Culpable Homicide

Penal Code S299 Culpable Homicide Whoever causes death by doing an act with the [1 limb] intention of causing death, or commits the offence nd of culpable homicide. [2 limb] intention of causing such bodily injury as is likely to cause death, or rd [3 limb] knowledge that he is likely by such act to cause death, Explanation 1.A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2. Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.The causing of the death of a child in the mothers womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. S300 Murder Except in the cases hereinafter excepted culpable homicide is murder (a) if the act by which the death is caused is done with the intention of causing death; (b) if it is done with the intention of causing such bodily as the offender knows to be likely to injury cause the death of the person to whom the harm is caused; (c) if it is done with the intention of causing bodily injury to and the bodily injury intended to be any person, inflicted is sufficient in the ordinary course of nature to cause death; or (d) if the person committing death, or and commits such act without any the act knows that it is so excuse for incurring the risk of imminently dangerous that it such bodily injury as is likely causing death, or such injury as must in all probability cause aforesaid. to cause death,
st

Exception 1. CH is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident Exception 2.Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law, and causes the death of the person against whom he is exercising such right of defence, without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration [Deleted by Act 51 of 2007] Exception 3.Culpable homicide is not murder if the offender, being a public servant, or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant, and without ill-will towards the person whose death is caused. Exception 4.Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner. ExplanationIt is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5.Culpable homicide is not murder when the person whose death is caused, being above the age of 18 years, suffers death or takes the risk of death with his own consent. Illustration A, by instigation, voluntarily causes Z, a person under 18 years of age, to commit suicide. Here, on account of Zs youth, he was incapable of giving consent to his own death. A has therefore abetted murder. Exception 6.Culpable homicide is not murder if the offender being a woman voluntarily causes the death of her child being a child under the age of 12 months, and at the time of the offence the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child. Exception 7.Culpable homicide is not murder if the offender was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in causing the death or being a party to causing the death.

State of Andhra Pradesh v Rayavarau Punnayya & Anor [AIR 1977 SC 45] 1. 2. 3. Whether accused has done an act by doing of which he has caused the death of another Whether that act amounts to culpable homicide as defined in s299; and if prima facie proven Whether the facts proven by the prosecution bring the case within the ambit of any of the four clauses in s300

Elements of Culpable Homicide

Actus Reus
Voluntary act that caused death Voluntary act that caused death or caused an injury

Mens Rea
Intention

Murder
s300(a) Intention of causing death s300(b) Intention of causing such bodily injury as the offender knows to be likely to cause the death

CHNATM
s299 (1) Intention of causing death s299 (2) Intention of causing such bodily injury as is likely to cause death s299 (3) Knowledge that he is likely by such act to cause death s299 (2) Intention of causing such bodily injury as is likely to cause death

Voluntary act that caused particular bodily injury sufficient in Voluntary act that caused death or bodily injury likely to cause death Knowledge

s300(c) Intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death s300(d) Knowledge that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death Without any excuse for incurring the risk of causing death, or such injury as aforesaid.

s299 (3) Knowledge that he is likely by such act to cause death

Murder
300a 1. (Subjective) Intention of causing death 300b 1. (Subjective) Intention of causing such bodily injury; 2. (Subjective) knowledge that death is likely. 300c 1. (Subjective) Intention to cause bodily injury; 2. (Objective) Sufficient in ordinary cause of nature to cause death. 300d 1. (Subjective) Knowledge that act must in all probability cause death or a bodily injury 2. (Subjective) Knowledge likely to cause death

CHNATM
299 (1) 1. (Subjective) intention of causing death 299 (2) 1. (Subjective) Intention to do act 2. (Objective) Act is likely to cause death 299 (3) 1. (Subjective) Knowledge that death is likely 299 (2) 1. (Subjective) Intention to do act; 2. (Objective) Likely to cause death.

299 (3) 1. (Subjective) Knowledge that death is likely

1.

2.

3.

Why do we have a subjective mental state for CH? a. Objective based fault utilitarianism: no deterrence, pointless to inflict pain and suffering? i.e. insanity b. Negligence utilitarianism in purpose: not recognised by code drafters, subsequently added; ought to know c. i.e. no felony murder rule in SG: MR for felony MR for murder (constructive murder, objective MR) d. Codification less focus objectivity and focus on subjective MR (felony murder, constructive K) What are the degrees and types of fault? a. Types i. Intention ii. Knowledge b. Degree i. Likely ii. Sufficient in the ordinary course of nature iii. In all probability What is the doctrine of transferred intent?

Culpable homicide by causing the death of a person other than the person whose death was intended 301. If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause. Applies even if V does not die. Applies when intended V also dies in the process. o PP v. Mushunooru Surayanarayana Moorty [1912] 13 Cri LJ 145 HELD: Majority rejected the argument that s. 301 only applies where the intended victim does not die and does not apply where the intended victim also dies. While s. 301 seems to cover only situations where the accused intends death or knows death is likely, it does not really matter because s. 299 and s. 300 does not tie intention or knowledge to particular persons. Furthermore, the broad wording of s. 299 or s. 300 supports a broad reading of s. 301.

