seminar 20 common intention s 34
TRANSCRIPT
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Re-cap: sudden fight
Sudden fight - paradigm casein the heat ofexchanging blows: easy case
But when does a fight start? When can A claim
sudden fight? When V threatens to inflict violence on A and A
responds with fatal blow
When V hits A physically and A responds withfatal blow
When V attempts to strike A and A responds withfatal blow
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Re-cap: sudden fight
Tan Chee Wee Having considered these cases, it is our opinion that fight implies
mutual provocation and blows on each side. It is not sufficient thatthere is, in the words of the court in Jusab Usman v State (1983) XXIVGuj LR 1148, at least an offer of violence on both sides. (para. 61) --
-- must include physical blows? Cannot be just an offer of violence what is an offer of violence?
where a person strikes another, then there will only be a fight if theother hits him back or at the very least prepares himself to strike back,even if he ultimately does not strike back because of the lack ofopportunity. There cannot be a fight if the victim keeps quiet and doesnothing. That is simply a one-sided attack. (para. 62) --- there must at
least be an attempt to strike on both sides? it would appear that there was no exchange of blows. At best, there
was a single punch followed by the fatal stabbing. (para. 60) --- whynot? Isnt this an exchange of physical blows? Or must it be more thana single exchange? Cf. Tan Chun Seng (a single push was enough)
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Re-cap: sudden fight
How can we read Tan Chee Wee?
When V threatens to inflict violence (a simpleoffer of violence) on A and A responds with fatal
blowNO this ruled out by Tan Chee Wee When V hits A physically and A responds with
fatal blow
When V attempts to strike A and A responds with
fatal blow A must have killed during more than a single
exchangea series of blows exchanged
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Recap: sudden fight
Between offers of violence/attempt to strike/physicalstrike/series of strikes ---- why not choose the broadestinterpretation that includes mere offers of violence?Mandatory capital punishment concerns
No mere offers of violence (at the least must be attempt tostrike) Provocation: sudden and grave act by V; EPD: act by V must at least
give rise to reasonable apprehension of harm
We can understand A killing in response to Vs act that is a grave andsudden provocation, we can understand A killing in response to Vs actthat gives rise to reasonable apprehension of harm; can we extend the
same understandingto an A who kills just because V offers violence?
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Recap: abetment
Inchoate or derivative?
What are the arguments for saying it is
inchoate?
Look at all the examples, illustrations in the Penal
Code text
What are the arguments for saying it should be
derivative?
Same punishment as committed offense
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Common intention
s. 34 of the Penal Code
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s.34
34.When a criminal act is done by several
persons, in furtherance of the common
intention of all, each of such persons is liable
for that act in the same manner as if the act
were done by him alone.
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Who delivered the fatal blow?
Lim Poh Lye
Trial judge was unable to decide which Adelivered final blow
CitedBharwad Mepa Dana (Indian case) whichstated The section is intended to meet a case inwhich it may be difficult to distinguish betweenthe acts of individual members of a party who act
in furtherance of the common intention of all or toprove exactly what part was taken by each ofthem. (para. 62)
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Elements
A criminal act
A common intention
Participation in the doing of the act Offence committed in furtherance of the
common intention
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A criminal act
Series or group of acts of all the participants as a whole, whichmust include an offence.
Barendra Kumar Ghosh a criminal act means that unity of criminal behavior, which results
in something for which an individual would be punishable if it were
done by himself alone Lee Chez Kee
a single criminal act may involve and give rise to several offences.the expression criminal act in s 34 means the whole of the criminaltransaction in which the co-offenders engage themselves by virtue oftheir common design and not any particular offence or offences thatmay be committed in the course of such a transaction (para. 136)
It is not the offence that they plan or carry out but it is an act or acontinuum of acts. In short, it is a criminal design. The offence oroffences are committed in the course of their carrying out their criminaldesign. (para. 137)
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Participation
A must participate in commonly intended crime
importance of this element of participation
Lee Chez Kee
Participation in the criminal act is the main feature of s 34of the Penal Code and it is this which explains why the
persons involved are made to share in the criminal liability
for the offence jointly. the mere agreement between a
number of persons to commit a certain crime is not enoughfor the purpose of this section. Such persons could be
committing the offence of a criminal conspiracy, but they
would not fall foul of s 34. (para. 138)
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Participation
Nature of participation? (does this include
physical presence)
Participation in what? (the crime charged? E.g.
twin-crime casesparticipation in the
commonly intended crime or the crime
charged?)
