Malaysia-statutory defence of accident

In the Court of Appeal case of La Ode Ardi Rasila v Public Prosecutor [2016] 1 MLJ 358, it was held that:-

"...It is obvious that the appellant's defence was a defence of accident or misfortune under s 80 of the Penal Code, which provides as follows:

80 Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge, in the doing of a lawful act in a lawful manner, by lawful means, and with proper care and caution.

[35] It is a complete defence in the sense that if established would entitle the appellant to an outright acquittal, unlike for instance a defence of grave and sudden provocation to a murder charge which if established would only reduce the offence to culpable homicide not amounting of murder, but not entitling the accused to a total acquittal.

[36] The defence of accident or misfortune falls under the general exceptions in the Penal Code and as such must be read together with s 105 of the Evidence Act 1950 ('the Evidence Act') which reads:

105 When a person is accused of any offence, the burden of proving the existence of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances.

[37] If not for this provision, the appellant would have no duty to prove or to disprove that the shooting was accidental. In fact he would have no duty to prove or to disprove anything. He would be entitled to an acquittal if he succeeded in merely raising a reasonable doubt in the court's mind as to his guilt: Mat v Public Prosecutor [1963] 1 MLJ 263; [1963] 1 LNS 82. But because of this provision, that would not be sufficient to earn him an acquittal. In order to succeed, he must prove by admissible evidence that the shooting was in fact an accident. In the words of s 105 of the Evidence Act 'the court shall presume the absence of those circumstances'.

[38] It is in this limited sense that step (e) of the guideline laid down by Suffian J (as he then was) in Mat v Public Prosecutor has no application. Step (e) is as follows: 'If you do not accept or believe the accused's explanation but nevertheless it raises in your mind a reasonable doubt as to his guilt [#65533] Acquit'.

[39] The first thing to note with regard to that case is that the appellant (Mat) had no legal burden of proof to discharge. He had been charged with stealing two chickens and in the alternative of retaining a stolen chicken and s 105 of the Evidence Act did not come in to play. His burden was merely evidential, merely to cast a reasonable doubt as to his guilt and not the legal burden of proving or disproving anything, let alone to prove that he did not steal the two chickens or to retain a stolen one. The legal burden to prove the charges remained with the prosecution throughout and never shifted.

[40] That is not the legal position in the case before us. The legal burden of proof had shifted to the appellant by operation of s 105 of the Evidence Act 1950. As for the quantum of proof required to discharge that burden, it is the civil burden of proof, which is lighter than proof beyond reasonable doubt but heavier than to merely cast a reasonable doubt in the prosecution case: Public Prosecutor v Yuvaraj [1962] 2 MLJ 189; [1968] 1 LNS 116 (PC); Mohamad Radhi bin Yaakob v Public Prosecutor [1991] 3 MLJ 169; [1991] 3 CLJ 2073; [1991] 1 CLJ (Rep) 311 (FC).

[41] The word 'proved' is defined by s 2 of the Evidence Act 1950 as follows:

proved' A fact is said to be 'proved' when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[42] It is important to bear in mind that it is not just any accident or misfortune that entitles an accused person to the benefit of the defence under s 80 of the Penal Code. It is only available where the accused was doing a lawful act in a lawful manner, by lawful means, and with proper care and caution at the time of the accident or misfortune. The illustration to the section gives some idea as to the kind of accident or misfortune that the law excuses. The illustration is as follows:

A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence."

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