INTRODUCTION TO CRIMINAL LAW

Key cases: • Christian and others v. The Queen [2006] UKPC 47; [2006] All ER (D) 358 (Oct) (The Pitcairn
Islands case)
Questions
[Link] how a criminal charge is different from a civil suit.
Criminal charge is brought by the state or public authority R(the crown, the king) Crown prosecutor
service represent the crown decide whtether the wrongdoer need to be in the court against an individual
or group that accused of committing an offence against the society or public including murder, theif,
manslaughter and other. The aim is to punish the wrongdoer, for example fine and imprisonment or
death sentences. The prosecution must prove the defendant's guilt beyond a reasonable doubt. The
wrongdoer will be guilty when he committed any criminal offence

In contrast, a civil suit is usually between private parties, typically one person claiming to have been
wronged by another. The aim is to protect individuals from harm and resolve disputes between private
parties put the person back to the original position. The plaintiff must prove their case on a balance of
probabilities against the defendant. The defendant will be liable for civil wrong. For example, breach of
contract, negligence, defamation and other.

2. Which do you think should be the point of criminal law – deterrence, retribution, or rehabilitation? Give
reasons.
For me, the point of criminal law is to rehabilitate the wrongdoer / person who committed the crime,
although is difficult, it aims to transform offender into responsible members of society thereby prevent
future crimes and promoting long-term public safety. On the other hand, deterrence and retribution often
fail to address the root causes of criminal behaviour. For deterrence, although deterrence seems to be
the main point of criminal law because the aim is to prevent crime through fear of punishment, many
offenders do not think they’ll be caught, especially in crimes of passion (murder or assault in a sudden
burst of emotion such as anger, jealously or heartbreak.)or opportunity.(stealing a wallet left unattended,
occurs when an offender seizes an unexpected chance to commit a crime often due to a lack of security
or oversight)
3. What is the principle of legality?
The principle of legality is means that no one can be convicted of a crime or punished unless there’s a
clear, previously published law defining that crime and its punishment. This principle ensures that
criminal law is not arbitrary or retroactive, protecting individuals from being punished for action that
were not criminal at the time they committed. Criminal laws cannot be used to punish action that were
legal when they were committed but later became criminal. Laws defining crimes must be clear and
precise, providing a reasonable degree of certainty so that individuals have the chance to know the law
and avoid violating it. Cannot be interpreted too broadly or in a way that goes beyond the intent of the
law.
4. Discuss the case of Christian and others v. The Queen [2006] UKPC 47. Do you think the
decision was fair?

In this case, the appellants were convicted of rape, incest, and indecent assault in Pitcairn, a remote
island, under the Sexual Offences Act 1956, a law not published or widely known on the island. The
Judicial Committee of the Privy Council dismissed the appeals, ruling that the common law crimes of
rape, incest, and indecent assault still applied, despite the lack of publication of the Act. The court
upheld the fairness of the trial, finding the appellants had knowledge of the criminality of their actions.
The decision can be considered fair in terms of substantive justice While the decision emphasizes
upholding the rule of law and protecting victims, the fairness of the decision can be questioned due to
the lack of legal notice and the isolated nature of the community, which may not have had full access to
the law. Thus, while the conviction was substantively just, procedural fairness could be challenged.

5. Would the codification of the criminal law in England and Wales be an improvement over its
current state? Make reference to the Malaysian Penal Code in answering. Codifying the criminal law in
England and Wales would improve its current state by increasing clarity, consistency, and accessibility.
At present, many offences such as murder and manslaughter remain common law offences without
statutory definitions, relying instead on judicial interpretation, as seen in Morris [1951] and approved in
Verrier v DPP [1967]. This creates uncertainty and allows judges broad discretion in sentencing,
especially for common law offences where no statutory maximum penalty exists, potentially resulting in
disproportionate punishments. In contrast, Malaysia’s Penal Code offers a codified structure where
offences and their penalties are clearly laid out, providing greater certainty to the public. However, even
the Malaysian system has gaps, such as the insufficient treatment of corruption or misconduct by
politicians and police, where more serious penalties may be needed. Therefore, codification in England
and Wales would help establish a clearer, more transparent legal system while also allowing for targeted
reforms where necessary, as the Malaysian experience shows.

