Defence And Punishment Of Criminal Conspiracy And Murder Law Essay

Introduction

There are several issues that we can discourse from the inquiry. The first issue is murder that done by A. Therefore the prosecution can raise Section 300 of the Penal Code against A. Harmonizing to Oxford Dictionary, slaying is the offense of killing person intentionally.

The 2nd issue is B and C had the committed dangerous injury. A had suffered a compound break which can be regard as dangerous injury under Section 320 of the Penal Code and the prosecution can raise Section 322 of the Penal Code against B and C. Harmonizing to Oxford Dictionary, dangerous injury is defined as to do really serious physical hurting to person and to earnestly wound person.

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The 3rd issue is B and C both had condemnable confederacy as defined under Section 120A of the Penal Code.Criminal confederacy is defined as an understanding between two or more individuals to make an illegal act or making a lawful act by improper agencies.

In order for the prosecution to obtain a successful strong belief, the prosecution must turn out that accused parties had committed the actus reus and the work forces rea beyond sensible uncertainty. The actus reus is the guilty act and work forces rea is the guilty head of the accused at the clip the offense was carried. This was clearly established in a celebrated instance, which is Woolmington v Director of Public Prosecutor[ 1 ].

There are several defense mechanisms that applicable in this inquiry. The possible defense mechanism that A could raise is the defense mechanism of aggravation. However, based on the egg-shell skull regulation, A may non trust on the fact that B had a thin skull which contributed to his ain decease, A is still apt for B ‘s decease. The egg-shell skull regulation is a legal philosophy that says the offender takes the victim in the status he or she finds him[ 2 ]. The possible defense mechanism that C could raise is the defense mechanism of accident under Section 80 of the Penal Code.If A succeeds in the defense mechanism of aggravation, he could be punished under Section 304 of the Penal Code for blameworthy homicide and if he failed to raise this defense mechanism, he could be punished under Section 302 for slaying. As for C, if there is no defense mechanism available for him, he could be punished under Section 325 of the Penal Code.

Condemnable Conspiracy

Condemnable confederacy was defined as an understanding between two or more individual to make an illegal act or a lawful act by improper mean. Based in the instance of Boots v Grundy[ 3 ], it stated that “ A confederacy exists when two or more combine to make an improper act or to make a lawful act by improper agencies. No confederacy is… known to the jurisprudence which has non for its object the achievement of an improper act ( non needfully a condemnable act ) or which does non affect the usage of improper agencies ” . In Malaysia, the condemnable confederacy is governed under subdivision 120 A and 120B of the Penal Code.

Based on the facts, we have to look on whether the action by B and C is consider condemnable confederacy as both of them agreed to throw A in the air in the cover. In turn outing a condemnable offenses, we have to turn out two most of import elements of the instance, work forces rea and actus reus. Mens rea is defined as the guilty head and actus reus as the unlawful act.

First, to turn out the B and C action considers condemnable confederacy we will hold to turn out the actus reus. For actus reus, we have to turn out an understanding to perpetrate the offense and in add-on one of the party in the understanding had committed an open act. From the facts, A had been a bully victim for B and C in the school and subsequently B and C had agreed to throw A in the air in a cover. Then, they force A into the cover although A protested. This had adequate to turn out the actues reus.

In work forces rea, we need to turn out the meeting of head and the accused individual must be beyond phase of dialogue and they must hold intended that their understanding be carried out have the similar purpose. We can mention to the instance of Ang Ser Kuang[ 4 ]as it is sufficient if the parties have reached an meeting of head although they do non cognize all the inside informations involved in the program. B and C had agreed to make the act and subsequently they carried out the act, therefore it is adequate to turn out that they had come to the meeting of head and they holding same purpose to carried out the understanding.

From above, both actus reus and work forces rea had been proven. Now we have to look on whether the act by B and C is consider illegal in the s.120A. As A had protested when B and C forced A into the cover and tossed him to the air. Therefore the act by B and C will be considered as illegal act.

However, there is still an issue whether C is still apt for the condemnable confederacy as B had dead. In the DPP V Shannon[ 5 ], the instance stated that it is sufficient for the prosecution to turn out that there are two or more individuals guilty of confederacy even though the other individual involved may be dead. Therefore, C will be still apt no affair B had dead.

Dangerous Hurt

Dangerous injury is defines under subdivision 320 while voluntarily doing dangerous injury is under subdivision 322 of the Penal Code. Based on the facts, the compound break that suffered by A can be falls under subdivision 320 ( g ) where it stated “ break or disruption of a bone ” . The illustration instances for dangerous injuries are PP v Lee Hor Sai[ 6 ]and Gangaram v State of Rajasthan[ 7 ].

