The of its being done with the knowledge

The Latin maxin “actus non facit reum nisi mens it rea” literally mean
that an act does not make
a defendant guilty without a guilty mind when it translate into English. In the book
Latin for Lawyers1
stated that: “The act itself does not constitute guilt
unless done with a guilty intent.”  Criminal Statue generally required proof of
both actus reus and mens rea on the part of a defendant in order
to establish criminal liability.

          According
to our Penal Code (Act 574) Section 81, “act likely to cause harm but
done without a criminal intent, and to prevent other harm” is entitled under
the General Exceptions in the code. Which mean that nothing is an offence
merely by reason of its being done with the knowledge that it is likely to
cause harm, if it be done without any criminal intention to cause harm, and in
good faith for the purpose of preventing or avoiding other harm to properties
or person. This section was justified the Latin maxin “actus non facit reum nisi mens it
rea” is relevant.

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          In Fowler
v. Padget 2:
“It is a principle of natural justice, and of our law, that actus
facit reum nisi mens sit rea. The intent and the Act must both
concur to constitute the crime.” From this case law, we can see that the
Latin phrase is often given as a pinnacle of the common law criminal justice
system, and usually in the context of mens rea rather than actus
reus.

          Besides, in History
of the Criminal Law (1883), James Stephen wrote:

          “The maxim is sometimes said to
be a fundamental principle of the whole criminal law, but I think that, like many other Latin sentences supposed to form
part of the Roman law,   the maxim not
only looks more instructive than it really is, but suggests fallacies which it does not precisely state. It is frequently,
though ignorantly, supposed to mean that there           cannot
be such a thing as legal guilt where there is no moral guilt, which is
obviously untrue, as there is always a possibility of a conflict between law
and morals.”

          When
we already clear about the meaning of the Latin
maxim “actus non facit reum nisi mens sit rea”, we are also need to
distinguish the criminal liability carry by the maxim.

          The Actus Reus is the conduct
or action of the accused which produce or constitutes the forbidden harm, for
example, firing a gun and killing the victim.3 Actus
Reus is not difficult to define as it always have evidence to support and
prove the criminal liability for that particular act which done by the person.
However, the Men Rea mean that a blameworthy state of mind, for
instance, intending to kill when firing the gun4, is the most difficult to prove of the components of the criminal
liability because ‘guilty’ or ‘blameworthy’ can have different meanings
dependant on the offence. 

          The
Penal Code (Act 574) has explained if such condition happened, it would not
consider as an offense:

           A, the captain of a steam vessel, suddenly and without any fault or
negligence on his part, finds himself in such a position that, before he can
stop his vessel, he must inevitably run down a boat B, with 20 or 30 passengers
on board, unless he changes the course of his vessel; and that, by changing his
course, he must incur risk of running down a boat, C, with only two passengers
on board, which he may possibly clear. Here, if A alters his course without any
intention to run down the boat C, and in good faith for the purposes of
avoiding the danger to the passengers in the boat B, he is not guilty of an
offence, though he may run down the boat C, by doing an act which he knew was
likely to cause that effect, if it be found as a matter of fact that the danger
which he intended to avoid was such as to excuse him in incurring the risk of
running down the boat C.

         Beside,
there are four mental states5 can be
justify in the Latin Maxim, that is: general intent, specific intent,
transferred Malice and constructive intent.

          The
general intent is talk about the principle of actus reus wherein it sees
the intent of the crime to be committed. For say in rape, sexual penetration is
the deed which is done. Not only that, the specific intent is besides normal
intention on caring with the act it is necessary to something in addition to
that of actus reus. For example, if person breaks into a house with
purpose of theft and in addition to that taking and carrying away is the process
adopted.

          Besides,
the transferred Malice also one of the mental states. It stated that in cases
where the offender hurts another person instead of the one he intends to hurt.
In such case, the offender is held to be liable for his offence even though
they should be person of attack did not get hurt. The malice of the actual
intended victim sifts for the one who is the victim. The transfer does not take
place if intent to commit a particular harm is not same.

          In
Pembliton 19746, D was
involved in a fight right after he ejected from a pub. He threw a stone at the
group of men he had been fight, he broke the pub window and missed to injure
anyone. The court held that: His “malice” in intending to strike another person
could not be transferred to an intention to break the window, therefore, D was
not guilty. This case can clearly reflect to the passage above which is malice
transffered.

