Culpable Homicide & Murder

Criminal Notes by Tuan Syakeer bin Tuan Besar 2011/2012

TOPIC 4:

0FFENCES AFFECTING THE HUMAN BODY (LIFE):

CULPABLE HOMICIDE & MURDER

1. Definition of Homicide -Causing death of a human being by another human being-derives from two words, “homo” man + “caedere” to kill-Is one always culpable for homicide? – Not necessary because a homicide can be lawful, e.g. in cases of self-defence, accident, mistake or insanity.

2. Types of Homicide: i. Lawful

-Excusable: When a person is pardoned/forgiven, e.g. in cases of infancy, accident, insanity.-Justifiable: What the law does not prohibit it allows & what is allowed is justified by law.

ii. Unlawful -making one liable either for Culpable Homicide (CH) under s. 299 & Murder under s. 300

3. Preliminary Issues -Meaning of Life: Refer to s. 45 (denotes life of a human being)-Beginning of life: Not upon conception, but upon birth (refer Exp 3 of s. 299)-Death-Refer to s. 46 (death denotes the death of a human being) -Based on clinical death, i.e. when the brain stops functioning

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4. Elements of CH & Murder

CH (s. 299) MURDER (s. 300)a Doing an act with the intention

of causing death-Similar to Limb 1

1 Act by which the death is caused is done with the intention of causing death

b With intention of causing such bodily injury as is likely to cause death

-similar to Limb 2-e.g. hit someone with a cricket bat on the victim who is reasonably healthy

2 Done with intention of causing such bodily injury as the offender knows to be likely to cause death of a person to whom the injury is inflicted (to victim)

-where the offender reasonably knows the peculiarity of that person (i.e. age/disease - a child, a young person, an old man-there must be a use of dangerous weapon/instrument that is ordinarily sufficient to cause death-had the Mens Rea Death of deceased is the direct consequence of Accused act

c With knowledge that he is likely by such act to cause death

3 Done with intention of causing bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death

4 Offender knows that it is so imminently dangerous that it must be in all probability cause death/such injury as is likely to cause death

5. Similarity btw CH & Murder Offences in PC are defined in respect of Actus reus & Mens Rea-the Actus Reus of CH & Murder causing death-the Mens Rea of CH & Murder the intention/knowledge to cause death both CH & Murder are result crimes

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6. Difference btw CH & Murder Degree of risks/chances to cause death

CH (s. 299) – where death is likely (lesser degree)

Murder (s. 300) – where death is probable (higher degree)

7. Whether CH & Murder are the same thing? -2 views on this One by Beaumont & the other by Mayne.

Beaumont’s View Mayne’s View

-His stand: CH & Murder are the same where CH may amounts to murder & ONLY when either one of the exceptions under s. 300 of PC applies a CH does not amount to murder-the 5 Exceptions under s. 300 are:

a) Provocationb) Consentc) Exceeds power by public servant in acc

with the law + good faithd) Private defencee) Mistake/sudden fight

-His reasons of saying CH = Murder:i. 1st limbs of s. 299 & s. 300 are the

sameii. Limb a in s. 299 & Limb 1 of s. 300

are the same“…with the intention of causing death”

iii. Murder is punishable under s. 302 & when the Exceptions under s. 300 apply, murder becomes CHNATM which is punishable under s. 304 while, there is no punishment for s. 299 for the offence of CH.

iv. If the 5 Exceptions under s. 300 apply to s. 299, where CHNATM then, to what offence is it reduced

-His stand: CH is not murder as CH is the genus & murder is the species of the genus-there are 3 unlawful kinds of killing:

1) CH under s. 2992) Murder under s. 3003) CHNATM where the 5 Exceptions under

s. 300 apply, punishable under s. 304

-all murders are CH but, not all CH are Murder

-Differences btw CH in s. 299 & CH where the 5 Exceptions under s. 300 apply:

1. CH under s. 299 ; solely & already a CH-simplicitor an offence on itself

2. CH where 5 Exceptions apply; because it is originally a murder but it falls under CH when 5 Exceptions apply.

-Rebuttal to Beaumont’s View:1) 1st Argument: Though the 1st Limb of

both offences of CH & Murder are the same, but it does not mean that the offences are the same because other limbs of the sections are different

2) The reason Limbs a & 1 are the same for both sections 299 & 300 respectively is to facilitate the plea bargaining process by the PP to a lesser punishment

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(from CH to what)?-CH cannot be reduced.

3) 3rd Argument: It is true that murder is punishable under s. 302 but it is not true that there is no punishment for CH under s. 299 because its punishment is prescribed under s. 304 of PC. Thus, CH shares the same punishment with CHNATM (where the Exceptions under s. 300 apply).

