person
whom he intends to kill, but which is in fact the stump of a tree, it is clear that
he would be guilty of culpable homicide.”

“This is because, though he had no criminal intention towards any human being
actually in existence, he had such an intention towards what he believed to be a
living human being. The conclusion is irresistible that the intention of the
accused must be judged, not in the light of the actual circumstances, but in the
light of what he supposed to be the circumstances.”

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Critics of causation approach
• Uncertainty and confusion with regards to law of causation. This is
because the word such as ‘reasonable’, ‘substantial’ and others is not
clearly steered, but it is driven by the policy. Further, this may be
construed through what is ‘fair’ and ‘just’, which is vague notion.

• The approach may work arbitrary in favour of the accused or not

depending on the particular emphasis of the case. It is submitted that
in Khandu Valad Bhavani, if the court put the emphasis on the
unconsciousness of the V due to D’s conduct, preventing V from
escaping from fire, D may be rendered liable of murder.

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The approach taken in Malaysia
• PP v EDMUND JAMMY NGALI & ANOR

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Underlying issues with regards to the
concurrence.
• The existence of preconceived plan- is it a must?
• No- Thabo Meli, silent whether preconceived plan was essential. The
insistence will draw several drawbacks- difficulty in proving (precise time),
lack of moral merit

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Conclusion
• Generally, actus reus and mens rea should coincide at the time that
the crime was conducted for the accused to be liable of the crime..
However, there are exceptions in which there are subsequent acts in
which can be tackled through transaction approach or causation
approach.

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References
Penal Code (Act 574)
Yeo, S. M. H., Morgan, N. A., & Chan, W. C. (2018). Criminal law in
Malaysia and Singapore. Singapore: LexisNexis.
PP v Edmund Jammy Ngali [1995] 4 MLJ 641
Thabo Meli [1954] 1 All ER 373
Church [1966] 1 QB 59
Khandu Valad Bharani [1981] 15 Bom 194
Pulani Goudan (1919) 42 Mad 547
Kaliappa Goundan LNIND 1933 Mad 165

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Q&A Session

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