Cases on the Structure of Murder

Yeo Ah Seng v PP [1967] 1 MLJ 231, Federal Court KL
Held: Rejected Smith doctrine; not true in fact that a man necessarily intends the natural consequences of his acts

Tham Kai Yau v PP 1977 1 MLJ 174

Facts: Accused attacked the victim with choppers, inflicting multiple deep wounds including 2 serious head wounds. Rules: 299(3) and 300(d) difference lies in the degree of risk to human life 299(2) and 300(c) difference lies in the degree of probability 300(b) accused knew particular person is likely to be killed by an injury which would not ordinarily have caused death 299(1) and 300(a) difference lies in that 300(a)s special exceptions will render act to be CHNATM. All 300 cases fall within 299, but not vice versa. st First part of s304 applies to special exceptions cases of s300(a), (b) and (c) [1 limb of 299] nd AND 2 limb of 299 rd Second part of s304 applies to 3 limb of s299

Proving Intention or Knowledge

Intention is NOT premeditation Intention is NOT desire or motive

Subjective test (fish-tank) - Objective facts will lead to an inference for the accuseds state of mind. - Personal characteristics - Acts - Type of weapon - Nature of injuries - Location of injuries - Number of injuries Ismail bin Hussein He saw a man and fire at once on impulse without any conscious or reasoned thought. But however suddenly the intention was formed, the intention was to kill. This amounts to murder. A person may desire to stay at home but yet intend to go to Australia when they board a plane

s300(a) Intention to cause death

300(a) Intention of causing death 299 (1) Intention of causing death

Tham Kai Yau & Ors v PP 1977 1 MLJ 174

Per Raja Azlan Shah FJ: The deliberate use by some men of dangerous weapons at another leads to the irresistible inference that their intention is to cause death. Intention can be found where the weapons used were deadly and the person was struck more than one blow.

Tan Buck Tee v PP 1961 MLJ 176

Held: Intention can be deduced from the 5 substantial incised wounds, 3 in front and 2 behind. 2 had penetrated the heart and one to the liver, damaging both organs. All injuries were found to be capable of being caused by an axe found with stains of blood.

Ismail bin Hussein v PP 1953 MLJ 48 Court of Appeal Malaysia

Facts: Accused and another friend were visiting his padi field when they encountered Omar and Rifin
who were hunting. A shot was suddenly fired, killing Omar immediately and injuring Rifin. Some shots were exchanged without effect. Accused subsequently surrendered and later confessed to a magistrate that he saw a figure and fired at once; then saw the legs only of another man and fired again. Two shots were fired at him and he returned fire to warn the villagers before retreating. Held: Intention constituting murder: Is not necessarily an intention to kill an identified person. Need not be premeditated but can be formed suddenly - an actual intention to kill a human being, though formed on impulse and on suspicion that the person is a terrorist, is in law a murderous intention. Can be inferred from the conduct of the accused and surrounding circumstances

s300(b) Intention of causing bodily injury as the offender knows to be likely to cause death
300(b) Intention of causing such bodily injury as the offender knows to be likely to cause the death 299(2) Intention of causing such bodily injury as is likely to cause death 299 (3) Knowledge that he is likely by such act to cause death

1) There are 2 types of mental states for the offence of s300 (b) subjective intention and subjective knowledge. a. Subjective intention to cause death or bodily injury b. Subjective knowledge that it is likely to cause death nd 2) PP needs to first prove 2 limb of s299, which is the intention to cause such injury that is likely to cause death 3) PP will then seek to prove subjective knowledge that injury was likely to cause death. 4) However, this is usually not used as proving that accused had subjective knowledge that the bodily injury will cause death will usually lead to the irresistible inference that there was intention to cause death, leading to an offence of s300(a) instead. 5) Likely to be invoked in a pin prick murder situation 6) Differentiating the offence of s300 (a) and s300 (b) will depend on how much knowledge the accused had about the victims condition a high level of knowledge will lead to a better inference of intention to cause death. 7) If intention cannot be proven, the accused will be charged under s300(b) if he was sufficiently aware that death was likely 8) Question: What is its place after the abolishment of the mandatory death penalty?

State of Andhra Pradesh v Rayavarapu Punnayya AIR 1977 SC 45, CB 90*

Clarified: S. 299(2) differs from s. 300(b) in that s. 300(b) requires the accused to know of the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding that such harm would not in the ordinary way of nature be sufficient to cause death in a normal health or condition. Intention to cause death is not an essential ingredient of 300(b) Only intention of causing the bodily injury coupled with the offenders knowledge of the likelihood of such injury causing the death of the particular victim.

s300(d) 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
300(d) Knowledge that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death Without any excuse for incurring the risk of causing death, or such injury as aforesaid. 299 (3) Knowledge that he is likely by such act to cause death

1) There are three mental states (pure subjective) a. Subjective knowledge that act is so imminently dangerous that it must in all probability cause death b. Subjective knowledge that the act is so imminently dangerous that it must in all probability cause a bodily injury that offender subjectively knows is likely to cause death c. Presence of excuse rd 2) PP will first prove the 3 limb of s299 subjective knowledge that act is likely to cause death and then elevate it to from likely to in all probability 3) It is distinct from intention 4) Must be imminently dangerous and not merely generally dangerous 5) Subjective knowledge needed bodily injury is subjectively likely to cause death; s299 already requires accused to contemplate death and hence s300d cannot have a lower fault element as that, if not some murder offences would not be CH offences 6) Without excuse is up to the PP to prove beyond reasonable doubt

