DEFENCE OF UNSOUNDNESS OF MIND

1st Element – At the time of doing the act

 KOFRI MUSTAFAR v PP

The crucial time that the accused is said to be suffering from unsoundness of mind,
whether temporary or permanent, is the time of the commission of the offence.

 PUBLIC PROSECUTOR v MUHAMAD SUHAIMI ABDUL AZIZ

F: The accused was charged for the murder of his wife under section 302 of the Penal
Code at their house in Kuala Lumpur. The post mortem showed that she had suffered
26 stab wounds. Accused stated that he was feeling depressed and that his mind was
full of negative thoughts.

H: Medical evidence showed that at the time of the incident, the respondent was of
unsound mind, he was suffering from a psychotic disease which symptoms include
auditory and visual hallucinations. He did not know that his action was wrong in law.
Based on the defence evidence and on prosecution’s failure to lead evidence in
rebuttal, the Federal Court agreed with the trial judge’s acquittal of the
accused/respondent on the charge of murder on the ground of insanity under section
84 of the Penal Code

 RE PADALA SURYANARAYANA
H: The fact that at the time when the accused was examined he was mentally sound
may not mean the accused must have been of sound mind at the time of commission
of the offence.

2nd Element – By reason of unsoundness of mind

 Includes disease of the mind and mental deficiencies

H: A were under delusion and did not know nature of act / it was wrong / contrary to
law at the time the act was done

 RE PAPPATHI AMMAL
H: The unconscious state known as sleepwalking and somnambulism, if proved,
will constitute that unsoundness of mind attracting the application of section 84 of the
Indian Penal Code

3rd Element - Incapable Of Knowing Nature of the Act

 Physical nature & quality of the act, not moral / legal aspects.
 The capacity to know is different from what one knows.
 LEE AH CHYE v PP
 The Court in interpreting s 84 stated there must be a certain state of mind, incapacity
of knowing nature of act or incapacity of knowing it is wrong, which must exist by
reason of unsoundness of mind

3rd Element - Incapable of Knowing Wrong or Contrary to Law

 Even if the accused did know the nature of his act, for example killing, he can still raise
the defence if by reason of unsoundness of mind he is incapable of knowing that his
act was wrong or contrary to law
 SHIVRAJ SINGH v STATE OF MADHYA PRADESH

The word ‘wrong’ cannot be taken to mean contrary to law. Both are different in
nature.

 R v WINDLE
F: The appellant (W) was convicted of murdering his wife. His wife had regularly spoke
of committing suicide and doctors suggested that she was certifiably insane. Upon
arrest, W said to the police: “I suppose they will hang me for this?”
H: It must not consider whether an act is morally right or wrong but only whether it is
lawful or unlawful. The M’Naghten rules applied to all cases of insanity, whatever the
nature of the insanity or disease of the mind. In the rules, the word “wrong” means
contrary to law. In the present case, accused was clearly aware that what he was doing
was contrary to law.

Disjunctive Approach – only 1 element needed

 JUSOH v PP
F: Appellant was an elderly man who went on to live with his half-brother and was well-
treated even though he did not work. He suddenly ran amok and slashed to death his
sister in law and two children, and went on to kill another stranger. There was no motive
for the killings. Medical witness gave evidence he was suffering from mania and though
he knew what he was doing, he did not know that it was wrong.
H: There was no motive of the killings and the facts showed that to the ordinary man
this would prompt him to say that “it looks like the work of a madman”. Appeal
upheld. A disjunctive view was taken as no mention was made of the other
element ‘contrary to law’. It is sufficient to establish insanity under s.84 for the
accused merely to show that he did not know that what he was doing was wrong.
 ASHIRUDDIN AHMED v KING
Disjunctive view was taken and the appellant was held incapable of knowing that his
act was ‘wrong’.
 PP V ROZMAN BIN JUSOH

H: it was accepted as evidence that the accused was of subnormal intellect, borderline
IQ and easily manipulated by others. He could not also discern right from wrong.
Despite being acquitted at the High Court, on appeal, a conviction was reinstated.

Court found that the accused knew it was contrary to law to sell drugs he knew the
consequences that would be visited on him if he sold drugs.

Conjunctive Approach - On a conjunctive approach, the accused must show that he

Accused was found incapable of knowing that what he was doing was ‘either wrong
or contrary to law’ by reason of unsoundness of mind when he killed.

 AZRO v PP
F: Motiveless killing however defendant was found guilty and the appeal dismissed.
Azro had killed a man by suddenly stabbing him to death in the middle of the night and
bit one of those who attempted to rescue the victim.
H: Medical evidence did not support the defence and the appeal was dismissed. s 84
requires there must be unsoundness of mind and it must lead to 1
of 2 consequences, either :
- accused is incapable of knowing the nature of the act OR
- knowing that what he was doing was either ‘wrong or contrary to law’

DEFENCE OF INFANCY

 Infancy is a defence in criminal liability because the infant has no mens rea.
 An infant under the age of discretion is ought not to be punished by any criminal
prosecution because he cannot distinguish between right or wrong or between good
or bad.
 There are two provisions regarding the defence of infancy:-
o a) Below ten years:-
Section 82 Penal Code
o b) Above ten years but below twelve years:-
Section 83 Penal Code
There will be no offence if it is done by a child who is above 10 years
but below 12 years old, who has not attained sufficient maturity of
understanding to judge the nature and consequence of his conduct on
that occasion

Section 82 Penal Code

- Children who is below 10 years old has absolute immunity as they are regarded as an
infant unable to distinguish between right and wrong and therefore cannot be guilty of
crime.
- There will be presumption of law that the child under 10 years is incapable of crime
(doli incapax) and cannot be endowed with any discretion.
- WALTERS v LUNT
F: The parents of the child were acquitted when they were found in possession of the
stolen tricycle. The tricycle was brought home by the child who is 8 years old. The
parents knew that the tricycle was a stolen one but instead kept it on their premises.
H: But they were acquitted because of the child was unable to form the intention for a
crime and he could not steal and thus the tricycle was not stolen.
EMPEROR v WALI
F: Two child of age 5 and 8 years old respectively threw a stone to a moving train and
cause damage to the train, violates s.128 of Railway Act.
H: Doli incapax not only applicable in criminal offences, but also for other offences
involving a child under age of 10 (pari materia with s82 of Penal code)
 Section 83 Penal Code

- Nothing is an offence when it was done by the child above 10 years but below the
age of 12 and has not attained sufficient maturity of understanding to judge the
nature and consequences of his conduct on that occasion.
- The question would be on whether the child has attained the level of maturity to be
able to judge the nature and consequences of the act whether it is good or bad.
- !his means they are presumed to be capable of committing crime but if they want to
rely on this defence, it must be proven that they have not attained sufficient maturity to
understand and judge the nature and consequences of the said conduct.
-
- QUEEN v LUKHINI AGRADANINI
Consequence refers to natural consequence of the conduct, not penal
consequences. I.e. A heavy blow with an axe or sword will cause death or grievous
hurt

- ULA MAHAPATRA v THE KING

F: A child of about 12 became angry with his friends while holding a knife. He advanced
towards one of his friends while uttering threatening gestures ‘I will cut you to bits’
which he actually did and killed the friend.

H: He did what he intended to do and he knew that a blow with a knife would give effect
to his intention. He fully understood the nature and consequences of his conduct
on that occasion. He understood the knife will indeed “cut his friend to bits” thus
effectuating his intention.

- ABDUL SATTAR V CROWN AIR

A group of children was held of having sufficient maturity when they knew how to break
the locks and able to select valuable goods only and left the cheap ones behind.