To turn out the offenses of dangerous injury we will hold to look on the actus reus and work forces rea. For dangerous injury, the actus reus is the action of doing “ dangerous injury ” . From the facts, when B and C tossed A into the air and so due to misconstruing, they failed to catch A and caused him hit the land and A suffered the compound break. Therefore, it is obvious that A suffered compound break due to B and C ‘s action.

The 2nd component that we need to turn out is mens rea. In work forces rea, we will necessitate to turn out the purpose to do dangerous injury or cognizing that dangerous injury is likely to happen. Intention to do dangerous injury is really of import to be prove, because if a individual who has caused dangerous injury but merely intended hurt, and did non cognize that dangerous injury was likely, will non be guilty of voluntarily doing dangerous injury[ 8 ]. The right strong belief will be one of voluntarily doing injury[ 9 ]. The fact shall be refers to happen whether B and C had the purpose to do dangerous injury to A. B and C forced A into the cover and tossed him into the air. As a layperson, they should cognize that there is a danger to flip person to the air while the cover is covering the victim. They will hold the common sense to cognize that what will go on if a victim falls straight from the air to the floor. The victim will non able to protect himself if anything happen as he is being covered by the cover. So, we can see that B and C shall cognize that the dangerous injury will probably to happen from their action.

Since, both work forces rea and actus reus had been proven, both B and C will be apt to the dangerous injury. However, as B had dead, he can non be sued for doing dangerous but C will still liable for it.

Murder

Murder is defined as the violent death of a human being by a sane individual, with purpose, maliciousness aforethought ( anterior purpose to kill the peculiar victim or anyone who gets in the manner ) and with no legal alibi or authorization[ 10 ]. Murder is governed by subdivision 300 in the Penal Code. From the facts, it is clear that B had died. Therefore the subdivision 300 will be raised up if beyond sensible uncertainty able to be proved that A hits B with the purpose or with the cognition to do decease as in the instance of Che Omar Mohd Akhir V PP[ 11 ].

As usual, work forces rea and actus reus have to be proven. As A hits B ‘s caput with the cricket chiropteran and caused B died from the blow, the actus reus is really obvious from the whole action.

In work forces rea, we need to demo that A had the purpose or cognition for doing decease. From the facts, A hits B ‘s caput after he was dropped to the floor. If A had purpose to kill B from the beginning, he does non necessitate to wait until he was forced into the cover and dropped to the floor merely hits B. Therefore, there is no purpose and subdivision 300 ( a ) , ( B ) and ( degree Celsius ) can be excluded. In subdivision 300 ( vitamin D ) , it required the cognition from the accused to perpetrate the offense. Section 300 ( vitamin D ) stated the accused will be apt if he knows that his action may do decease or bodily hurt that probably to do decease. Illustration ( vitamin D ) under subdivision 300 explains the significance of the subdivision ( vitamin D ) . For subdivision 300 ( vitamin D ) , we can mention to the instance of Tan Cheng Eng William V PP[ 12 ]. In this instance, the accused chased his ex-girlfriend with another cat and caused a motorcyclist dice immediately. Section 300 ( vitamin D ) is applied if the populace prosecuting officer has the grounds shows that the accused had knowledge on what will go on although he did non intent to do decease. When A is angry and scared, he picked up the cricket chiropterans and hits on B ‘s caput. He can hit any portion of B ‘s organic structure such as manus or leg but he did non. He aimed B ‘s caput. As a normal individual, everyone knows that it is really unsafe to hit person on their caput but A still continue with it although he had the cognition sing it. Therefore, work forces rea is proven from the account above.

Since, the actus reus and work forces rea is proven therefore A will be apt for the strong belief of slaying under subdivision 300.

Defense mechanisms

Defense mechanism is needed to cut down the sentences for the accused. Defense mechanism in under chapter IV in the Penal Code. There are two types of exclusion under Penal Code, general and particular exclusions. While for defense mechanisms there are besides two types, complete and partial defense mechanisms. If accused successful pleads on of these defense mechanisms, he would be found non guilty of the offense in the inquiry.

In the condemnable confederacy, there is wholly no inquiry about whether there is any defense mechanism for the offense. Both of the parties enter the understanding without any involuntarily. Therefore C will be apt for the offense.