4) 4th Argument: the 5 Exceptions in s. 300 apply to s. 299 so as to reduce the punishment-the offence is not reduced but the punishment

Cases:

Somasundrum (Supporting Beaumont’s View) -Facts: there had been ill-feelings between the 4 Accused persons & the deceased. The deceased had purchased the land which originally belonged to the 4th Accused. The Accused was pressing the deceased to give back his two acres of land which the deceased refused. -the Accused went to the field where the deceased was ploughing his land & they pulled him out of his work & pleaded him to return the lands. The deceased refused & continued his work.-the Accused then beat the victim using a bamboo stick which was not a dangerous weapon & subsequently caused a very serious injury where the victim’s bones were protruding, the limbs broken & the victim later died on the same day. -The Accused was charged for CHNATM, punishable under s. 304 because the PP had failed to prove that the Accused has the intention to cause death-the Accused appealed.

HELD:At 1 st Trial: -the 1st, 2nd & 3rd Accused persons were convicted under s. 304 & the 4th Accused was acquitted.

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On Appeal:-Whether the conviction under s. 304 & the acquittal were proper?-On the facts of the case, the Court looked at the nature of the injury where the injury caused on the victim was so severe & sufficient to cause death. Henceforth, making the act committed by the Accused an offence of murder under s. 300 (Limb 3). However, it came out of murder since there was a sudden fight (where the Exception 4 of s. 300 applies), the Accused is only punishable for causing CHNATM.-the judge equated CH & Murder where he based his view on Stephen’s;

Limb a of s. 299 & Limb 1 of s. 300 are similar – intention to cause death Limb b of s. 299 & Limb 2 & 3 of s. 300 are similar;

-caused bodily injury that is likely to cause death-s. 299 Limb b is further explained in Limb 2 (likely to cause death) & Limb 3 (sufficient in the ordinary course of nature to cause death) of s. 300

Limb 4 of s. 300 is murder, however, s. 299 Limb c is CHNATM

R v Govinda -the Accused Husband aged 18 was charged for Wife’s murder aged 15. The Accused murdered the wife by kicking the the wife & struck her several times with his fist on her back & she fell on the floor. He later hit the wife & landed a few blows on the head & the face and subsequently caused the death of the wife almost instantaneously due to concussion (injury w/o discoloration & blood clot). -the Accused was charged & convicted of murder.

HELD:On Appeal:-the charge of murder was set aside & substituted for CH because the Accused had no intention to cause the death of his wife-Reasons of such decision:

It was only a domestic argument which unfortunately ended with a fight No usage of weapon – Only involved the use of his fist/hand No bodily injury which is sufficient enough in the ordinary course of

nature to cause death But the violent blows from a man’s fist while a person is laying her head

on the floor is certainly likely to cause death either by producing concussion/extravasations of blood on the surface/in the substance of the brain. (Limb c of s. 299)

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-the Accused also had no intention to cause bodily injury which is likely to cause death

-the wife lied on a hard-surfaced floor thus, when the blows landed on her, the blows created more impact

-the judge discussed on the difference btw s. 299 & s. 300 which reflected Mayne’s view;

S. 299 Limb a & s. 300 Limb 1 Intention to cause death S. 299 Limb b & s. 300 Limbs 2 & 3 Intention to cause bodily injury On issue whether the injury is likely/sufficient in the ordinary course to

cause death; CH- where death is likely (there was an intention to cause bodily injury

but not to cause death) & if death is probable then, it is murder Probable under s. 300– Chances to happen higher Likelihood under s. 299 – Might/may not happen at all

8. Discussions According to Limbs under s. 299 & s. 300

I. Limb a of s. 299 & Limb 1 s. 300 (the 1 st Limbs of both sections) -“intention of causing death”

-intention can be inferred from the facts of the case as to what the Accused said & done-in deciding whether the Accused had the intention to kill, it can be considered from the following factors: Nature & use of weapon – what kind? Place & the number of injuries inflicted? Method of infliction

-intention to kill is more likely to be inferred where the weapon is one for cutting/firing rather than beating

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Cases:

Ismail bin Husin v PP -Facts: the Appellant, a member of the Home Guard was convicted for the murder of Omar who was also a member of the Home Guard & the attempted murder of Rifin. The Appellant claimed to have mistaken them for terrorists. Omar died instantly from his wound while Rifin was only injured in the legs.-the case before prosecution the Appellant had shot Omar with malicious intention & on purpose-the case before the defence the Appellant had not recognized Umar but instead mistaken him to be a terrorist

HELD:HC HELD:-the Accused argued that he did not fire on sight because he only shot after making the challenge. Since no one shouted so he released the shots.-gave instruction to the Assessors based on law; If the Accussed is satisfied that the recognized the deceased but still fired the shot, convict him with murder. But if the Accused thought that the victim whom he had shot was a terrorist, convict him with CH. And if the Accused thought that the deceased was a terrorist & after making the challenge, shot & killed him, then free the Accused.-therefore, the Accused was convicted for murder as he recognized the deceased but still he shot the fire at him.-the Accused later appealed.

