Friday, 10 April 2015

Illegal Omissions

Omissions as an Actus Reus
It was previously mentioned that for the prosecution to charge the accused, the prosecution has to prove that the accused had the Actus Reus and Mens Rea of the specific charge beyond a reasonable doubt. While Mens Rea is the blameworthy state of mind of the accused, Actus Reus refers to the act of the accused in relation to his alleged crime.

S 32 of the Singapore Penal Code provides that illegal omissions may also constitute such acts that fall under the realm of Actus Reus. The implication of this is that when it is a crime to cause an effect by a positive act, it is equally a crime to permit the same effect to arise by illegally failing to prevent the realization of that effect.

Three Situations where Omissions are Illegal
There are primarily three situations in which an omission is illegal for purposes of criminal liability.

The first is when an omission is expressly an offence in the Penal Code.

The secondis when law prohibits the omission. What constitutes a prohibition by law includes a “breach of some direction of law”  (Macaulay, Mcleod, Anderson and Millett. An example of this is the case of D’Souza v Pashupati Nath Sarkar where a ship captain committed an illegal omission where he failed a statutory obligation to take all possible steps to arrange for best treatment to be made available to a sick person on board his ship. Also, where s 61(2) of Singapore’s Women’s Charter has made it the duty of a parent to maintain or contribute to the maintenance of his or her children, a parent who has failed to do so will be liable for illegal omission.

The third is where the omission attracts a civil liability in tort or in contract. Grounds for civil liability can form the basis of criminal liability (Ng Keng Yong). Some examples are as follows:

R v Taktak
Mr. Taktak arranged for prostitutes to meet his drug dealer. One of the prostitutes fell ill, and his drug dealer requested for Mr. Taktak to take her away. Mr. Taktak instead of leaving the prostitute out on the road brought her back to the drug dealer’s flat and realized that she was overdosed with heroin. She became excessively sick and although Mr. Taktak tried to resuscitate her, she did not wake up. Only later, when the drug dealer eventually arrived back at his flat and saw the girl did the drug dealer call a doctor. However, the doctor did not manage to treat her and she subsequently died. The court held that Mr. Taktak was guilty of manslaughter for negligence as he omitted to call for medical attention although he had a legal duty to do so since he assumed a duty of care for the victim who was helpless at the time by taking her back to the flat and by doing so, removed her from a situation which others might have rendered or obtained aid for her.

R v Miller
Where one fell asleep on his mattress while smoking a cigarette, then woke up and upon realizing the mattress was smoldering did not call for help but simply movedinto another room, thus allowing the fire to spread, one has committed an illegal omission.

R v Pittwood

Where a gatekeeper had a duty in contract to close the gate on a level crossing and failed to do so, causing a train to collide with a hay cart, the court ruled that criminal liability could arise out of a contract.

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