PP v Mahfar bin Sairan 2000 4 MLJ 791

Facts: The accused drove a car into his wife while he was reversing. Wife died from the injuries received. Eyewitness testified that wife was running after the car as he was reversing and had held onto the wing mirror. The accused maintained that he did not know how his wife was injured and he was unaware that the wife was chasing his car and grabbed the side mirror. Held: 1. 2. 3. 4. Knowledge required may be found if wife was in front or at the rear of the car and not the side. No evidence that accused drove away after knowing that the wife was struck down by the car Otherwise inference that he must have known it was imminently dangerous to drive away in that situation. While accused is expected, as a reasonable person, to contemplate some grievous injuries, it is insufficient for (d), which requires knowledge to be NO LESS that knowledge that his act would in all probability cause.

State of Andhra Pradesh v Rayavarapu Punnayya AIR 1977 SC 45, CB 90*

Held: Knowledge in 300(d) is approximate to a practical certainty, to a highest degree of probability , and without any excuse for incurring the risk.

Tan Cheng Eng William v PP [1970] 2 MLJ 244, CB 119*

Facts: Accused was driving in car when he saw his girlfriend sitting in another mans car. He gave chance, the car touched and he lost control. A motorcyclist in the opposite direction was killed as a result. Held: Accused acquitted. s300(d) is a fully subjective test, and hence, D, on the facts, did not have the knowledge at all. Accused did not know of the consequences There was no traffic between them No harm was caused to the passengers or to the ex-girlfriends car Most adverse inference was to cause harm to passengers of other car ex-girlfriend was in

Emperor v Dhirajia [1940] All ER 647, CB 121*

Facts: The accused, a young mother, was frequently ill-treated by her husband. One night after a quarrel, she slipped out of the house. Heard footsteps and in panic she jumped down the well with her baby in her arms. The baby died and the accused was convicted of murder (but acquitted of attempted suicide). Held: An act done with the knowledge of its consequences only becomes murder when it can be positively affirmed that there was no excuse - She had a fear of her husband and jumped after seeing him coming after her. This was an excuse of panic and fright. Evaluation: Why relevant defences with panic and fright (i.e. necessity) not relied upon? Since excuse requires PP to prove, better to invoke it Submitted that the accused might have satisfied the defence of necessity given that she foresaw greater harm and attempted to avoid or prevent that harm by another harm (jumping into the well) and she acted without criminal necessity

s300(c) Intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death
300(c) Intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death 299 (3) Intention of causing such bodily injury as is likely to cause death

There are 2 mental states: Subjective intention to cause bodily injury to any person Objective appraisal: particular injury sufficient in the ordinary course of nature to cause death (if subjective this will be a narrower test than 300b) i. Without regard to the possible effects of medical intervention It is immaterial if accused had knowledge whether the injury would cause death or not. If he had knowledge, it would be a s300 (b) offence. nd PP must first prove the 2 limb of s299, which would be a subjective intention to cause a bodily injury + objective appraisal of whether injury is likely to cause death PP then proves the higher threshold of probability sufficient in ordinary course vs likely Should the ESSR apply here? Instead of an objective appraisal, should we take into account the particular conditions of the victim? We already have s300 (b) to cater to such offences. Is it unduly harsh? No one has license to go around inflicting injuries! a. b.

2) 3) 4) 5) 6)

State of Andhra Pradesh v Rayavarapu Punnayya AIR 1977 SC 45, CB 90*

Held: Distinction between 299(2) and 300(c) is the difference between likely and sufficient in the ordinary course of nature and is one of degree of probability of death resulting from the intended bodily injury.

The word likely means probable and not a mere possibility Sufficient means most probably.

Virsa Singh v State of Punjab AIR 1958 SC 465 Supreme Court India
Facts: V died of spear thrust by the accused and died 21 hours later from peritonitis caused by the wound. The defence counsel argued that PP had to prove the intention in the first limb of 300(c) must also relate to the second limb, viz, sufficient. It was argued that PP had to establish that the accused intended to cause injury and knew that it was which was sufficient in the ordinary course of nature Held: Argument rejected. 1. PP must first prove objectively that a bodily injury is present 2. The nature of the injury will then be proved 3. Intention to inflict the PARTICULAR injury or that some kind of injury was intended (not needed to go into enquire into every last detail and this enquiry is broad-based; based on commonsense that 12 men good and true could appreciate and understand) otherwise no man with knowledge of anatomy can be convicted for o Whether there was an intention to strike at a vital or dangerous spot o Whether with sufficient force to cause the kind of injury found to have been inflicted 4. It must then be proved that the INJURY OF THE TYPE JUST DESCRIBED ABOVE is sufficient to cause death in the ordinary course of nature The last element is a purely objective inquiry No one has the license to run around inflicting injuries sufficient in the ordinary course nature to cause death Applied in Indian, Msian and SG courts (Mimi Wong v PP, Tan Cheow Bock v PP and PP v Lim Poh Lye)

Q: policy reasons for rejecting fully subjective test: an overly subjective appraisal of sufficient would result in men without knowledge of anatomy to never be convicted under (c) narrower scope; is this convincing? YES. the phrase in the ordinary course of nature cause death suggests the need for medical opinion - it cannot be taken as a commonsensical approach because that would render it pointless, either similar to (a) or (b) It could be setting a very high and unreasonable threshold for requiring the accused to know that the injury he caused was sufficient in the ordinary course of nature cause death

