The Latin maxin “actus non facit reum nisi mens it rea” literally meanthat an act does not makea defendant guilty without a guilty mind when it translate into English. In the bookLatin for Lawyers1stated that: “The act itself does not constitute guiltunless done with a guilty intent.” Criminal Statue generally required proof ofboth actus reus and mens rea on the part of a defendant in orderto establish criminal liability. Accordingto our Penal Code (Act 574) Section 81, “act likely to cause harm butdone without a criminal intent, and to prevent other harm” is entitled underthe General Exceptions in the code. Which mean that nothing is an offencemerely by reason of its being done with the knowledge that it is likely tocause harm, if it be done without any criminal intention to cause harm, and ingood faith for the purpose of preventing or avoiding other harm to propertiesor person. This section was justified the Latin maxin “actus non facit reum nisi mens itrea” is relevant. In Fowlerv.
Padget 2:”It is a principle of natural justice, and of our law, that actusfacit reum nisi mens sit rea. The intent and the Act must bothconcur to constitute the crime.” From this case law, we can see that theLatin phrase is often given as a pinnacle of the common law criminal justicesystem, and usually in the context of mens rea rather than actusreus. Besides, in Historyof the Criminal Law (1883), James Stephen wrote: “The maxim is sometimes said tobe a fundamental principle of the whole criminal law, but I think that, like many other Latin sentences supposed to formpart of the Roman law, the maxim notonly 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 cannotbe such a thing as legal guilt where there is no moral guilt, which isobviously untrue, as there is always a possibility of a conflict between lawand morals.” Whenwe already clear about the meaning of the Latinmaxim “actus non facit reum nisi mens sit rea”, we are also need todistinguish the criminal liability carry by the maxim. The Actus Reus is the conductor action of the accused which produce or constitutes the forbidden harm, forexample, firing a gun and killing the victim.3 ActusReus is not difficult to define as it always have evidence to support andprove the criminal liability for that particular act which done by the person.
However, the Men Rea mean that a blameworthy state of mind, forinstance, intending to kill when firing the gun4, is the most difficult to prove of the components of the criminalliability because ‘guilty’ or ‘blameworthy’ can have different meaningsdependant on the offence. ThePenal Code (Act 574) has explained if such condition happened, it would notconsider as an offense: A, the captain of a steam vessel, suddenly and without any fault ornegligence on his part, finds himself in such a position that, before he canstop his vessel, he must inevitably run down a boat B, with 20 or 30 passengerson board, unless he changes the course of his vessel; and that, by changing hiscourse, he must incur risk of running down a boat, C, with only two passengerson board, which he may possibly clear. Here, if A alters his course without anyintention to run down the boat C, and in good faith for the purposes ofavoiding the danger to the passengers in the boat B, he is not guilty of anoffence, though he may run down the boat C, by doing an act which he knew waslikely to cause that effect, if it be found as a matter of fact that the dangerwhich he intended to avoid was such as to excuse him in incurring the risk ofrunning down the boat C. Beside,there are four mental states5 can bejustify in the Latin Maxim, that is: general intent, specific intent,transferred Malice and constructive intent. Thegeneral intent is talk about the principle of actus reus wherein it seesthe intent of the crime to be committed. For say in rape, sexual penetration isthe deed which is done. Not only that, the specific intent is besides normalintention on caring with the act it is necessary to something in addition tothat of actus reus.
For example, if person breaks into a house withpurpose of theft and in addition to that taking and carrying away is the processadopted. Besides,the transferred Malice also one of the mental states. It stated that in caseswhere 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 thoughthey should be person of attack did not get hurt.
The malice of the actualintended victim sifts for the one who is the victim. The transfer does not takeplace if intent to commit a particular harm is not same. InPembliton 19746, D wasinvolved in a fight right after he ejected from a pub. He threw a stone at thegroup of men he had been fight, he broke the pub window and missed to injureanyone.
The court held that: His “malice” in intending to strike another personcould not be transferred to an intention to break the window, therefore, D wasnot guilty. This case can clearly reflect to the passage above which is malicetransffered. Moreover,constructive intent is the situation that we consider not just the intention ofcommitting harm but we also give attention to the knowledge of the offender ofthe high risk of the injury because of that particular action. In situationwhere a reckless act happens the person who are able to foresees7 thatconsequence are possible because of his conduct but in turns he acts withoutany intention or desire to bring them in action.