At 1 st Trial: -Evidence before the Court;

i. The Appellant had gone to the place with a friend & the victims were there too

ii. Rifin also fired 2 shots but with not effectiii. There was also evidence as to friction/quarrel btw the Appellant & the

victims several years ago but cannot be proven at that timeiv. The Appellant had challenged Omar but received no answer. But his

statement stated that he fired on sight & his statement prevailed.

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-Directions by the Trial Judge to the assessors:

i. If the Appellant recognized Omar & purposedly shot him then, he is liable for murder.

ii. If the Appellant thought that it was a terrorist then, he is liable for CH.iii. If the Appellant thought that it was a terrorist after offering the challenge

then, he has committed no offence at all.

On Appeal:

-the conviction was upheld but the Court criticized the instructions given out by the Trial Judge to the Assessors;

The distinction btw the life of the deceased as an ordinary person & the life of a terrorist As if the life of a terrorist is of lesser importance, very narrow instruction (if he knows the deceased then, liable for murder, if known he is a terrorist, then liable for CH)

-the Accused is liable for murder of the deceased.-Principles established:

Shooting at someone within a close range indicated that the Accused had the intention to cause death

And intention can be formed at the spur of the moment

Ms Moorthy -Facts: the Accused had made the victim took the life insurance policy but he did not know about that. The Accused planned to victim by preparing for him sweets with poison. However, it was later eaten by two children, not the victim.

Tan Buck Tee v PP -Facts: the Accused & the deceased earlier on had a fight. The Accused then attacked the deceased who was asleep with an axe stabbed on the chest. The axe penetrated the lung & the liver.

HELD:-the Accused had the intention to cause the deceased’s death because he attacked the victim at a state where he cannot defend himself (while asleep)-before convicting the Accused, the Judge took into consideration the following factors in making the decision (to indicate intention to cause death):

Nature & place of injury – the injury inflicted on the chest which penetrated the lung & the liver

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Nature of weapon which was heavy & sharp instrument – an axe Condition of deceased – At a state of not able to defend himself

II. Limb b of s. 299 & Limb 2 of s. 300 Limb b of s. 299 – “Intention of causing such bodily injury as is

likely to cause death”.

Case:

Inder Singh Bagga Singh v Pepsu AIR -Facts: the Accused had attacked the victim from behind by using a lathi with two blows. And when the victim turned & the two more blows were inflicted again on the victim’s face. The cause of death was due to the compression of the brain because the blows hit the back of the victim’s head.

HELD:At 1 st Trial: -Convicted for murder (under the 4th Limb)

On Appeal:-the charge of murder was substituted with CH due to several reasons:

Nature of weapon – A lathi, not dangerous but a blunt weapon The condition of victim – Was a reasonably healthy strong person & he

only died in 3 weeks time, therefore the injury is not sufficient in the ordinary course of nature to cause death to the victim.

And based on the doctor’s testimony that the fractured skull is curable.

Limb 2 of s. 300- “Intention to cause bodily injury that the offender knows to be likely to cause the death of the person to whom the harm is caused”.

Case:

Inder Singh Bagga Singh v Crown -Facts: there was a fight btw the two parties whereby one of them from the Accused’s group had been injured. The injury inflicted was a broken leg. The Accused with the intention of revenge inflicted injury to one of the members of the other group. The Accused had inflicted a blow on the victim below the knee

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using a blunt instrument causing a fractured femur & no harm on his thighs. There was no injury caused to any of the victim’s vital part of body but yet, the victim died.

HELD:At 1 st Trial: -the Accused was convicted for murder (under the 4th Limb of s. 300)

On Appeal:-the Court allowed the appeal & reduced the conviction that of murder to CH because the nature of the injury inflicted on the leg is not sufficient but only likely to cause the death of the victim & the weapon (a lathi) used was a dull & blunt weapon.

Limb 4 of s. 300: “the offender knows that it is so imminently dangerous that it must in all probability cause death/ such bodily injury is likely to cause death”

Cases:

Gaurishankar -Facts: the Accused had a court case pending upon him where the deceased father was called to be one of the witnesses in that case. The Accused gave arsenic poison to the 9-year-old son of the witness which later caused the boy’s death.

