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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 require 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
thr purpose of preventing or avoiding other harm to person or property. 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 on 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 hard 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 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.

          If
we speak generally with reference to “Mens Rea” then the commentators accept
for four mental states5  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
general intent and specific intent, the transferred Malice also one of the
mental states. It state 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 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. 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 Code 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.10 A
case which missed this points was the Malaysian High Court decision in PP v
Jong Chin Chin.11 The
accused was charged with murdering her young daughter. Having determined 12that
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 PP v
Rosman bin Jusob & Anor 1995 3 SLR 317 at 325

11 1995
4MLJ 300

12 Ibid,
at 310-311

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