Topic 5 - Elements of a Crime IV (Recklessness, Knowledge, Rash, Negligence)
Mens Rea - Mental Element
- The sorts of mental state:
1) Intention
2) Knowledge
3) Recklessness
4) Negligence
2) Knowledge
- Having knowledge regarding the circumstances
- Example of crimes where the mens rea is knowledge:
- Offense of assisting offenders - S.4(1) CLA 1967
- “Where a person has committed an arrestable offense, any other person
who, knowing or believing him to be guilty of the offense or of some other
arrestable offense, does without lawful authority or reasonable excuse
any act with intent to impede his apprehension or prosecution shall be
guilty of an offense”
- This offense is where the mens rea is of knowledge - because if you know
someone is doing an offense, and you assist, then it is an offense in itself
- You assist, with the knowledge knowing the accused is guilty
- Offense of handling stolen goods - S.22(1) Theft Act 1968
- “A person handles stolen goods if (otherwise than in the course of the
stealing) knowing or believing them to be stolen goods he dishonestly
receives the goods, or dishonestly undertakes or assists in their retention,
removal, disposal or realization by or for the benefit of another person, or
if he arranges to do so.”
- If you dishonestly receive the goods (actus reus) and knowingly sell it
even though you know it was stolen (knowledge as mens rea), then it is
an offense
- If you thought it was genuinely not a stolen good, then it would not be an
offense
Knowledge - Malaysian Law
- Not defined in the Penal Code
- Similarly, the offense of dishonestly receiving stolen property - S.411
- “Whoever dishonestly receives or retains any stolen property, knowing or having
reason to believe the same to be stolen property, shall be punished with
imprisonment for a term which may extend to five years or with fine or with
both…”
- PP v Koo Pui Fong [1996] 1 SLR(R) 734
- The court defined knowledge as “…personally aware that it exists or is almost
certain that it exists…”
, - Offense of murder - S.300 PC
- The mens rea could also be knowledge as:
- If the act by which the death is caused is done:
a) with the intention of causing death;
b) with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the
harm is caused;
c) with the intention of causing such bodily injury to any person,
and ... is sufficient in the ordinary course of nature to cause death;
d) with the knowledge that the act is so imminently dangerous that it
must in all probability cause death, or such bodily injury as is likely
to cause death.
- Knowledge is sufficient for mens rea under the Malaysian Law
Reform - Knowledge
- Yeo Morgan Chan (YMC) suggests that this should be the definition of
knowledge:
- A person knows something is likely if he or she realizes or believes that it
is likely to happen
- This overlaps with the mens rea of intention - a person intends something if he or
she means to bring it about and knows that it is absolutely certain to occur
- This is unlike English Law, where knowledge is not so much about foreseeability
as this is covered in oblique intention (which Malaysian does not have)
3) Recklessness
- Recklessness: if the defendant foresees a risk of harm and unreasonably takes that
risk, it is said to be reckless. If the defendant is voluntarily intoxicated at the time of the
offense, he will be found to be reckless even if he did not foresee the harm.
- Not all risk-taking is to be considered reckless - just because you take a risk,
does not mean for it to be reckless
- There are circumstances where the risk you took is considered to be reasonable
- Cunningham subjective test:
- A person is reckless when:
- There’s a risk of a harmful consequences which is not negligible
- Having recognised that there was such risk, he nevertheless goes on to
do it
- Caldwell objective test:
- A person is reckless when:
- There’s a risk of a harmful consequences which is not negligible
- Having recognised that there was such risk, he nevertheless goes on to
do it OR
Mens Rea - Mental Element
- The sorts of mental state:
1) Intention
2) Knowledge
3) Recklessness
4) Negligence
2) Knowledge
- Having knowledge regarding the circumstances
- Example of crimes where the mens rea is knowledge:
- Offense of assisting offenders - S.4(1) CLA 1967
- “Where a person has committed an arrestable offense, any other person
who, knowing or believing him to be guilty of the offense or of some other
arrestable offense, does without lawful authority or reasonable excuse
any act with intent to impede his apprehension or prosecution shall be
guilty of an offense”
- This offense is where the mens rea is of knowledge - because if you know
someone is doing an offense, and you assist, then it is an offense in itself
- You assist, with the knowledge knowing the accused is guilty
- Offense of handling stolen goods - S.22(1) Theft Act 1968
- “A person handles stolen goods if (otherwise than in the course of the
stealing) knowing or believing them to be stolen goods he dishonestly
receives the goods, or dishonestly undertakes or assists in their retention,
removal, disposal or realization by or for the benefit of another person, or
if he arranges to do so.”
- If you dishonestly receive the goods (actus reus) and knowingly sell it
even though you know it was stolen (knowledge as mens rea), then it is
an offense
- If you thought it was genuinely not a stolen good, then it would not be an
offense
Knowledge - Malaysian Law
- Not defined in the Penal Code
- Similarly, the offense of dishonestly receiving stolen property - S.411
- “Whoever dishonestly receives or retains any stolen property, knowing or having
reason to believe the same to be stolen property, shall be punished with
imprisonment for a term which may extend to five years or with fine or with
both…”
- PP v Koo Pui Fong [1996] 1 SLR(R) 734
- The court defined knowledge as “…personally aware that it exists or is almost
certain that it exists…”
, - Offense of murder - S.300 PC
- The mens rea could also be knowledge as:
- If the act by which the death is caused is done:
a) with the intention of causing death;
b) with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the
harm is caused;
c) with the intention of causing such bodily injury to any person,
and ... is sufficient in the ordinary course of nature to cause death;
d) with the knowledge that the act is so imminently dangerous that it
must in all probability cause death, or such bodily injury as is likely
to cause death.
- Knowledge is sufficient for mens rea under the Malaysian Law
Reform - Knowledge
- Yeo Morgan Chan (YMC) suggests that this should be the definition of
knowledge:
- A person knows something is likely if he or she realizes or believes that it
is likely to happen
- This overlaps with the mens rea of intention - a person intends something if he or
she means to bring it about and knows that it is absolutely certain to occur
- This is unlike English Law, where knowledge is not so much about foreseeability
as this is covered in oblique intention (which Malaysian does not have)
3) Recklessness
- Recklessness: if the defendant foresees a risk of harm and unreasonably takes that
risk, it is said to be reckless. If the defendant is voluntarily intoxicated at the time of the
offense, he will be found to be reckless even if he did not foresee the harm.
- Not all risk-taking is to be considered reckless - just because you take a risk,
does not mean for it to be reckless
- There are circumstances where the risk you took is considered to be reasonable
- Cunningham subjective test:
- A person is reckless when:
- There’s a risk of a harmful consequences which is not negligible
- Having recognised that there was such risk, he nevertheless goes on to
do it
- Caldwell objective test:
- A person is reckless when:
- There’s a risk of a harmful consequences which is not negligible
- Having recognised that there was such risk, he nevertheless goes on to
do it OR