For the offense of dangerous injury, the accused can raise up the defense mechanism of accident. Accident is under subdivision 80 of the Penal Code. If the accused able to demo the unlawful Acts of the Apostless is done with something that non foreseen and done without any condemnable purpose or cognition and show that he had carried out whatever he was making in a lawful mode and he has exercising attention and cautiousness. The illustration of instance where the defense mechanism of accident is being raise up is R V Ong Choon[ 13 ]and Kong Poh Ing V PP[ 14 ]. In R V Ong Choon, the accused tried to halt an improper battle and accident took topographic point. In Kong Poh Ing V PP, the accused tried to halt the victim from perpetrating self-destruction but end up accident took topographic point. From the state of affairs described, B and C had the purpose to catch A after A was tossed to the air. However, due to the misinterpretation of B and C, they failed to make so. Besides, as the child around the age of 13 and 14 they can be really playful. They merely want to seek something new with their friends but non with the purpose to ache them. Besides, when B and C were waiting to catch A and they put A into the cover to cut down the hurt that may happen, this show that they had exercising attention and cautiousness to forestall A to ache. However the unfortunate happened. So, this defense mechanism can be raised up to cut down the sentences for C.

In slaying, the accused can raise up the defense mechanism of aggravation. Aggravation is explains under the exclusion ( 1 ) in subdivision 300. Aggravation is under the particular exclusion and it is applicable on slaying, injury and dangerous injury merely. To raises defense mechanism of aggravation, the defense mechanism council has to demo the “ balance of chance ” that victim provoked him and this was grave. Later the tribunal will make up one’s mind whether the aggravation act was sedate or non. Besides, the defense mechanism council has to turn out that the aggravation causes the accused to lost-control and he acted all of a sudden. If there is grounds that his actions were premeditated, or that he had been able to compose himself between the aggravation and the violent death[ 15 ], so the defense mechanism is non likely to be succeeded. The longer the period between the provocative act and the violent death, the easier for the public prosecuting officer to turn out the accused had cooled down and hence he did non move all of a sudden. However, there is no rigorous demand that the clip interval must hold been short[ 16 ]. This can be explained in the instance of PP v Juminem[ 17 ]. In the instance of R v Ibrams and Gregory[ 18 ], it is established that there is the component of abruptness and a impermanent loss of self-denial which has been subjectively determined. The suspects had been repeatedly bullied by the victim. They planned within a hebdomad before that they attacked the victim in his slumber, to avoid farther intimidation. The victim died as a consequence of the onslaught that was intended to interrupt the victim ‘s weaponries and legs. The justice stated that there is no aggravation on the dark when the slaying is happened. Therefore, the accused is apt for slaying. Back to the state of affairs of A, it is a spot similar with the instance of R v Ibrams and Gregory where the accused are the victim of the tough. However, A onslaught B instantly with the cricket chiropteran when he was dropped on the floor and caused compound break. A was frightened and angry on the clip of onslaught. The facts are clear plenty for A to raises up the defense mechanism. The chance for A to win in this defense mechanism will be high.

Punishment

The penalty for the offense of condemnable confederacy is under subdivision 120B. In 120B ( 1 ) , it stated that a party to a condemnable confederacy to perpetrate an offense is punishable with decease or imprisonment non less than two old ages. While in 120B ( 2 ) it stated that a party to an condemnable confederacy other than a condemnable confederacy will be punished non transcending six months of imprisonment or with all right or both. Since C is apt for the offense, he will be punished under this subdivision.

For the dangerous injury, the penalty is under subdivision 325 in the Penal Code. Those who convicted the offense will be punished with imprisonment for a term which may widen to seven old ages and besides apt for mulct. If the defense mechanism was allowed for C, he will be apt for the strong belief of doing hurt to A. For the penalty of voluntarily doing hurt, the accused can be punished with imprisonment for a term which may widen to one twelvemonth or happen that may widen to two thousand ringgits or both.

In slaying, the penalty will be under subdivision 302 and the accused will be punished for decease. If A defense mechanism of aggravation win, he will be apt for blameworthy homicide non slaying. Then the penalty will hold to mention to subdivision 304. In subdivision 304 ( a ) the accused can be punished for imprisonment extend to thirty old ages and apt to ticket if there is purpose when he committed the offense. While in subdivision 304 ( B ) the accused will be punished for imprisonment extend to ten old ages, or with all right, or with both if there is merely cognition when he committed the offense. Section 304 ( B ) is more applicable to A ‘s state of affairs if his defense mechanism win.

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