Implication of the Defence on Criminal Liability and Responsibility

Implication of the Defence on Criminal Liability and Responsibility

There are two ways in which the accused can be made criminally liable in court. The first is if the

accused pleads guilty to the charge (section 173(b) of the CPC). In this situation, the case does not

proceed with the trial. Secondly, the accused claims for a trial and after the full trial, the accused is

found guilty and an appropriate sentence is imposed on him (section 173(m)(ii) of the CPC). In

discussing one’s criminal liability, it is worth explaining the two terms which are “criminal liability”

and “criminal responsibility”. The term “liable” is mentioned many times in the Penal Code to

indicate the guilt of the accused person. In other words, to hold one criminally liable, he must first be

found guilty of committing the offence. For instance, under section 2 of the Penal Code, it states:

There are a number of ways for the accused to defend himself in court. The first is denying

responsibility for the alleged crime, thus denying criminal liability. The second is by admitting

responsibility for the alleged crime, but denying criminal liability. For the former, the accused denies

both criminal responsibility and liability. He claims that he should not be answerable to the alleged

offence because he was not the one who committed the offence in the first place. An example of this is

when he raises the defence of alibi (Hall, 2008). Defence of alibi simply means a claim that he was

somewhere else at the time the offence was committed. In Malaysia, it is spelt out under section 402A

of the CPC. The burden is on the accused to prove such defence. An example of a case to illustrate

this point is Public Prosecutor v. Mohd Zaidi Zakaria & Anor [2019] 1 LNS 16, where the High Court

acquitted the accused of the charge because, among other reasons, the court accepted the defence of

been positively identified by prosecution witness (PW 1), then the

alibi defence of the first and second appellants collapsed. Being criminally liable simultaneously

means criminally responsible, although the accused denies responsibility. This is because criminal

liability does not solely depend on the accused’s admission of the offence, but is also based on the

evidence adduced by the prosecution in court.

For the latter, the accused admits he is responsible for the act, which means he admits to

committing the criminal act, but denies criminal liability. In other words, he has a defence to

justify his commission of the offence. Thus, he needs to answer the allegation against him. If he

can meet all the conditions of the defence raised, then the defence can succeed, thereby shielding

him from conviction. Thus, while it may be argued that responsibility is a condition of liability

of circumstances that would otherwise be unacceptable. Hence, the justification defence focusses

more on the act itself rather than the accused. Robinson (1982) named private defence as an

example of a defence that falls under this category. An example of this is when A injures an

attacker, which is the only way to defend himself from being killed, then A may raise the defence

of private defence. In Malaysia, private defence is mentioned from sections 96 to 106 of the Penal

Code. Section 96 states that: “Nothing is an offence which is done in the exercise of the right of

private defence.” An example of a case to explain this can be seen in Ya Daud v. Public

Prosecutor [1996] 2 CLJ 540, where the appellant did not deny that he killed the victim, but

argued that the killing was in self-defence. In this case, the High Court accepted the defence as all

the conditions for it had been met. The appellant was therefore acquitted and discharged. In short,

should be raised. Thus, a reference to the case law is necessary to know the legal position on this.

(Rep) , Edgar Joseph Jr SCJ explained that:

Indeed, it behoves the defence to do so (to put its case at the earliest possible stage) for we

need hardly say that if a defence is sprung in court for the first time when the accused

makes his defence from the witness box or the dock, so that the prosecution is taken by

surprise, the accused runs the risk of being criticized for keeping his defence ‘up his sleeve’

so to speak, and it branded as a recent invention (p. 292).

This case shows that the defence should be raised at the early stage which refers to the prosecution

stage. Otherwise, the defence may be criticised for keeping the defence a secret, where it can be

regarded as a mere invention. The same principle was applied in the Federal Court case of

Anthony v. Public Prosecutor [1996] 1 LNS 595, which implies that defence should be presented

at the prosecution stage. This is to inform the court and also the prosecution from the very

beginning of his line of defence, which indirectly avoids the occurrence of any element of

such as the investigating officer.

What happens then if the defence is merely raised at the defence stage? The issue was

addressed by the Supreme Court case of Lin Lian Chen and further clarified in the Federal Court

case of Alcontara A/L Ambrose Anthony v. Public Prosecutor [1996] 1 CLJ 705 where it was held

that: “… thus avoid the adverse comment, that the defence is a recent invention in other words,

‘kept up its sleeve’, as it were” (p. 718). Again, the same principle was adopted in Public

Prosecutor v. Lim Hung Wang & Anor [2012] 1 LNS 368, where the court held that since the

accused merely introduced their defence at the defence stage and did not put it through

prosecution witnesses, their evidence was merely an afterthought and/or recent invention,

doubtful and not credible.

LNS 1513, Lim Chee Hwa v. Public Prosecutor [2020] 1 LNS 670, and Ariff Arhanan Che Udin v.

Public Prosecutor [2020] 1 LNS 657.

To address the issue that was raised in Section 4.4, reference to section 257(1) of the CPC is

important. The section states the role of the court in assisting the unrepresented accused in

situations provided for in the section. The section states:

At every trial before the Court of a Magistrate if and when the Court calls upon the accused

for his defence it shall, if he is not represented by an advocate, inform him of his right to

give evidence on his own behalf, and if he elects to give evidence on his own behalf shall

call his attention to the principal points in the evidence for the prosecution which tell

against him in order that he may have an opportunity of explaining them.

opportunity to explain. Another relevant case to explain the application of this section can be seen in

Dolly bin Surop v. Public Prosecutor [2020] MLJU 1613, where the accused was not represented by a

lawyer before the prosecutor closed the case. At the defence stage, the appellant was informed of the

three options available to him. However, there was nothing in the notes of proceedings that showed the

case for the prosecution was explained by the court to the appellant, who was unrepresented, pursuant

to section 257(1) of the CPC. In this case, the High Court allowed the appeal and the convictions.

were quashed. Among the reasons for the judgment was that the appellant must be allowed the

the accused is not represented, the main points of the evidence adduced by the prosecution

witnesses, especially vital witnesses such as a victim should be explained to the accused. This is

to enable the accused to cross-examine the witness properly and to provide him an opportunity to

Prosecutor [2014] 8 CLJ 760. That responsibility is borne by lawyers, who should discuss and advise

their clients on the best strategies in presenting their defence. It is worth noting that criminal cases are

unique in the sense that some of them are straight-forward cases, and some of them are complicated

cases. Also, the complexity of raising the defence depends of the uniqueness of why and how the

offence was committed. There are cases in which the defence is really spot on; for example, D injures

E to save himself from being unlawfully attacked by E. Based on this example, the best defence would

be private defence. Another example is when a police officer misses the shot, which was aimed at the

kidnapper, and the bullet accidentally hit the innocent hostage instead. In this situation, the best

defence would be the defence of accident. At the same time, there are cases in which it is hard for the

accused to provide a defence for the crime committed. For example, A, consciously and without

should be introduced at the prosecution stage in order to avoid any element of surprise, and above

all to avoid the presumption that the defence is mere invention and afterthought.

The right to defence is constitutionally protected and is well explained in the CPC. While not

explicitly mentioned in the CPC, a number of cases, namely Lin Lian Chen, Anthony and

Alcontara A/L Ambrose Anthony indicate that the defence should be put forward at the prosecution

stage through relevant witnesses. By failing to comply with this, the court may form the view that

the defence raised was mere invention rather than a genuine one. While the principle has been

regarded as law in raising defence, there are still cases where the accused did not present their

defence at an earlier stage. Regardless of the strategy the defence might use, the lawyer should

take note that if there is any defence relevant to the case, then such defence should be introduced