Q: Legal reasons for rejecting fully subjective test: a fully subjective test would render s300(c) superfluous and can be placed by s300(a) or even (b) where int BI +K lkly D; is this convincing? YES. if s300(c) is a fully subjective test, then it would coincide with the requirements under s300(a) subjective intention to cause death, or s300(b) subjective knowledge that the injury caused was likely to cause the death of the accused nd Given that both s300(b) and (c) can be traced to 2 limb of 299 that the accused caused a BI that is likely to cause death, it is more legally consistent for (b) to be subjective and (c)to be objective

Mohamed Yasin bin Hussin v PP 1975-1977 SLR 34

Facts: The accused went to victims hut to burgle it. He grabbed the victim and threw her on the floor and raped her. The victim was a 58 year old Chinese woman weighing 112 pounds. When he finished raping her, he found her dead. The evidence was that the cause of death was cardiac arrest, caused by accused forcibly sitting on the Vs chest during the struggle. The fatal injuries were fractures of the ribs which resulted in the congestion of the lungs Held: Appeal allowed and accused convicted of 304A instead. o

When the Df sat forcibly on the Vs chest to subdue her, he intended to inflict

upon her bodily injury of a kind that was sufficient in the ordinary course of nature to cause death o Did not intend the fractures but only intended to sit o Wouldnt that be intention to cause death?!* But seems also to adopt Virsa Singhs approach: o No need for precise injuries; is a simple and broad based enquiry based on commonsense o Essential for prosecution to prove, at very least, that the appellant intended to sit on the victims chest to inflict upon her some internal injury, as distinct from mere superficial injuries or temporary pain o The PP failed to prove that when the accused sat on the victim to subdue her struggles, he intended to inflict the kind of bodily injury which, as a matter of scientific fact, was sufficiently grave to cause the death of a normal human being of the victims apparent age and build, even though accused may not have had sufficient medical knowledge to be aware that its gravity was such as to make it likely to be fatal. Since PP failed to prove the essential element of intention to cause the particular injury found present (fractures), the claim in 299 and 300 shall fail

Q: what was the basis for the courts to acquit? Failure to prove the intention to cause the particular injury intended Is the particular injury the sitting or the breaking of ribs?

Criticism: objective facts (severe and sustained attack) may suffice to give rise to inference that accused did intend internal as distinct from superficial injuries or temporary pain and intended injuries sufficient to cause death in ordinary course of nature under s300 OR alternatively, inference that accused did intend to cause injury likely in to cause the death of the accused, TIC age sex and size of victim.

PP v Visuvanathan [1978] 1 MLJ 159 (SGHC), CHR 144

Facts: The stab wound inflicted on the victim was very severe - 8 cm deep, cut through the 3 and 4 ribs, penetrated left lung and 2 cm cut to the anterior of the heart. Defence relied on Diplock LJs passage from Yasin. Held: Upheld conviction. Rejected Yasin and affirmed Virsa Singh. If the intention is extended to intention to cause injury sufficient to cause death, then the intention is to kill and 300(c) would be unnecessary as the act would fall under 300(a) and PP does not have to prove this intention. It is irrelevant and totally unnecessary to enquire what kind of injury the accused intended to inflict (THIS IS NOT WHAT VIRSA SINGH SAID) The crucial question is whether the injury found to be present was intended or accidental. Diplock LJs PP must also prove that the accused intended, by doing it, to cause some bodily injury to the victim of a kind which is sufficient in the ordinary course of nature to cause death regarded as dictum and reading Lord Diplocks speech in full, he could not have meant that the sufficiency was also subjective. The accused had used a kitchen knife used for cutting vegetables and inflicted a fatal gaping stab wound below the left clavicle He had used so much force that he wound was 8cm deep and the blade of the knife had cut rd th through the 3 and 4 ribs and left parasternal edge; had penetrated the left lung and produced a 2cm cut on the anterior surface of the heart. Dr. Seah stated that the blow of the knife must have been a violent one
rd th

Tan Cheow Bock v PP [1991] SLR 293, CHR 149

Facts: The accused was charged with murder under 300(c). Medical evidence revealed that the fatal injury was a knife wound in the victims mouth. The accused admitted in his evidence that he went to the victims home to rob her and that he did administer the kn ife wounds but claimed that he did so to stop the deceased from shouting. Accused relied on medical evidence to show fatal injury was very difficult to inflict. Held: Guilty. Appeal dismissed It may well be that the accused did not intend to cause that particular injury in that particular way no need for exact precision? No doubt that he intended to cause serious injury about the face or neck of the deceased o Although the injury was a very difficult one to inflict, and was indeed rare, it is sufficient to note that the great force was used and the knife was stuck in the mouth (refer to Virsa Singh) o (14cm sharp cutting blade thrust with great force into mouth) Re-affirmed Virsa Singh The unusual nature of the fatal injury and the high degree of chance with which it was inflicted should not exclude formation of intention for the particular injury under s300(c); o Otherwise an unusual or unique way of inflicting a wound would exclude the offence of murder

The correct approach is to consider all relevant circumstances whether the accused had intended to cause the injury and that it was not accidental or otherwise unintended.

