General Defences Flashcards
How may D escape liability in general?
- Denying an offence element such as intention or voluntariness (i.e. defences of mistake/intoxication).
- Confessing elements but pleading to a defence (i.e. private defence, duress, provocation)
Can argue as alternative defences even if they are inconsistent with one another [Mas Swan bin Adnan].
3 exculpatory defences?
- D denies personal responsibility for what had occurred: Mistake of fact, accident, sane automatism.
- Defences of compulsion: Offence elements proven, but broader context in which the conduct had transpired in, offers a justification or an excuse which negates criminal responsibility: Consent, private defence, duress necessity, provocation, sudden fight.
- Mental impairment: Unsoundness of mind, intoxication, insane automatism, diminished responsibility.
Generally, justifications focus on the act, while excuses focus on the actor.
Justification: D acknowledges his responsibility for the harmful conduct but contends that it was done in circumstances which made the conduct rightful in the eyes of society.
Excuses: D admits that the conduct is wrong, but a characteristic of the actor which is tested by the threatened danger makes it inappropriate for society to punish him.
S 6 read with S 40(2) PC
General defences apply to all offences both within PC and under other statutes unless specifically excluded by a statute.
Excludes Arms and Offences Act (s4A), Penal Code (commercial sex) and Women’s Charter (s140(4)): exclusion of defence of mistake of fact (s79 PC) for adults.
Mistake of fact defence not available to any person above 21, and only available to persons below 21 if charged for first time.
5 defences to allegation of crime?
- Bare denial: D says he didn’t do it.
- Alibi Defence: D says that he is somewhere else at the time the defence is committed; to which he must give notice of his alibi defence and produce sufficient evidence.
- Procedural Defence: e.g. Double jeopardy, violation of constitutional rights, diplomatic immunity.
- Deny the AR or MR of the offence: trial geared towards showing that the ingredients of the offence do not exist
- i.e. Witnesses do not measure up to proof; inconsistency in testimony; or insufficient evidence. - Raise defences provided in a statute: This includes defences under Chapter IV PC or the special defences in s300 PC.
S 107 EA: D only needs to prove defence on a balance of probabilities -
Eu Lim Hok Lai v PP [2011] 3 SLR 167, SGCA
D convicted of murder under s300(c) PC. V had knife in hand and was dead. D was found with 9 stab wounds, survived. PP said D strangled V with no struggle. TJ did not rule out that D’s wounds were caused by V, but based decision on D’s confession that he strangled V.
D argued the following defences:
- Private defence under s96 PC and under Exception 2 of s300 PC;
- Sudden fight under Exception 4 of s300 PC; or
- Provocation under Exception 1 of s300 PC.
Held: PP had also not proved beyond reasonable doubt that D’s wounds were self-inflicted.
BOD must be given to D. D’s conviction for murder was set aside, and found guilty of CHNM s299 PC.
S 107 EA: D only needs to prove defence on a balance of probabilities -
Jayasena v Queen [1970] AC 618, PC
D, convicted of murder, contended on appeal that the TJ had wrongly directed jury on burden of proof. D admitted that V died of wounds deliberately inflicted by D, defence was that he was acting in self-defence.
Held: The defence bears the legal burden of proof for a general or specific exception of the PC.
S 103 EA: PP must prove beyond reasonable doubt -
J.A.H.N Gamini and Anor v PP [2011] 3 SLR 689
Starting point for TJ: D is presumed innocent until PP has discharged its Burden of Proof (as per Jagatheesan).
Reasonable doubt can also arise by virtue of the lack of evidence submitted.
In a criminal case, the court may find V’s story to be more probable than D’s, and, yet, be convinced that there is a reasonable possibility that D’s story could be true. If so, the court’s duty is to acquit. Note that focus is not in determining which of the two stories is more plausible.
Gen Defences in Strict Liability vs Absolute Liability?
SL: Can plead general defence.
AL: Cannot plead general defence.
