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What is common
law defense? It is when a defendant
goes on trial for allegedly committing a crime, a prosecutor must establish
that the defendant is guilty of the crime beyond a reasonable doubt.  At
the same time, the criminal defendant is entitled to present a defense and may
do so through a variety of means. The defendant may attempt to poke holes in
the prosecutor’s case, argue that another individual committed the crime, or
argue that he or she did commit the crime but had a legal and reasonable
defense for doing so. There are numerous criminal defenses available that may
allow a defendant to avoid punishment for his or her actions.

          One of the
criminal defenses is Private defense. Under the common law, a person can use
reasonable force to defend him/ herself , another person or property. Section 3
of the Criminal Law Act 1967 (UK) allows a person to use reasonable force in
the prevention of crime or making an arrest. Self-defense is a complete
defense, leading to an acquittal. While the in assessing whether a defendant
had used only reasonable force, Lord Morris in Plamer1,
felt that a jury should be directed to look at particular facts and
circumstances of the case.

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          The Primary
provision governing this condition of private defense of person and property
appear in s.99(4) of the Penal Code which states that “the right of private
defence in no case extends in the infliction of more harm than it is necessary
to inflict for the purpose of defence”. The expressed description of this
provision clearly states to counter the danger confronting her or him.2
However, bearing in mind the historical and theoretical considerations of the
Code provision on private defence, the courts should interpret s.99(4) in a way
which takes, as full an account as possible, the subjective circumstances of
the accused. Fortunately, the courts have largely done so.

          The hybrid
objective/subjective appraisal required by the general provision of s.99(4) is
exemplified in the particular circumstances covered by s.106. That provision
empowers an accused who reasonably apprehends that an assailant is threatening
him or her with death, to risk harming an innocent person if the accused cannot
effectually exercise his or her right of private defence without running that
risk. Presumably, s.106 extends to exculpating D of a charge of murdering such
an innocent person. Clearly, the provision imposes an objective evaluation of
D’s apprehension of the threathened danger and the need to run the risk of
harming an innocent person in defence of him or herself. However, subjectively
is introduced by required such an evaluation accompanying s.106 of a defender
shooting into a mob who is launching a murderous attack on him bears this out.
We are told that the defender is not guilty of any crime if he, by so firing,
harms children who are mingled in the mob if he could not, in the
circumstances, otherwise have effectually defended himself.

          The more
generous interpretation of s.99(4) in terms of ‘reasonably necessary response’
also helps to explain why the courts have permitted the defence to succeed in
cases where the attacker had been disarmed and the weapon had passed to the
attacked. For example, in Musa bin Yusof v PP3,
the deceased had attacked and wounded the accused with an iron trident,
whereupon the accused had wrested the trident from the deceased and killed him
with a single stab wound. The Malayan Court of Appeal held that private defence
succeeded on the ground that the law did not require the accused to escape
further injury by resorting to less violence or running away. This view fails
to take into account the accused’s mental state of having been attacked with a
weapon moments before, his or her apprehension that the danger was continuing,
and that the force used was reasonably necessary in defence. Likewise,
interpreting s.99(4) in terms of the harm inflicted by the accused was
‘reasonably necessary’ assists in explaining the outcome of cases involving
people with different physiques. Thus the courts permitted a small person to
use a weapon in defence against a larger and stronger but unarmed aggressor.4  Conversely, where the protagonists were both
unarmed and one was physically much stronger and bigger than the other, it has
been held that ‘the former cannot be entitled (except in the most exceptional
circumstances) to do more than ward off the latter’s blow.’5

           Under Section 99 of the Penal Code, every person has
the right to defend themselves or anyone else against any offence affecting the
human body or to defend property from any form of robbery, mischief or criminal
trespass. Besides,

Section 96 of the same Act also states that no act done
in self-defence is an offence under the Penal Code. 

          In the
case Pendakwa
Raya lwn Rajesh Khannah a/l Thirunathan6,
that the deceased in this case, Nagarajan a/l Krishnan, went to the accused’s
house to take his mobile phone and following that, the deceased’s wife (‘SP16’)
heard a male scream. Subsequently, SP16 hurried over to the accused’s house and
found the deceased leaning against the house’s wall and the accused was holding
two knives. In defence, the accused alleged that the deceased had attacked him
first and his act of attacking back was to defence himself as failure to so
would result in his death. The court further held that: The deceased had used a
weapon, in the form of a knife, to attack the accused. Aside from that, the
deceased had cut the accused’s stomach and left hand with a knife and the
deceased was intoxicated to the extent that he could not control his emotion
and acted out of insanity. Since the accused was facing a threat to his person
from the deceased, there was reasonable fear that there could be danger to his
person. Therefore, the right of self-defence was applicable to the accused and
the accused act of defending himself was not an act that was excessive.

          However, according to criminal defence lawyer, Amer Hamzah
Arshad said the force used in self-defence must be proportionate to the
danger. He said that: “If the person is no longer in immediate danger, and
yet they continue to inflict harm onto the suspect, then it crosses the line. In
certain circumstances, such as snatch theft, you can still chase the person to
retrieve your property. But when you apprehend the person and get back your
property, you then cannot rely on self-defence if you continue to beat the
person to death.” He further added that victims of crime have to know when to
stop inflicting harm on their assailant. He said: “The moment you manage
to overpower and apprehend your assailant, you cannot inflict further harm on

second defense is defense of insanity. Even though we use the phrase
insanity, the legal term is unsoundness of mind. In practice, however, the two
are used interchangeably. Unsoundness
of mind has been adopted in several statues , and sometimes indiscriminately
used to signify, not only lunacy, which is periodical madness, but also a
permanent adventitious insanity as distinguished from idiocy. The
defense is found in section 84 of the
Penal Code (‘PC’), which reads as follows:

‘Nothing is an offence which is done by a person who,
at the time of doing it, by reason of unsoundness of mind, is incapable of
knowing the nature of the act, or that he is doing what is either wrong or
contrary to law.’