There is only probability ofhis seeing and not desires and foresees it. Recklessness is basically “anattitude of mental indifference to obvious risk”8 Wecan observe that in R v Spratt 1991 CA, D causes Actual bodily harm byshooting a 7-years-old girl with an air pistol. He was firing from the windowof his flat, aiming at a target in the yard below. V was playing in the yard Dhad not known she was there. While the court held that: Recklessness asenvisaged in Venna was clearly subjective recklessness (that is, that D foresawthe risk but went ahead regardless), because the judgment in Venna speaks ofrecklessness and intention as being often almost indistinguishable.
(Not Guity)This case can refer to the constructive intent as well. Inthe other hand, in Thabo Meli v R (1954)9,the appellants, in accordance with a prearranged plan, took the victim to a hutwhere they gave him beer. When he was partially intoxicated, they struck him onthe head. When they was believing him to be dead, they rolled his body down acliff to make his death look like an accident. While the victim died later becauseof exposure at the bottom of the cliff. Thus, the Privy Council Held: ” It wasimpossible to divide up what was really one series of act in this way, There isno doubt that the accused set out to do all these act in order to achieve theirplan, and as part to their plan…” They were therefore held guilty of murder. Whilethere may be cases where mental impairment negates the mens reas of thecrime charged, it should be emphasized that this is not the primary way inwhich s.
84 of Penal Code10operates. Rather, a person is exculpated under s.84 on account of his or herlacking the capacity to know the nature of the act or that it was either wrongor contrary to law. Accordingly, it is entirely conceivable for a person tolack this capacity and at the same time possess the requisite mens reaof the crime charged.
For example, the accused may have intended to traffic incontrolled drugs and still successfully plead the s.84 defence if it were shownthat, due to unsoundness of mind, he lacked the capacity to know thedrug-traffiking was wrong or contrary to law.11 Acase which missed this points was the Malaysian High Court decision in PP vJong Chin Chin.12The accused was charged with murdering her young daughter.
Having determined 13thatthe prosecution had proved beyond reasonable doubt that the accused intended tocause death as required for murder under s.300(c) of the Penal Code, the trialjudge turned his attention to the defence of unsoundness of mind. He consideredthe evidence supporting the defence and concluded: ‘…I am in doubt as to whether the accused at the time of inflicting the injurieson the deceased … was capable of knowing and did know the nature of her act orthat what she was doing was wrong or contrary to law. As I entertain such adoubt the element of intention cannot therefore be said to have been provenbeyond reasonable doubt by the prosecution at the end of the whole case.
‘With respect, this statement misunderstoodthe role of the s.84 defence in this case. It would have been far better forthe judge to have left out altogether the reference to intention. Ina nutshell, we can concluded that both actus reus and mens reaare important when we further proceed with reference to the measuring thecriminal liability of a person.
In statutory offences we talk about the crimewhich harm the society and how the criminal liability is when mens reais present in one while absent in another.1 Latin for Lawyers (London: Sweet& Maxwell, 1960)2 101 ER 1103(1798)3Hasbollah Bin Mat Saad and others, Criminal and Constitutional Law in Malaysia:A Comparative Approach, First Edition, Melaka, Pena Hijrah Resources, 2011,p.514Hasbollah Bin Mat Saad and others, Criminal and Constitutional Law in Malaysia:A Comparative Approach, First Edition, Melaka, Pena Hijrah Resources, 2011,p.515Chandrasekharan Pillai K.N, General Principles of Crimina Law.pp-1376Hasbollah Bin Mat Saad and others, Criminal and Constitutional Law in Malaysia:A Comparative Approach, First Edition, Melaka, Pena Hijrah Resources, 2011,p.517 KD Gaur, Criminal Law: Cases and Materials, 5th ed, pp-468 Hudstonv Viney 1921 1Ch 98919541 WLR 22810 Nothingis an offence which is done by a person who, at the time of doing it, by reasonof unsoundness of mind, is incapable of knowing the nature of the act, or thathe is doing what is either wrong or contrary to law.11 PP vRosman bin Jusob & Anor 1995 3 SLR 317 at 32512 19954MLJ 30013 Ibid,at 310-311