HELD:-the Accused was convicted for murdering the child because he knowingly gave the child such dangerous poison with the intention to cause the child’s death-the Judge in making decision took into consideration a few factors such as followed:

The condition of victim- A boy at a tender age where the arsenic poison is likely o cause the death to him as compared to an adult

III. Limb b of s. 299 & Limb 3 of s. 300 Limb b of s. 299: “With the intention of causing such bodily injury

as is likely to cause death”.

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Case:

Tham Kai Yau v PP -Facts: the Appellant had attacked the deceased with a saw & choppers which inflicted multiple deep incised wounds, two being serious head wounds. -However, the pathologist was not asked for his opinion on the nature of the injuries inflicted & their probable effects. -There was no post-mortem report presented to the court even though in fact, the weapons used by the Appellants were deadly weapons & the victim killed was struck by more than one blow.

HELD:-A comparison that frequently arises in the application of s. 299 & s. 300 is the tenuous (very slight/weak) contention that s. 299 is not a substantive offence & therefore, an offence is either murder or CH according to whether or not one of the Exceptions to s. 300 apply. And if by reason of the absence of the necessary degree of MR, an offence does not fall within s. 300, it cannot be one of CHNATM…but would amount to causing grievous hurt. In our view the correct approach to the application of the two sections is this, s. 299 clearly defines the offence of CH, & CH may not amount to murder.-where the evidence is sufficient to constitute murder but one or more of the Exceptions to s. 300 apply-where the necessary degree of MR specificed in s. 299 is present but not the special degrees of MR referred to under s. 300, all cases falling within s. 300 must necessarily fall within s. 299, but all cases falling within s. 299 do not necessarily fall within s. 300.-the Court held that the Accused was liable for CHNATM because the Accused had no intention to cause the death of his wife & there was a lack of medical evidence (no post-mortem result was produced).

Limb 3 of s. 300: “With the intention of causing bodily injury that is sufficient in the ordinary course of nature to cause death”.

Case:

Virsa Singh v State of Punjab AIR -Facts: the Accused used a spear to cause bodily injury on the victim. One stab wound was inflicted on the victim’s abdomen which cut the intestine into 3 parts. The digested food spurred out of the stomach. And he was charged & later convicted for murder.

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-the Accused appealed against conviction of murder.

HELD:-Nature & place of injury - Stab wound is deep + sufficient in the ordinary course of nature to cause death-Nature of weapon – A spear which is dangerous. -Court laid down the 5 requirements that shall be proven by the PP in order to charged the Accused person under Limb 3 of s. 300:

The present bodily injury – evidenced by photographs The nature of bodily injury – evidenced by post-mortem report (place &

nature of injury The Mens rea of the Accused – must have the intention/knowledge that

bodily injury might probably cause death & it was not accidental/ unintentional.

The bodily injury in the ordinary course of nature can cause death – Look at the nature of weapon used & the nature of the injury and the place where it was inflicted

The death was in fact caused due to the bodily injury

-this case was applied in the two subsequent cases of Mohd Yassin & Tan Chew Bok

Mohd Yassin v PP -Facts: the Accused had gone to the victim’s house to rob her & while in the course of stealing things, made some noise & the victim was awaken. The Accused & the victim fought in a struggle, & when the latter’s trousers had fallen down the Appellant got excited & subsequently raped her. -Later afterwards, the lady victim died due to cardiac arrest resulting from her fractured ribs & compressed lungs. There were bruises on her thighs & injuries on her vaginal wall.

PC HELD:-the appeal should be allowed because it is not proper to convict him with murder because he never admitted since the trial, that he did sit on the victim’s chest & the fact that the PP had failed to prove the causal link of the injury inflicted (fractured ribs & compressed lungs) & the death of the victim

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-therefore, the Accused was not liable for murder but his charge was substituted with the offence of causing death by rash & negligent act under s. 304A.

Tan Chew Bok v PP -Facts: the Accused had gone to the victim’s house to commit theft. And when he confronted with the victim, the victim started to scream. To shut her up, the Accused took up a knife & stabbed at her mouth till it struck at the back of her neck.-the Accused was charged & convicted for murder.