          There are four
elements to successfully raising this as a defense. The first one is when
the offence was committed, the accused was of unsound mind. Secondly, that insanity mentally impaired the accused. Thirdly, it impaired him to the point that he was
incapable of knowing that what he did was
wrong, and lastly is what he did was contrary to law and the nature of his act.

          Section 84 requires the accused to have suffered from
‘unsoundness of mind’ which impaired their capacity to know the nature of their
conduct or to know that it was either wrong or contrary to law. The Penal Code
does not define the term ‘unsoundness of mind’ and, rather surprisingly, the
courts have not elaborated upon it. The suggestion has been made that the term
is wider than ‘disease of the mind; under the M’Naghten Rues.7
While this may have been true in the past, it is unlikely to still be the case
after a series of judgments where the english courts retrieved that concept
from the clutches of the clinical profession.8
For example, in the House of Lords case of R v Sullivan, the court held that
psychomotor epilepsy was a ‘disease of the mind’ notwithstanding the clinical
opinion that the disruption to brain functioning during an epileptic seizure
was too brief to be classified as a clinical disease of the mind.

          In practice, there is a test formulated by the
house of lords in the historic case of R v. Mc’Naghten9. While there was
three principles that laid down in the Mc’Naghten’s case. Firstly, every person is
presumed to be sane, until the contrary is established. Secondly, it must be clearly proved that at the time of committing
the crime, the person was so insane as not to know the nature and quality of
the act he was doing or if he did know it, he did not know that what he was
doing was wrong.
Thirdly is the test of wrongfulness of the act is
in the power to distinguish between right and wrong, not in the abstract or in
general, but in regard to the particular act committed.

          The English law is also based on the Mc’Nacghten rule to define on insanity is thus:

“where it can be shown that a person at the time of his
committing or omitting an act, the commission or omission of which would
otherwise be criminal, was labouring under such a defect of reason, from the
disease of the mind, as not to know the nature and quality of the act or
omission, or as not to know that what he was doing was wrong, then such a
person is not in law responsible for his act.”

          After that, we should know there are
two kind of “Legal insanity” which recognized by courts, in two broad heads,
namely dementia naturalis which refer to those individuals that are insane from
birth and dementia adventitia which refer to an individual who become insane
after birth.

          When we talk about the burden of
proof, we should know that the standard of proof for the accused to prove insanity is on
a balance of probabilities. That means, looking at the facts, he was probably
insane. This is known as the civil standard of proof. As opposed to the
criminal one which would require the accused to prove his insanity beyond a
reasonable doubt, a far heavier burden. If a
jury thinks it is more likely than not that he is insane within the meaning of
the Rules, then he is entitiled to a verdict in his flavour. While according
to  Criminal Procedure (Insanity and
Unfitness to Plead) Act 1991 Section 3(2), in any case the court may make a
hospital order and an order restricting discharge either for a limited or
unlimited period of time, a guardianship order and other relevant document for
determine any person to be found not guilty under the law.

          In case PP v. Shalima Bi10,
the respondent was charged for murder as she poured the hot oil on her husband’s
first wife who was also the deceased. At the High Court, the respondent pleaded insanity because at the time of the incident,
she did not take her medicine as it was out of stock. The respondent claimed
that she was depressed, suffered from a headache and could not remember
anything that had happened. According to an expert witness (‘SD2’), a forensic
psychiatrist who treated the respondent, the respondent was suffering from
borderline personality disorder (‘BPD’). SD2 also revealed that the respondent
felt that her husband paid more attention to the deceased and the respondent
had allegedly quarrelled with the deceased. During cross-examination, the
respondent initially admitted to pouring hot oil on the deceased but later
denied performing such act. However, the court held that: The respondent was
not even medically insane, let alone legally insane. The BPD that the
respondent was suffering from was not even a major mental illness. It was only
a personality disorder. The court is only concerned with legal insanity and not with medical insanity.

          As a conclusion,
private defenses and defenses of insanity have the uncertain borderline which
sometime we cannot expect. Therefore, we should do more research in order to
increase our ability to under the principle of criminal law.         


1 1971 1
AH ER 1077

2 The
largely objective nature of this condition is in keeping with the objective
pre-condition under s.99(3) since both are concerned with the response to the

3 1953
19 MLJ 70.

4 PP v
Abdul Manap 1956 MLJ 204

5 PP v Lim
Twe Jeat 1994 3 SLR 219

6 2017 8

7 Cheang,
‘The Insanity Defence in Singapore’1985 Anglo-American Law Review 245 at 247;
above, at xiii ; Koh Kheng Lian, Clarkson and Morgan, above, p 212.

8 See
Ferguson, above, at 7, citing R v Kemp 1957 1 QB 399; Bratty v
Attorney-General (Northern Ireland) 1963 AC 386; and R v Sullivan 1983 2
All ER 673

9 1843 10 CT & FIN 100

10 2016 2 CLJ 231

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