ELEMENTS OF A CRIME I
Key cases:
Airdale NHS Trust v. Bland [1993] AC 789
Miller [1983] 2 A.C.161
Bratty [1963] AC 386
Questions
1. Discuss if the law regarding omissions in the UK and Malaysia is satisfactory.
An omission means failure to act when you had legal duty to do something. In criminal law, it imposes no
obligation on persons to act so as to prevent the occurrence of harm or wrongdoing but save for
exceptional circumstances. Omission will be considered as a crime if there is an express offence under
an act or a legal duty to act. Express offences means that the definition of the offence specifies an
omission to act . For examples, section 24A Theft Act 1968 he dishonestly fails to take such steps as are
reasonable. Other than that, an omission is a crime where there is a legal duty. Duty arising from holding
a public office Duty arising out of contract Duty arising from relationship Duty arising voluntarily Duty
arising from own acts. The law regarding omission in the Uk and Malaysia is not satisfactory. No
1. More areas of legal duty need to be included In the UK, the scope of omission could be
developed further as there are only certain fixed categories with no room for development or
expansion
Example: Drug dealer with druggies
2. There is no clear authority on how much of a risk a person under a duty to act can be expected
to run in order to perform that duty,but there can be no doubt that a common law duty requires
reasonable steps to be taken to perform it (reasonableness being assessed in the light of the
circumstances, including that person’s age and other relevant characteristics, and any risks to
that person or others involved, but excluding inconvenience or expense).
3. In Malaysian position, the scope of omissions is too limited as it is only provided for under the
Penal Code.

2. Discuss if D has a legal duty to prevent harm/commission of a crime in the following scenarios
(consider the law in England & Wales and in Malaysia):-
A. John buys some drugs from D. John then gives it to V who self-administers it. V begins to over-dose
and John in his panic brings V to D. D refuses to help and V dies.
. D creates the dangerous situation / duty arising from his own acts 🡪 provide drugs to John John gives it
to V and V overdosed 🡪 John is the one created dangerous situation 🡪 duty arising from John’s act 🡪 John
has the duty to seek for medical help.D refuses to help did not amount to criminal offence 🡪 D has no
duty
1.R v Khan & Khan [1998] (not appliable)
• In COA, Khan & Khan are acquitted.
• Appeal allowed because direction of judge gave to jury is wrong – conviction is not safe
– acquitted the accused.
• The judge’s task was simply to rule whether a duty of care could arise on the facts,
leaving it to the jury to decide in the light of the judge’s direction whether it actually did arise
• In principle, the latter is preferable; it is normally the jury’s function to determine
whether or not an element of an off ence is proved (albeit on the basis of a direction on the relevant law
from the judge).
2.R v Evans [2009]
• D provided drug to the V, half-sister. V overdosed. The court held that there was a duty
arose because D created a dangerous situation by providing drugs to V.
• D failed to seek medical assistance on discovering that V had overdosed
Answer:
arguable too remote for D to act D has no duty: D did not know/foresee that John will give to V and
overdose 🡪 else the maker of drugs will be found guilty also if D selling dangerous drugs can be charged
D know that the drugs will cause the victim to overdose. John has duty to act, no correct answer, D can
be liable for creating a dangerous situation

B. D is a life saver on duty who is unhappy by V’s reckless use of a jet ski causing complaints from other
swimmers. D sees V lose control and falls into the water. Although V was
waving for help, D ignores him. V drowns.
• Duty arising under a contract 🡪 Assume D is employed by the company managing the
jet ski to be life saver
• Duty arising from holding public office 🡪 employed by the government
• Duty arising voluntarily 🡪 wear swimsuit and stand there, know people relied on him
• D has a duty owed to the user of jet ski even though the contractual obligation was only
owed to the jet ski company.
• R v Pittwood: D, a level-crossing keeper, failed in breach of his contract of employment
to close the gate when a train was approaching with the result that someone was killed on the crossing.
D was convicted of manslaughter because D failed to perform a duty arising out of a contract and that
that duty could be owed to road users even though the contractual obligation was only owed to the
railway company.