Tan Joo Cheng v PP [1992] 1 SLR 620, CHR 153

Facts: The accused armed with a knife tried to rob the victims flat. A struggle ensued and the victim resisted. In the course of the struggle, the victim was stabbed in the neck. The defence argued that the accused did not intend to cause any serious injury and that the stab wound occurred accidentally, in the course of the struggle. The court rejected this interpretation of the facts, finding instead that the accused intended to inflict the injury that was actually present. Held: Guilty. Appeal dismissed Dr. Tan, the pathologist, opined that to produce the stab wound found on the victim o A concentration of force would be required which would be greater than that of a person falling on the knife in the course of a struggle. Defence argued: o Wound was only 5-6cm long o Events happened quickly o Death only happened because the knife happened to cut the vein Once it is established that the accused intended to inflict the injury that is found to be present on the victim, the question whether that injury is suf ficient is a purely objective inquiry and reference to the intention of the accused is irrelevant Re-affirmed Virsa Singh: o Per Bose J: The question is not whether the prisoner intended to inflict a serious injury or a trivial one, but whether he intended to inflict the injury that is proved to be present. o Once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. Contentious: Even if an intended to inflict only a relatively minor injury, if the injury that he in fact inflicted pursuant to that intention was an injury sufficient in the ordinary course of nature to cause death, the provisions of cl(c) of s300 would be attracted.

PP v Lim Poh Lye and Anor 2005 SGCA 31

Facts: V was stabbed in the legs while being robbed by Lim and Koh, with Ng. One wound caused the nd Vs death. Ng fled the country. 3 men decided to rob a 2 hand car dealer. They detained victim and forced him to write some cheques. When he struggled, he was beaten and stabbed, apparently to subdue him. Victim suffered 7 stab wounds to his legs. Held: Guilty. Appeal dismissed Dr. Tan, the pathologist, found that the fatal wound was the stab wound of 8-10 cm at the femoral vein. He also found 7 stab wounds on the legs of the victim. o Affirmed Vishvunathans view on Yassin Clarified Virsa Singhs or that some other kind of injury was intended would be an elaboration of the earlier exclusion of an accidental or unintentional injury Clarified Tan Joo Cheng: If the court should at the end of the day find that the accused only intended to cause a particular minor injury, to use the term of the court in Tan Joo Cheng, which injury would not, in the normal course of death, cause death, but in fact caused a different injury sufficient in the ordinary course of nature to cause death, 300(c) would not be attracted. Clarified Tan Cheow Bock: Contentious statement should not be read in isolation. To suggest that what injury the accused intend to inflict is wholly irrelevant is incorrect . The court was simply seeking to convey that it was immaterial whether the accused appreciated the true nature of harm of his act. Reaffirmed that there is no requirement for accused to realize the full gravity of his act. o Dont have to know that he had stabbed the main vein in the thighs What is essential is that the particular injury which eventually caused his death was inflicted intentionally and not accidentally Distinguished Harjinder Singh: That case was not concerned with severance of artery and was concerned whether he intended to cause the particular injuries. o Lim and Ng had intended to stab Vs thigh to prevent him from struggling and escaping. o Was not the case in Harjinder, that case involved a fight as well Opened up possibility of a qualified subjective approach o Accused intended to inflict a serious bodily injury o Accused aware of seriousness of injury o Accused may not have specifically intended to kill but he must have some subjective awareness that the injury was a sort that might kill

Mohammed Ali bin Johari v PP 2008 SGCA 40

Facts: Held: Guilty. Appeal dismissed Motive is not the same as intention but it can in our view cast valuable and significant light on the intention of an accused in appropriate circumstances. It would appear that while motive is not an essential element of the crime, it can bolster the inference that an intention to commit the offence was existent Reaffirmed Virsa Singh nd 1st limb is subjective, 2 limb is objective The appellant had sexually assaulted the deceased o Had motive to cause the death of deceased o While motivate is not intention, it can cast light on the intention of the accused. o This is an instance where accused could have been charged with 300(a) Objective evidence point that he had not received a phone call, and hence could not have forgotten and left victim in the pail Objective evidence show that accused must have immersed victim for a prolonged period of time, that is, he caused deceased to drown o Such an injury is thus sufficient to cause death in the ordinary course of nature Evidence found that victim could not have died of pulmonary oedema o Also would not have died of cardiac arrhythmia as appellant did not mention the symptoms at all Assoc Prof Lau found it unlikely that baby would have died of a natural cause and opined that having heard the appellant, could not think of any other cause except for drowning To raise a doubt in the PPs case is not a mere possibility o No reasonable doubt here Prof Lau found the cause of death likely to be an unnatural one Statements of appellant verified how she was immersed in water until motionless and consistent with Profs Lau finding

