Mickelson Gerald Wayne v PP [2021] 1 LNS 1 1579 Federal Court


Mickelson Gerald Wayne v PP [2021] 1 LNS 1 1579 Federal Court

Culpable homicide not amounting to murder

Facts 1.     Mickelson Gerald Wayne (“the Appellant”), was charged under Section 302 Penal Code (“PC”) for murdering his wife (“the Deceased”) in a hotel room in Kuala Lumpur.


2.     The Appellant reported the incident and asked for the police to be sent to his room. The police found the Deceased on the bed inside the bedroom.


3.     The Appellant admitted that he had hit her on the head with a table lamp and then strangled her.


4.     The appellant later claimed trial at the Kuala Lumpur High Court. He pleaded self-defense.


5.     At the end of the trial, the learned trial Judge found the appellant guilty of the offence of murder under s. 302 PC. He was convicted and sentenced to death.


6.     Upon appeal at the Court of Appeal, the Court dismissed his appeal and affirmed the conviction and sentence passed by the High Court.


7.      The appellant appeal to the Federal Court.

Issues 1.     Whether the Courts below had correctly or properly appreciated the legal principles pertaining to the right of private defence as set out in sections 96, 97, 99, 100 and 102 PC; and


2.     Whether the Courts below had failed to appreciate that if private defence did not apply, the lower level of culpability applied.

Ratios 1.  The right to private defence.


(a)     The right of private defence is available to any person who is suddenly confronted with the immediate necessity of impending danger or peril, not of his own creation, as long as the harm that is inflicted in the exercise of the right is not more than is necessary for his defence.


(b)     That  right  commences  the  moment  there  is  reasonable

apprehension of danger to the body and continues as long as such apprehension of danger remains. Whether the apprehension

was reasonable or not is a question of fact depending upon the facts and circumstances of each case but should be judged primarily by the unexpected anguish the accused faced at the time.


(c)  Due emphasis must be given to what can happen in the crisis of the moment bearing in mind the normal and instinctive reaction of human conduct in the interest of self- preservation.


2.  The Mens Rea Element for Culpable Homicide.


(a)    There are three degrees of criminality when it comes to culpable homicide:


(i)     The first is murder which is punishable with death under s. 302 PC.


(ii)     The second category is the offence under s. 304(a) PC, which for convenience should be referred to as culpable homicide in the second degree, and which is punishable with imprisonment for up to 30 years.


(iii)     The third category is the offence under s. 304(b) PC, which for convenience may be labelled culpable homicide in the third degree, and which is punishable with imprisonment for up to 10 years.


(b)    In order for an offence of culpable homicide can be said to have been committed, the elements of “intention” or “knowledge” must exist. In other words, it must be a deliberate act as opposed to a rash or negligent act, which forms the basis of the offence of culpable homicide.


(c)    Under s. 300(c) PC, the decisive factor is the intentional injury which must be sufficient in the ordinary course of nature to cause death. It must be proved that the accused intended to inflict the injury that was in fact caused. This is a matter of subjective assessment. The next step of ascertaining whether or not the injury was sufficient in the ordinary course to cause death is a matter for objective assessment.


(d)    If it is established that not only was there an absence of the intention to cause death but also an absence of intention to cause

such bodily injury that in the ordinary course of things is likely to

cause death, the offence committed is not murder under s. 302 PC.


3.  Exception 4 to Section 300 PC.


(a)     It is trite law that culpable homicide is not murder if the case falls within any of the five exceptions to s. 300 PC. Exception 4 covers acts done in a sudden fight. It acknowledges that in the heat of passion, a man’s judgment may be clouded by a momentary loss of control of his essential mental faculties governing emotion.


(b)      To invoke Exception 4, the following conditions must be satisfied:


(i)  It was a sudden fight which originated from a sudden quarrel;


(ii)  There was no premeditation;


(iii)  The act occurred in the heat of passion; and


(iv)  The accused had not taken unfair advantage or acted in a cruel or unusual manner.

Decision 1.     The appellant had no intention to inflict the fatal injury on the deceased.


2.     There was no premeditated plan to kill the Deceased and no such motive was ever suggested at the trial.


3.     From the mere medical fact that the injury caused was sufficient in the ordinary course of nature to cause death, it does not necessarily follow that the appellant intended to cause that particular injury.


4.     The case fell within Exception 4. There was more than sufficient evidence of a sudden fight which emanated from a sudden quarrel between the appellant and the deceased. There was no evidence of any premeditation or pre-existing malice by the appellant against the deceased.


5.     Unanimously allowed the appeal. Conviction and sentenced under s. 302 PC were set aside and substituted with a conviction under s. 304(b) PC. The appellant was sentenced to seven years’ imprisonment with effect from the date of arrest.

Key take away 1.         Not all murder is sentenced with capital punishment.


2.         There are exceptions that the law recognised. These exceptions are provocation, self-defense, public servant exceeding his powers, a sudden fight and consent.


3.         The intention of the accused is fundamental. Case law suggests that in most cases, the decisive factors are the place and nature of the murder, the number of persons involved, the type of weapon used, how they are used, the force applied, and the organs targeted by the offender.


4.         For the act of intentionally causing injury sufficiently to cause death, the Court differentiates between intended injury and actual injury.


5.         For example, if a house owner is confronted by an armed burglar and subsequently shoots him in the leg with a gun having no intention to kill but only to stop the burglar in his tracks (which is the intended injury), it is not murder even if the medical evidence suggests that the injury in the normal course would lead to death due to excessive bleeding (the actual injury). There is no intention by the house owner to cause fatal injury.


6.         However, unless the exceptions apply, the house owner will still be liable for culpable homicide not amounting to murder.




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