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Participation: nature
Is presence necessary? Geraldine Andrew: Yes. The very nature of s. 34 demands a closer association
with the actual commission of the offence as compared to abetment where theperson is punished for aiding or abetting.to hold that an A can be liableunder s. 34 despite being absent when the commission of the offence occurredwould render much of the abetment provisions in the Penal Code otiose
.there must be a requirement that he was physically present when thecommission of the offence took place (para. 34)
Constructive presence Geraldine Andrew: physical presence at the actual commission of the offense,
not physical presence at the immediate site when the commission of the offenseoccurred. Although Geraldine was not in the flat when the stabbing took
place, she was at the staircase landing near the flat. It could not be said that shewas in a place remote from the actual occurrence of the offenseif she did seeanyone coming, she would warn her companionsshe was the one whobrought the others to the flatshe was the one who told Mansoor and Nazarwhat to say in order to get into the flatshe had given glovesshe went intothe flat to look for the deceaseds valuables
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Participation: nature
Resolved byLee Chez Kee (para. 147)
Cited Sabarudin bin Non v PP:In our judgment, presence in everycase is not necessary for s 34 to apply. In our judgment, s 34 should beinterpreted having regard to modern technological advances. The earlydecisions on the section, admittedly by the Privy Council, that held
presence to be essential for s 34 to bite were handed down at a timewhen modes of communication were not as advanced as today.
I respectfully accept the wisdom behind the pronouncement and holdthat presence at the scene of the criminal act, primary or collateral,need no longer be rigidly insisted on for s 34 of the Penal Code toapply. I repeat that the crux of the section is participation, and presencemay or may not provide evidence of participation; this is a question offact to be decided in each case.
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Participation: in what?
Participation in what? Twin-crime situations Some cases: need participation in charged collateral offense
(Geraldine Andrews, Tan Joo Cheng)
Some cases: only need participation in primary offense
(Barendra, Ibrahim bin Masod) Hor: 1. When common intent to commit twin crimes ----
only participation in primary offense needed; 2. When
common intent to commit only primary offense ---
participation needed in collateral offense YMC: need participation in offense charged with
participation is key ingredient for imposing liability
under s. 34
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Participation: in what? Lee Chez Kee (para. 148 & 157)
for a long time the Privy Council decision ofBarendra Kumarwasthought to have settled the matter in favour of the view that
participation in the primary criminal act (as opposed to collateralcrime) was enough
this state of affairs was thrown into doubt by the decision of the HighCourt inPP v Tan Joo Cheng
the High Court in Tan Joo Chenghad evidently found that as the thirdaccused was not present at the scene of Lees murder, nor did he holdup Lee, he did not participate in the said murder. This seems to implythat not only need the secondary offender participate in the primarycriminal act constituting robbery, he also needs to participate in thecollateral criminal act constituting murder in a classic robbery-murder
twin crime situation. wrongly decided that there was a need for participation in the
collateral criminal act as well as in the primary criminalact.participation in the collateral criminal act is likely to mean thatthe common intenders all intended the commission of the collateralcriminal act in the first place.
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A common intention
Shared purpose Lee Chez Kee Common intention refers to the common design of two
or more persons acting together. It is the reason or object for doing theacts forming the criminal act. This is different from the intention tocommit the offencewhich is the result of the criminal act committed.(para. 158)
Can arise from pre-arranged plan (older case law required this)or on the spot
Lee Chez Kee
I would stress that common intention to bring about a particular resultmay well develop on the spot all of a sudden, and may be establishedfrom proof of circumstances showing that after some persons gatheredat the scene of occurrence they then developed a sudden consensus oftheir minds to bring about a particular result. (para. 161)
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A common intention
Whether there is common intentionto be inferred from facts
Lee Chez Kee (para. 161) Question of fact to be determined from circumstances of the case
Cited non-exhaustive list of factors considered by Indian case of
Pandurang v State of Hyderabad: common motive or enmity or ill will which is shared by all the accused,
or the fact that they all belong to a faction or family which is on termsof rivalry with the faction or family to which the victim belonged; or
previous conduct of the assailants immediately before the occurrence,such as, that they had met together and then came in a body to the spotwhere the incident occurred; or
subsequent conduct of the assailants, such as, that they all ran awayafter the attack in a body or in the same direction, or that they were allabsconding after the happening of the incident.