Accident (S 80 PC) (No MR)
[2019 Amendment:
Deleted “without any criminal intention or knowledge”.
Added definition of “lawful act”.]
Nothing is an offence which is done by accident or misfortune in the doing of a lawful act in a lawful manner, by lawful means, and with proper care and caution.
Lawful act: any act which is not an offence under this Code or any written law.
Accident (S 80 PC) (No MR):
Stephen’s definition of Accident?
(Stephen, Digest of Criminal Law, 3rd Ed, 1883)
“an effect is said to be accidental when
- “the act by which it is caused is not done with the intention of causing it, and
- “when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it”.
Note the higher the foreseeability of the consequence occurring, the greater the precautions that will be expected of the actor to avoid the consequence.
Accident (S 80 PC) (No MR):
Accident vs Mistake?
Accident requires ‘proper care and attention’.
Mistake requires ‘in good faith’.
Accident (S 80 PC) (No MR):
Cannot apply to offences with subjective mental states or negligence, BUT
- Can apply to offences of strict liability: Where PP is not required to prove subjective mental state or negligence.
- Can apply to status offence: Criminalises persons for being in a state of affairs rather than for conduct.
i. e. Possession of drugs under MDA (a person who had a drug planted on him can rely on s80 PC defence to show that he had come to have the drug by accident).
Accident (S 80 PC) (No MR):
Can be combined with another general defence (but uncommonly applied)
- Accident and private defence: When force was applied accidentally
- Accident and consent
- Accident and mistake of fact: Circumstances which caused accused person to misconceive the facts and to act in a certain way (as per Leu Xing-Long v PP (commercial sex with under 18yo))
- Accident and sane automatism
Accident (S 80 PC) (No MR):
Elements -
Tan Chor Jin v PP [2008] 4 SLR 306, SGCA
Held D had no lawful excuse for carrying the gun and entering V’s house. D’s actions were done without proper care and caution, as it could not have been the case that 6 shots misfired.
4 conditions (from s80 PC) had to be fulfilled. The act done by D must be-
- Act done by D must be the result of “accident or misfortune”;
- Said act must be done “without any criminal intention or knowledge”;
- Said act must be lawful, and must be performed “in a lawful manner, by lawful means”; and
- Said act must be done “with proper care and caution”.
Accident (S 80 PC) (No MR):
Elements - Accident and Misfortune -
Leu Xing-Long v PP [2014]
D’s act is intentional, done with reasonable precautions but without criminal intent or knowledge.
Must be the unexpected or unforeseen effect or result of the act that is the accident or misfortune.
** S80 not meant to negate elements in alleged offence.
Accident (S 80 PC) (No MR):
Elements - Lawful Act/Manner/Means -
Kong Poh Ing v PP [1977] 2 MLJ 199, FC(M)
D told V she intended to commit suicide and showed V a knife. V hugged D and told her not to go ahead with the suicide and tried to wrench the knife away. V lost his balance and accidentally fell onto the knife. PP argued that since suicide was a felonious offence, D’s act of stabbing V in the course of committing suicide, even if accidental, could not bring the offence within s80 PC.
Held: s80 PC defence was applicable since D had been performing the lawful act of showing V the knife. There was no criminal intention or knowledge.
Accident (S 80 PC) (No MR):
Elements - Lawful Act/Manner/Means -
Ismail Bin Abdul Rahman v PP [2004] 2 SLR 74, SGCA
D discharged 3 bullets, intending to cause injury, at V, a CISCO officer on duty at the material time. V was hit by all 3 rounds and died as a result. A was a former CISCO officer known to V.
Held (CA): Defence not available since D did not possess a valid licence for the revolver at the material time and instantly failed the “lawful act” requirement.
Also distinguish between Accident and doing something accidentally (no defence raised).
Mistake of fact:
S 76 PC
S 79 PC
S 52 PC
S 76: Act done where he is bound by law to do it.