HELD:On Appeal:- the Accused argued: He did not intend to cause bodily injury to cause that is sufficient in the ordinary course of nature to cause death but only intended to shut her up.-clarified on the 3rd requirement (the Mens rea of the Accused); intention/knowledge to be proven subjectively (weapon use & place of injury) & the injury in the ordinary circumstances to suffer death to be proven objectively (injuries which in fact were inflicted)-there was intention on the part of the Accused – struck at the mouth, not accidental/ unintentional because he intended to shut her up-the bodily injury was sufficient in the ordinary course of nature to cause death – a stab in the mouth using a knife

The case of Tan Ju Cheng broaden the principle in Virsa Singh’s Case & the case of Lim Po Lai stored back to the original position of Limb 3 of s. 300

Tan Ju Cheng -the Accused stabbed on the victim’s neck intended to cause a minor injury but the victim died to that injury.

Lim Po Lai -involved common intention of s. 34. The victim was forced to sign certain cheques in their favour & he refused. He was later stabbed the Accused on the leg & died due to such injury. The Accused was held not liable because the causal link between the injury on the leg & the victim’s death was not established.

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IV. Limb c of s. 299 & Limb 4 of s. 300 -Limb c of s. 299: “With knowledge that he is likely by such act to cause death”.-no intention is required but only KNOWLEDGE-the Accused knows that his act is likely to cause death

Jamaluddin -Facts: the Accused had beaten up the victim in order to exorcise her. She later died & the Accused was charged & convicted with murder.

HELD:-he should have known as an adult that his act of exorcising her by beating her up is likely to cause death.

State of Madya Pradesh v Ram Prasad AIR -Facts: the Accused splashed some kerosene to the deceased before lighting up her Sari with fire. The victim died due to the injuries sustained from the fire.

HELD:-the Accused was held liable for murder because he had the knowledge that by the act of splashing the kerosene at the victim’s Sari & lighting up the fire was imminently dangerous which will most probably cause her death.

William Tan v PP -Facts: the Accused was chasing another car in which his ex-Gf was traveling with another man on a straight road. At that time, there was no car in the traffic. -The Accused tried to overtake the car & when succeeded, he knocked on the window which subsequently caused the car to swerve to the other lane & hit a motorcyclist coming from another direction & killed him instantly.

HELD:At 1 st Trial: -The Accused was charged for murder because he had the knowledge that his act is so imminently dangerous to cause death in all probability. (under the 4th Limb of s. 300)

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On Appeal:-the Accused act is proven to be so imminently dangerous that it must in all probability cause death, however since the road had been deserted & the PP failed to prove that the Accused had in fact, had the mens rea to cause the death to the victims.-the charge for murder was substituted to s. 26 of Road Traffic Act Singapore (same with s. 41 (1) in Road Traffic Act Malaysia for rash & negligent act

PP v Silvaje Subramaniam -Facts: the Accused was a police inspector & charged for murder of his wife. He smothered the victim to prevent from breathing & the victim died due to suffocation.-the Accused was charged for murder.

HELD:-the charge was substituted from murder to causing death & negligence under s. 304A as there was no intention to cause death though the act of the Accused was imminently dangerous.

9. Issue: Whether the Authorities can be liable for causing the death of the prisoners whilst in their custody?

-Suspects are subject to harassment & interrogations during police investigations

-Intention: To obtain/ extort the confessions from the Accused persons & not to cause death or any physical injuries

-Whether it is a defence for police officers who caused the death of a prisoner whilst in their custody?

Suspect (before trial) Accused (during trial-charged) Convicted (once liable)

Thambi Durai v PP -the Accused was the officer in-charge of interrogation who killed a prisoner to extort his confession.

HELD:On Appeal:-the act of the Accused officer in beating to extort confession causing the death of the prisoner can be liable for murder

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-the Accused argued that they did not intend to cause death/injury/or anything probable to cause death but they intended to investigate -by looking at the facts; there were evidence to cause grievous hurt to extort conviction therefore, the Accused was liable & sentenced with 10 years of hard labour.-Judge disagreed with the defence of the Accused but the appeal was allowed because there was no post-mortem report was adduced. Therefore, he can only be convicted for causing grievous hurt to extort confession.-It is no proper to say that they did not have the intention because they have the knowledge that their act would cause death.

Lam Kim Hon v PP -the deceased was suspected for theft and was interrogated for two days continuously w/o food & sleep. The superficial injuries were found to be consistent with the fact that he was cuffed. But the internal injuries suffered by the him were not examined & the post-mortem was not available.

HELD:-the Accused was convicted for CH & he appealed.On Appeal:-The conviction was reduced to causing grievous hurt while extortion which carries a punishment of three years imprisonment-Raja Azlan Shah had criticized in his judgment that this case should not be used as a precedent. (Unfortunately, it was relied in the case of PP v Muhari bin Mohd Jani & Anor.)

-the Punishment for CH is different if, with intention will carry a term of imprisonment of 30 years + fine but with knowledge, will carry a term of punishment of 10 years OR a fine

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