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A common intention
Common intention to do what? The crime charged? Vincent Banka: to commit the crime charged
Lee Chez Kee: the clear pattern of the more recent authorities in
Singapore that is, the common intention need not be the intention tocommit the criminal act constituting the offence actually committed.
Ok, if no need common intention to commit offense charged(e.g. collateral offense in twin-crime situation) - then what is
the MR required with respect to the crime charged (any MRneeded?) --- In furtherance of the common intention
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In furtherance of the common intention
Twin-crime situation: charged collateral offense mustbe done in furtherance of the common intention what does this mean? Secondary offender MR: same MR as actual doer
Secondary offender MR: must know that collateral offensemay be committed
Actual doer MR: committed collateral offense withintention to further principal offense
Objective foresight test: collateral offense was something
ordinarily done in furtherance of common intention Nature of offense: collateral offense causally connected to
principal offense
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In furtherance of common intention
Secondary offender MR must be the same as actualdoer MR:R vVincent Banka
Broader reading then undertaken inMimi Wong(1972)as long as MR of actual doer consistentwith common intention shared with secondaryoffender Where it is not identical with the common intention, it
must nevertheless be consistent with the carrying out ofthe common intention, otherwise the criminal act done bythe actual doer would not be in furtherance of thecommon intention
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In furtherance of common intention
Secondary offender MR: knowledge that
collateral offense may be committed
Shaiful Edham
the participants must have some knowledge
that an act may be committed which is consistent
with or would be in furtherance of, the common
intention.
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In furtherance of common intention
MR of actual doer: whether actual doer
intended to commit collateral offense to further
common intention, strict liability
Too Yin Sheong
[The court should focus] on finding out what
intention the doer had when he was doing that
particular act and whether he had done that act also
to further the common intention.
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In furtherance of common intention
Objective foresight inquiry: whether the secondary
offense was something ordinarily done in
furtherance of the common intention
PP v Tan Lay Heong
[The collateral criminal act] was not something that was
either contemplated or done ordinarily in furtherance of acommon intention [to commit the primary crime].
(Emphasis added)
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In furtherance of common intention
Objective inquiry: as long as led to or causallyconnected to collateral crime, strict liability
Asogan Ramesh
These actions were the prolonged result of the unifiedintent of Ds to assault V. This subsequently ledto the deathof V The [trial] judge was correct in holding that therewas a common intention to assault V which led to his
death. Accordingly, [the Ds were guilty of murder. To paraphrase: If As had MR for the primary crime (assault),
they are also liable for the collateral crime (murder) even ifthey did not know or could not have reasonably foreseen thecriminal act causing death. They are guilty of murder so long
as their assault led to or caused the killing.
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In furtherance of common intention
Current position
Lee Chez Kee (para. 236)
the secondary offender must subjectively know that one in his party
may likely committhe criminal act constituting the collateral offence infurtherance of the common intention of carrying out the primaryoffence. In this regard, in connection with the expression criminalact, I do not think it is necessary forthe actual method of execution (inmurder) to have been known by the secondary offender. The expressioncriminal act is to be given a wide interpretation and I think that it is
sufficient, in the case of murder, that the secondary offender knew thatone in his party might inflict a bodily injury which was sufficient in theordinary course of nature to cause death
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In furtherance of common intention
As applied inLee Chez Kee
Events before robbery (fear of being recognized), afterrobbery (plan to conceal), during robbery (used knife on V)
Coupled with the events before and after the robbery as
well as the gratuitous and callous violence inflicted on thedeceased, I feel compelled to conclude that the appellantknewfurther, in that not only did he know that Too (orhimself) would have seriously harmed the deceased if thedeceased had struggled or retaliated, buthe must also haveappreciated that the deceased would have to be killed to
protect their identities in the light of the harm they hadinflicted on him. (para. 262)