S 79: Act done by mistake of fact believing himself justified or bound by law to do it.
S 52: Nothing is done or believed in good faith if done or believed without due care and attention.
Mistake of fact:
Can serve as justification for the act?
Yes, where D believes that he was bound or justified by law to commit the act.
NOT meant to negate MR as mistake is considered after the offence is established (i.e. effect of negating MR is merely a side effect of the defence).
Mistake applies to strict liability offences [Tan Khee Wah Iris v PP].
Mistake of fact:
Elements?
- Must be by mistake of fact,
- Believes himself justified or bound by law to do it, and
- Mistake was believed in by him in good faith.
Established maxim: Ignorance of law is no excuse (S79A).
Fact is something that can be perceived by the senses.
Exception: Not considered mistake of law if D could not possibly with reasonably diligence know of the existence of the adverse law.
Mistake of fact:
“Must be in good faith” and “Due care and attention” -
Iris Tan Khee Wan v PP [1995] 2 SLR 63
D convicted for providing public entertainment without a license (offence under s18(1)(a) of the Public Entertainments Act). Issue was whether she could rely on s79 PC, and whether s18 PEA was a strict liability offence.
Held: Whether mistake was made in good faith ≠ if the mistake was an easy one to make or whether a reasonable person could make the mistake. Rather, whether there was due care and attention.
Even if reasonable person would naturally make the mistake that the night of NYE includes the early hours of NY’s Day, it’s not the mistake they will make if he exercises due diligence and attention.
On the facts, if D had read the whole licence and had given any thought to all of the matter, would have discovered that licence expired. Unfortunate but irrelevant that the licensing officer made the same mistake.
Mistake of fact:
“Belief that one is bound or justified by law” -
Abdullah v R [1954] (SG CA)
D charged and convicted with statutory rape under s376 PC. D argued that he thought the girl was above 16, but she was in fact under 14. D claimed that he was “justified by law” because he believed “in good faith” that she was over 16 and appealed that he had reasonable grounds for believing, and did in fact believe that the girl was more than 14. Hence, he was entitled to be acquitted under s79 PC.
Held: Must ascertain if belief is true. If belief is correct, act will always be justified by law.
Mistake of fact:
“Belief that one is bound or justified by law” -
Lim Chin Aik v Queen [1963] MLJ 50, PC
D resided in M’sia and commuted to and from SG and M’sia. Subsequently, SG Minister issued an order prohibiting D from entering SG. D then returned to SG and began to live there. 10 days after his return, he was arrested and duly charged and convicted of having entered SG without a valid permit (s6(1) of the Immigration Ordinance). The notice was not brought to D’s attention.
Held: Rejected argument that once the order was made by the minister, it became part of SG law of which ignorance could provide no excuse upon a charge of contravention of the section.
No practical or sensible way D could ascertain whether he was a prohibited person or not.
Mistake of fact:
“Belief that one is bound or justified by law” -
PP v Koo Cheh Yew and Anor [1980] 2 MLJ 235
D charged with importing 6 pianos from South Africa in violation of Customs Act 1967. Products from South Africa were then prohibited goods.
Held: Exception to the rule against ignorance of law should not be extended beyond where D could not possibly have known of the existence of the law he had offended against.
Noted that mistake as to the ban on importation goods originating from South Africa is a mistake or ignorance of law and not of fact. Importers knew origin of the goods but admitted ignorance of the statutory ban on the importation of goods from South Africa.
Mistake of fact:
“Belief that one is bound or justified by law” -
PP v Teo Eng Chan [1987] SLR(R) 567 (SG HC)
For cases of rape, the mistaken belief of D that the complainant had consented to sexual intercourse must be based on reasonable grounds.
Mistake of fact:
“Belief that one is bound or justified by law” -
Param Nair v PP [2017] 2 SLR 1015, SGCA
Burden is on A to establish defence on a balance of probabilities [Teo Eng Chan] (at [110]).