PP v Astro bin Jakaria 2010 SGHC 131

Facts: Astro stayed with V and was involved in a scuffle with V, a transvestite and used a t shirt to tie up the V. Astro confessed to being the sole assailant of V, who died due to strangulation by ligature. The ligature was a long sleeved brown-striped T shirt which was applied to the Vs neck in a single loop and was secured by a partial slip note. Extensive fractures to the neck suggested that severe force was applied. Df argued for the (special exceptions) defence of provocation and sudden fight. Held: Virsa Singh is the locus classicus of 300(c) and the PP must prove o Bodily injury was present o Establish objectively the nature of the injury o Prove that there was an intention to inflict that particular body injury o That the type of injury as aforementioned was sufficient in the ordinary course of nature to cause death. First two limbs were satisfied by the pathologists testimony Intention o PP The ligature was tightly constricting and the mark was indented with extensive fractures Df conceded that the accused had intention to apply and tie the ligature on the V. Fatal injury was strangulation of the Vs neck with acute compression and was sufficient in the normal course of nature to cause death PP submitted that the tying was intentional and accuseds inconsistent statements ought to be disregarded and that decision should be made on the objective evidence made and on A/P Laus evidence o Defence V had in the course of struggling killed himself by letting the ligature slip around his neck A/P Lau rejected this argument and said in any case to cause the fracture, a severe force must have been applied Argued that accused only wanted to gag the mouth o Court V was lying face down, and accused was facing the back of V when tying and could not see if it was mouth or neck PP had to prove that the accused had the intention to apply the ligature around the neck; viz the specific intent to tie and apply the ligature around the neck Accused had left his bag behind and used Vs ID card for transactions of pawn

Pawned for 1900 SGD but did not flee Singapore No motive to rob Reasonable doubts not discharged But he must have known that the act of tying the knot at the back of Vs head was likely to cause death, especially since he was lying down (elevated risk) Thus guilty of CHNATM

PP v AFR 2010 SGHC 82

Facts: On the day in question, the accused returned home from shopping with a doll he had bought, intending to give it to his two-year-old daughter for her upcoming birthday. He had been in a good mood until he saw, upon arriving home, his daughter chewing on his cigarettes. He scolded her but when she began to cry he grew stressed and started to hit her. The accused had intended to teach his daughter a lesson but her crying grew louder. In the heat of the moment, his varied and long-standing frustrations overcame him and he lost control of his emotions. His blows became more and more frenzied. His daughter died of a rupture to the inferior vena cava (IVC) suffered as a result of the beating. Held: s299, CHNATM punishable under s304(b) Cause of death was a ruptured IVC and was sufficient in the ordinary course of nature to cause death Pathologist said that the rupture should have occurred during the kicking and stamping There were 55 external injuries and suggested that pinching of the vulva and anus took place Extensive injuries to the cheeks and back were found, along with bruising hat indicated some blunt force going beyond mild force Accused must have known that his acts were likely to cause death, and hence s299 is made out. But no intention to cause death, as he loved her Clarified Yassin: Privy Council took the position that PP there needed to prove that it was within the reasonable contemplation that such injuries (fractures) were the result of his act of sitting on her Seems to introduced requirement of imputing knowledge into the accused person to find intention Intention and Reasonable Contemplation o Visvanathan, Tan Joo Cheng, Tan Cheow Bock and Lim Poh Lye, the accused persons stabbed victims with knives. Tan Chee Wee hammered on head of victim, in Johari there was a repeated pushing of head into the pail of water o Vis heart, Joo neck, Cheow and Lim were very deep. o In the instant case, AFR had used his fist and feet on the deceased and was unlike the previous cases, where consequences of the act (injury would result) would be well within ordinary human knowledge or experience o AFR had rained blows with sufficient intensity to cause haemorrhage in her lung but the cause of death was IVC rupture, which was very rare. IVC had to be caused by a direct penetrative injury, and it would be hard to do such injuries with external force. o Such injuries result from car crash of 30-35 km/h and was unlikely AFR would have reasonably known; even an expert trained in anatomy could not be certain Intention

Disparity in size was not an aggravating factor Motive can bolster the inference and accused loved the V, his natural daughter, and even bought a doll Contrasted with Johari who sexually molested V Contrast with robbery in Lim Poh Lye and Tan Joo Cheng Contrast with fight in Virsa Singh and Visuvanathan AFR was a father who loved V, and was simply too emotional and 12 men good and true would not have found that AFR intended to cause bodily injury.

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Additional Reading: M Sornarajah, The Definition of Murder under the Penal Code *1994+ Singapore Journal of Legal Studies 1
Original intention of drafters concept of intention was not confined to what actor desired or foresaw but includes oblique intention (could have foreseen) Discarding of all objective/constructive doctrine of liability o Purpose of obj theory deterrence o Esp during period of industrialisation largely dangerous with new machines Crime focused (deterrence/retributivism) criminal focused (reformation) Delicate balance in s300 o (a) and (b) subjective o (c) and (d) sub-obj o Tainted with UK law myth that it was based on UK law Mutually exclusive MR S300(a) o Inference from conduct that can be rebutted o Frequent use of certain inference led to rules when it should have been presumptions o i.e. lethal weapon, vital part or together s300(b) o not in original draft and not UK law o intention in relation to awareness of condition of victim o unless accused has K of special condition, unlikely to know it was likely to kill o main gist guilty K of probable consequence o S+S o No local cases S300(c) o Not found in UK law o Intentional BI could be harm for (c) o PP must first prove s299 then s300 o Early days fully subjective o Rejected in Indian Sup Ct: Virsa Singh (S + O) o Special focus on the first S requiring an intention for grievous BI (FEAR OF UNJUST, overly harsh) o Special treatment on the second O consequences must be known from the injury to the ordinary men and not medical experts o I.e. Harijinder Singh injury to thigh severing femoral artery (dismissed: intended thigh injury but not severance of artery) to avoid unnecessary reliance on O by stressing S o Jai Prakash saw limiting factor as injury intended to be inflicted injury sufficient NOT automatically = accused intended injury (must rely on nature, weapon and manner to determine intention) o S + O(S) Singapore s300(c) o O+S o PC case of Yasin: PP failed to prove intention to cause that particular injury (even if he does not K personally) o Unclear- SG relied on PP v Visuvanathan: limited Yasin to facts of the case + gave a broad scope of to O (purely O and not necessary to consider kind of injury accused intended)

o o S300(d) o o o

There is a further requirement: intention to BI must be for the BI inflicted the (S) in O Pure O unsatisfactory since mandatory capital punishment