          Moreover,
constructive intent is the situation that we consider not just the intention of
committing harm but we also give attention to the knowledge of the offender of
the high risk of the injury because of that particular action. In situation
where a reckless act happens the person who are able to foresees7 that
consequence are possible because of his conduct but in turns he acts without
any intention or desire to bring them in action. There is only probability of
his seeing and not desires and foresees it. Recklessness is basically “an
attitude of mental indifference to obvious risk”8

          We
can observe that in R v Spratt 1991 CA, D causes Actual bodily harm by
shooting a 7-years-old girl with an air pistol. He was firing from the window
of his flat, aiming at a target in the yard below. V was playing in the yard D
had not known she was there. While the court held that: Recklessness as
envisaged in Venna was clearly subjective recklessness (that is, that D foresaw
the risk but went ahead regardless), because the judgment in Venna speaks of
recklessness and intention as being often almost indistinguishable. (Not Guity)
This case can refer to the constructive intent as well.

          In
the other hand, in Thabo Meli v R (1954)9,
the appellants, in accordance with a prearranged plan, took the victim to a hut
where they gave him beer. When he was partially intoxicated, they struck him on
the head. When they was believing him to be dead, they rolled his body down a
cliff to make his death look like an accident. While the victim died later because
of exposure at the bottom of the cliff. Thus, the Privy Council Held: ” It was
impossible to divide up what was really one series of act in this way, There is
no doubt that the accused set out to do all these act in order to achieve their
plan, and as part to their plan…” They were therefore held guilty of murder.

          While
there may be cases where mental impairment negates the mens reas of the
crime charged, it should be emphasized that this is not the primary way in
which s.84 of Penal Code10
operates. Rather, a person is exculpated under s.84 on account of his or her
lacking the capacity to know the nature of the act or that it was either wrong
or contrary to law. Accordingly, it is entirely conceivable for a person to
lack this capacity and at the same time possess the requisite mens rea
of the crime charged. For example, the accused may have intended to traffic in
controlled drugs and still successfully plead the s.84 defence if it were shown
that, due to unsoundness of mind, he lacked the capacity to know the
drug-traffiking was wrong or contrary to law.11 A
case which missed this points was the Malaysian High Court decision in PP v
Jong Chin Chin.12
The accused was charged with murdering her young daughter. Having determined 13that
the prosecution had proved beyond reasonable doubt that the accused intended to
cause death as required for murder under s.300(c) of the Penal Code, the trial
judge turned his attention to the defence of unsoundness of mind. He considered
the evidence supporting the defence and concluded:

          ‘…
I am in doubt as to whether the accused at the time of inflicting the injuries
on the deceased … was capable of knowing and did know the nature of her act or
that what she was doing was wrong or contrary to law. As I entertain such a
doubt the element of intention cannot therefore be said to have been proven
beyond reasonable doubt by the prosecution at the end of the whole case.’

With respect, this statement misunderstood
the role of the s.84 defence in this case. It would have been far better for
the judge to have left out altogether the reference to intention.

          In
a nutshell, we can concluded that both actus reus and mens rea
are important when we further proceed with reference to the measuring the
criminal liability of a person. In statutory offences we talk about the crime
which harm the society and how the criminal liability is when mens rea
is present in one while absent in another.

1 Latin for Lawyers (London: Sweet
& Maxwell, 1960)

2 101 ER 1103
(1798)

3
Hasbollah Bin Mat Saad and others, Criminal and Constitutional Law in Malaysia:
A Comparative Approach, First Edition, Melaka, Pena Hijrah Resources, 2011,
p.51

4
Hasbollah Bin Mat Saad and others, Criminal and Constitutional Law in Malaysia:
A Comparative Approach, First Edition, Melaka, Pena Hijrah Resources, 2011,
p.51

5
Chandrasekharan Pillai K.N, General Principles of Crimina Law.pp-137

6
Hasbollah Bin Mat Saad and others, Criminal and Constitutional Law in Malaysia:
A Comparative Approach, First Edition, Melaka, Pena Hijrah Resources, 2011,
p.51

7 KD Gaur
, Criminal Law: Cases and Materials, 5th ed, pp-46

8 Hudston
v Viney 1921 1Ch 98

91954
1 WLR 228

10 Nothing
is an offence which is done by a person who, at the time of doing it, by reason
of unsoundness of mind, is incapable of knowing the nature of the act, or that
he is doing what is either wrong or contrary to law.

11 PP v
Rosman bin Jusob & Anor 1995 3 SLR 317 at 325

12 1995
4MLJ 300

13 Ibid,
at 310-311

x

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