C.D meets her husband while out for a jungle stroll who tells her that he just pushed their nephew, V,
down a ravine. V is 3 years old and his parents are away for a holiday so V was staying with D for the
time being. D sees V in the ravine, crying but she walks away. V eventually dies of over-exposure.
 • Duty arising voluntarily 🡪 D assumes the responsibility voluntarily and V’s parents relied
on it
Instan [1893]
• D lived in V, her auntie’s property. D did not provide V with any food and sustenance
and did not ring for any medical help for V when she felt sick. V died.
• D was found guilty of manslaughter because D took V’s money to purchase food items
for her own and continue living in the property when V was sick.
• The court held that a contract and undertaking should be implied from such
circumstances where two people agreed to live together for their mutual benefit.
• Duty arising from relationship – auntie and nephew husband and wife have the duty to
act
Gibbins and Proctor (1918)
• Gibbins as a father (blood related) and Proctor as a stepmother (non-blood related) have
duty to look after the child. They omitted to feed the child and the child starved to death.
• They are found guilty of murder.
• Although the child did not belong to Proctor biologically, she also has a duty because
she took money for food from Gibbins which could have been used to feed the victim.
• Duty arising from contract 🡪 D take care of V and V’s parents pay D 🡪 contractual
obligation
Duty arising from relationship 🡪 Guardian of child when parents are not around

3. Is the definition of automatism in Bratty [1963] AC 386 satisfactory?

The definition of automatism in Bratty v Attorney-General for Northern Ireland [1963], given by Lord
Denning, describes it as an act done by the muscles without control of the mind, such as a spasm or
convulsion, or an act committed while unconscious, like during sleepwalking. While this definition
appears broad, the courts have applied it narrowly, setting a high threshold for success. In Bratty, the
defendant claimed he killed the victim while experiencing a blackout due to psychomotor epilepsy, but
the court ruled that since the cause was internal, it fell under the defence of insanity, not automatism.
This created confusion between sane and insane automatism and highlighted the unsatisfactory nature
of the definition. The case shows that unless the defence provides clear evidence of involuntary action
due to an external factor, the defence of automatism will not go to the jury, raising concerns about
fairness and the outdated understanding of mental health in criminal law.

4. Is automatism a defence in Malaysia?

Yes, automatism is recognised as a defence in Malaysia, although it is not expressly defined in the Penal
Code. It operates under the general principle that criminal liability requires a voluntary act, as suggested
by Section 33, and that involuntary actions—where there is no control of the mind over the body—may
negate the necessary mens rea. If the automatism is caused by an internal factor, such as a mental
illness, it may be treated under the defence of insanity in Section 84. However, if caused by an external
factor, such as a physical blow or a drug reaction, it may amount to non-insane automatism and lead to a
full acquittal. While Malaysian case law on automatism is limited, courts often refer to English common
law for guidance, making it a valid but rarely used and narrowly interpreted defence.