Must show that ‘by reason of a mistake of fact’ A ‘in good faith’ believed A to be justified by law in doing what he did to V. In other words, in believing that V consented.
Nothing is believed ‘in good faith’ if it is believed ‘without due care and attention’ (s52 PC) (at [110]).
Inquiry under s79 PC: A must persuade Court that, having exercised due care and attention, he believed V consented. Has to be determined by having regard to all the circumstances.
On the facts, A had not attempted to show that he had exercised due care and attention in arriving at his belief that V was consenting (at [114]).
On the contrary, it was clear that A had tried to take advantage of V due to her intoxicated state (at [114]).
Mistake of fact:
“Belief that one is bound or justified by law” -
Chinpo Shipping Co Pte Ltd v PP [2017] 4 SLR 983, SGCA
A may avail itself through mistake of fact by a person who has acted in good faith having exercised due care and attention to avoid the mistake.
Mistake of fact is of general application to offences under all written laws in SG pursuant to s40(2) PC (at [55]).
On the facts, this defence was not applicable to Chinpo, which made no checks or queries in relation to the transfer.
Intoxication:
S 85 PC
Intoxication when a defence.
(1) Except as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge.
(2) Defence if by intoxication D, at the time of the act or omission —
(a) did not know what he was doing; or
(b) did not know that such act or omission was wrong (whether wrong by the ordinary standards of reasonable and honest persons or wrong as contrary to law),
and the state of intoxication was caused without the knowledge or against the will of D.
(3) Defence if by intoxication D was of unsound mind per s 84.
Intoxication:
S 85 PC Change in 2019 Reform?
Intoxication when a defence.
(2) and (3) added.
Previously,
1. (2) just unawareness that an act/omission is wrong, not against reasonable person std or against law;
- (2)(a) Intoxication caused by another person maliciously or negligently turned into condition for defence;
- Removed (2)(b) - D was insane, temporarily or otherwise, at the time of such act or omission; and
- No reference to s 84.
Intoxication:
S 84 PC
Act of person of unsound mind.
No offence if, at the time of doing, by reason of unsoundness of mind, is —
(a) incapable of knowing the nature of the act;
(b) incapable of knowing that what he is doing is wrong (whether wrong by the ordinary standards of reasonable and honest persons or wrong as contrary to law); or
(c) completely deprived of any power to control his actions.
Intoxication:
S 84 PC Change in 2019 Reform?
Act of person of unsound mind.
Added:
1. “completely deprived of any power to control his actions”; and
- Comparison to reasonable man standards for what act is wrong.
Intoxication:
S 86 PC
Effect of defence of intoxication when established.
(1) Where s85 defence is established, then D must be acquitted, except s84 of this Code and ss 251 and 252 of CPC will apply.
(2) Intoxication shall be considered to determine whether D had formed any intention or had any knowledge or belief, specific or otherwise, needed for the offence.
(3) “Intoxication” shall be deemed to include a state produced by narcotics or drugs.
Intoxication:
S 86 PC Change in 2019 Reform?
Effect of defence of intoxication when established.
Clarity in (3).
Intoxication:
Meaning -
Jin Yugang v PP [2003] SGCA 22
D consumed half a bottle of wine, fought with V. Suddenly, D seen holding a knife and charging at V. D stabbed V who was lying on the ground floor several times. He threw the knife away, kicked V, walked away, then kicked V a few more times.
Held: Did not follow that he was so intoxicated that he didn’t know what he was doing.
On the facts:
- D admitted that he was a seasoned drinker;
- D stabbed and kicked V, walked away, and came back to kick V. Indicates utter spite and disgust for V; and
- D could recount his activities.
** Not fleeing the scene does not indicate intoxication. Although one might be ‘uncontrollable’ at the time of attack, it might be actions of someone who is incensed.
** If intoxication involuntary, but impairment is not that substantial, then s85(2)(a) PC absence of knowledge and s86(2) PC absence of intention is inapplicable.