K foresight of consequence without desire to bring about consequences K = S, therefore without K means not liable Easily imputed with constructive K deterrent reckless person: practically convenient + theoretically jusitifable must be high degree of foresight, S K and NOT inferences from O standard o To show absence of desire no victim chosen see illustration o Desire intention o Ram Prasad although usually reserved for no intention to death of no particular person, may apply to cases of callousness to result and risk taken known to be likely to cause death i.e. setting clothes on fire o O assessment of risk involve imputation of what is ordinary foreseeable onto accused Debate in other jurisdiction o UK included towards O in reckless murder (muddled with felony murder rule) o Australia O principles in reckless murder o Justification for recognising reckless murder disregard for homicidal risk and manifests of an extreme indifference to human life = morally condemned where conduct leads to fatality o US heart regardless of social duty o Since basis of reckless murder found in moral standards difficult to avoid definition found on external standards i.e. standard of conduct so dangerous to human life o Internal mechanism to avoid liability Used in situation of PROBABLE not POSSIBLE S awareness of risk cannot justify liability if accused unable to appreciate risk involve w/o excuse moral or social excuse, or even excuse of human frailty social utility of the act may justify taking of the risk Judicial accretions to code definition of murder o Dangerous weapon doctrine o Vital part doctrine o Cumulative effect very strong inference o Codes inclination towards O in belief that deterrence is a value that justifies such a c ourse

Structure of Homicide Offences

NATURE OF FAULT ELEMENTS Intention to kill s300(a) first limb of s299 Intention to cause injury s300(b), (c) second limb of s299 MURDER Accused intended to cause death CULPABLE HOMICIDE NAM Accused intended to cause death BUT reduced to culpable homicide by operation of special exceptions Accused intended to cause such bodily injury as was likely to cause death

Knowledge of risk s300(d) third limb of s299

Accused intended to cause a bodily injury and (i) Knew that such injury was likely to cause the death of the person whom the harm was caused 300(b) OR (ii) the bodily injury intended was sufficient in the ordinary course of nature to cause death 300(c) Accused knew that the act was so imminently dangerous that it must in all probability cause (i) death OR (ii) such bodily injury as is likely to cause death AND Accused committed the act without any excuse for incurring the risk of causing such injury or death

Accused did the act with the knowledge that he was likely by such act to cause death

Comparison between s299 and s300: Courts should first consider s299 before s300 but not always possible since issues tend to conflate

Limbs of s299 and s300 not mutually exclusive may affect sentencing for culpable homicide (lower for knowledge as oppose to intent) and s86(2) only allows intoxication to be considered in determining intention Culpable homicide NAM differs from manslaughter (i.e. manslaughter by gross negligence included in s304A and not s299)

Definition of homicide: offence leading to the death of a human being (AR) Unlawful homicide: type of fault determines type of homicide offence (MR) 3 factors to differentiate degrees of fault Combination of all 3 factors to determine type of fault for culpable homicide Subjective-based fault (utilitarian approach) Murder: objective + subjective fault Negligence objective fault (general deterrence ought to have known) o Subsequent addition to PC 1. State of mind of accused: a) Intention b) Knowledge c) Negligence Severity varies with state of mind Types of bodily injury intended or known to be at risk of occurring: a) Death b) Bodily injury sufficient in the ordinary course of nature to cause death c) Injury which is likely to cause to death Degrees of risk of bodily injury occurring: a) In all probability b) Likely/probability c) Possibly

2.

3.

State of Andhra Pradesh v Rayavarapu Punnayya & Anor AIR 1977 SC 45 (Sup Ct of India) All murder is culpable homicide but not vice versa Purpose of fixing punishment proportionate to the degrees of culpable homicide Recognises 3 degrees of homicide st (1) Culpable homicide of the 1 degree Gravest form of homicide Defined as murder under s 300 nd (2) Culpable homicide of the 2 degree st Punishable under the 1 limb of s 304 (rash) rd (3) Culpable homicide of the 3 degree Lowest type of culpable homicide Punishable under the second limb of s 304 (negligent) Academic distinctions caused confusion and vexation Safest way of interpretation: keep in focus the key words used in the various clauses of s 299 and 300 Also, see supra

Transferred intent/malice S301 PC provides for doctrine of transferred intent o MR can be transferred from intended victim to actual victim where the accused neither intends nor knows himself to be likely to cause nd o Literal interpretation: not applicable to 300(c) and 2 limb of s299 where accused intended bodily injury and not death