In the following scenarios, D alleges he was not conscious of what he is accused of doing.
Discuss if D can raise the defence of non-insane automatism or not.:-
D was hurt that his girlfriend had slept with V. He went and punched V.
• No evidence the act was caused by involuntary external physical force
• unless there is evidence showing D had some instability of mind, she had slapped V
voluntarily for sleeping with her boyfriend
• No evidence the act was due to automatism either - unless there is evidence showing
the slap was done by the muscles without any control of her mind as a spasm or reflex, or the act was
done when she was unconscious like if she were sleepwalking. The question is too vague to elaborate if
she were prone to violent aggression.
• Hence, the actus reus of slapping V was voluntary
• Rabey [1980]
D was suffering from clinical depression and was supposed to take medication for it. He
forgot to take his medication and went for a drive. He ran over a girl.
Would your answer differ is D took too much medication instead?
• Insane automatism – D forgot to take his medication because of clinical depression
• Facts: took medication and cause him not conscious – non-insane automatism –
acquitted
Broome v Perkins
• D was in hypoglycaemic state while driving home - hit another car - claimed he couldn't
remember anything from the journey - medical reports showed it was possible for him to repeat his
familiar drive home - he can, in his hypoglycaemic state, steer his car, although not that well
• D found guilty despite his suffering from hypoglycemia. D only exercised control
occasionally during his drive home - meaning there was certain control in his actions。 This is contrary to
automatism as it requires a total loss of control
Hennessy:
 • D drove motorcar when he was actually disqualified from driving - but argued his
hyperglycaemia was caused by stress and depression
• The court held that his involuntary act was not caused by external factor as his lack of
insulin wasn't caused by his own actions.
• His hyperglycaemia was internally triggered bc of diabetes.
• Applying Hennessy, D’s clinical depression was internally triggered. He was at fault for
not taking his medication before his drive, hence the recklessness aspect, but he could use insane
automatism as a defence at court and his actus reus was involuntary.
• D, a diabetic, was driving while disqualified. His defence was that he had failed to take
his proper dose of insulin because of stress, anxiety and depression, and consequently was suffering
from hyperglycaemia and in a state of automatism when the offences occurred.
• The trial judge ruled that, since D’s alleged automatism was due to a disease of the
mind, the defence (if any) was one of insanity. At this D changed his plea to guilty. The Court of Appeal
held that the judge’s ruling was correct since the hyperglycaemia caused by diabetes (a disease) not
corrected by insulin was a disease of the mind and the stress, anxiety and depression, even if caused by
external factors, were not in themselves external factors and could not override the effect of the diabetic
shortage of insulin.
• Hennessy can be contrasted with Bingham, where the Court of Appeal held that
evidence that a diabetic had been suffering from hypoglycaemia (deficient blood sugar level caused by
too much insulin or failing to eat properly after taking insulin to counteract it) was evidence of non-
insane automatism.
D was holding a hot cup of tea when a cockroach flew on him and he spilt the tea on V
causing minor scalding.
• Non-insane automatism – not found guilty and acquitted
• D spilt the coffee on V was a reflex action triggered by the cockroach flying toward him
– involuntary actus reus – non-insane automatism
Lord Denning in Bratty
• an act which is done by the muscles without any control by the mind such as a spasm, a
reflex action, or a convulsion
• an act done by a person who is not conscious of what he is doing such as an act done
whilst suffering from concussion or whilst sleepwalking

D was sharing a bed with his cousin. In the middle of the night, he kicked his cousin off the bed, causing
minor injury.
• D kicked his cousin off the bed while he was asleep, there was an absolute lack of
control/consciousness and the actus reus was involuntary – insane automatism
Burgress [1991] – sleepwalking
Lord Denning in Bratty
• an act which is done by the muscles without any control by the mind such as a spasm, a
reflex action, or a convulsion
• an act done by a person who is not conscious of what he is doing such as an act done
whilst suffering from concussion or whilst sleepwalking.
2 answers: A-G’s Reference (No 2 of 1992) [1994]
• the act of a driver who unintentionally presses the accelerator, intending to press the
brake, is not done in a state of automatism.
• Despite the fact that in one sense he is not conscious of what he is doing, there is not a
loss of consciousness in the required sense.
Under cl 33 of the draft Criminal Code Bill:
• D would be in a state of automatism if his act occurred while he was in a condition
depriving him of effective control over it.