BUT preferred view: MR transferrable for all culpable homicide and murder justified by policy reasons and broad wordings in s299 and s300 (that fault is not tied to a particular individual) MR must be for the crime charged (MR for murder of A MR for murder of B) o

No felony murder rule in SG Doctrine of constructive MR Person who causes death in commission of a felony (i.e. robbery, rape or resisting arrest) is considered to have the necessary MR for murder (MR for felony MR for murder) NO equivalent rule in PC liability for serious criminal offences requires the proof of MR applicable to those offences Distinct from transferred intent or s301 constructive MR different from transferred intent Rationale of PC framers: utilitarian considerations + concern for individual justice

Ali bin Haji Abdullah v PP [1941] MLJ 46 (CA) The accused raped a girl aged 10 and the girl died in consequence of being raped. Held: Where there is no indication of (i)any intention other than to rape or (ii) any violence other than that which was carried out to effect the rape, a conviction for murder could not stand under the PC The Court noted that while the UK law would have allowed the accused to be convicted of manslaughter on the doctrine of felony murder rule, there was no equivalent rule in the PC

Mohamed Yasin bin Hussin v PP [1975-1977] SLR 34 The victim died as a result of internal injuries that had been inflicted during a violent rape. Held: Not guilty of culpable homicide NAM or murder as PP had not proved the fault element under s299 or s300

Death by RASH or NEGLIGENT act

CURRENT LAW S 304 A of the Penal Code Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished (a) in the case of a rash act, with imprisonment for a term which may extend to 5 years, or with fine, or with both; or (b) in the case of a negligent act, with imprisonment for a term which may extend to 2 years, or with fine, or with both. BEFORE AMENDMENT 2007 Previous S 304 A of Penal Code Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment for a term which may extend to 2 years, or with find, or with both.

Rashness o Involves accused (i) recognising some risk and (ii) choosing to run that risk or carry on regardless o Subjective test o A form of subjective recklessness Negligence o Objective test o Whether the accused has fallen so far beneath the standards expected of ordinary people that criminal liability should be imposed o No requirement for accused to have recognised the risk (less blameworthy than rash)

Distinction between s299 and s304A S299, culpable homicide Scope of MR coverage Covers intention AND knowledge

Degree of risk recognition

Knowledge that death is likely significantly higher degree of risk recognition

S304A, rash and negligent acts Does not extend to cases involving intentional infliction of violence Per Empress v Idu Beg Recognising some risk

Vehicular homicide o s66 RTA: Causing death by reckless or dangerous driving

Illustrations Accident Deliberately used care as weapon with aim of killing V Drove car at V without intent to kill but intent to cause bodily injury No fault, no criminal liability Murder, unless special exceptions apply Drove car in a very dangerous manner, not trying to hit V but actions made it likely that she would be killed Drove car in a dangerous manner, recognising that there were some risks in his behaviour, but not intending to injure anyone and not being aware that death was likely to result Drove car in a manner that was dangerous, having regard to all the circumstances, but not proven that he realised it was in fact dangerous Culpable homicide NAM if bodily injury likely to cause death Elevated to murder if higher level of fault in 300(b) or (c) is satisfied rd Culpable homicide NAM under 3 limb Elevated to murder if level of fault in 300(d) is satisfied Rashness under s304A Recklessness under s66 RTA

Negligent under 304A Dangerous under s66 RTA

Punishment for Homicide Offences

Classification Murder Intention limb Offence Murder - s300 Culpable Homicide not amounting to murder where accused intended death or bodily injury st nd [1 & 2 limb of S 299] Culpable Homicide not amounting to murder where accused knew death was likely rd [3 limb of S 299] Causing death by rash or negligent conduct [S 304A] Punishment Mandatory death penalty - S 302 Maximum of life imprisonment or imprisonment for up to 20 years and also liable to a fine or caning [S 304(a)] Maximum of life imprisonment or imprisonment for up to 10 years and also liable to a fine or caning [S 304(b)] Rashness up to 5 years imprisonment [S 304A (a)] Negligence up to 2 years imprisonment [S 304A(b)] Fines may be imposed for both Generally , maximum is 5 years imprisonment [s 66(1)] If accused is convicted under s 66(1) with at least 2 prior convictions, maximum is 10 years and 6 strokes of cane [s 67A]

Knowledge limb

Rash/negligent

Reckless/ dangerous

Causing death by reckless or dangerous driving [ S 66 RTA]

Death penalty for Murder

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Requires mandatory death penalty once convicted Mitigation factors, besides special exceptions, ineffective Required to prove defence on balance of probabilities (instead of evidentiary burden and PP to disprove beyond reasonable doubt) Plea of clemency (to consider other mitigating factors + PP)

Penalties for culpable homicide NAM o Not necessarily true that intention is more blameworthy than knowledge nd o i.e. intended bodily injury likely to cause death (299, 2 limb) > knowledge that death was rd likely (299, 3 limb)

S304A and road traffic legislation o Maximum penalty for s304A too low compared to s299 o High level of rashness may just fall short of knowledge limb under 299 o Maximum of 2 years for negligence too low for borderline cases o Little difference between s66 RTA and s304A but RTA carries higher penalty o Prosecutorial discretion choice of charge affects more than sentence o S304A relatively lower than other offences like assault and property offences o Advocated solution: increase penalty of 304A for both rashness and negligence