Mens Rea is commonly known as the fault element of a crime.
For the prosecution to establish guilt, it is necessary to prove both the culpable state of mind (Mens Rea) and the culpable act (Actus Reus) of the accused beyond a reasonable doubt. Where the defence is able to cast reasonable doubt on either element, the prosecution’s charge will fail and the accused must be acquitted.
There are various fault elements of a crime and each one of a different level of severity, thus warranting different extents of severity for their respective sentences. Hence, in a situation where the accused is not acquitted, the heftiness of his sentence often is a direct result of how culpable his state of mind was.
Intention (Subjective inquiry)
It has been submitted that intention encompasses both direct aim and knowledge of absolute certainty of the person who committed the crime (Criminal Law in Malaysia and Singapore (2nd Ed) by Stanley Yeo, Neil Morgan and Chan Wing Cheong, “YMC”).
For example, in culpable homicide, the fault element of intention is evidenced in s 300a of the Penal Code.
Knowledge (Subjective inquiry)
However, knowledge encompasses virtual certainty. This is encapsulated in terms such as “in all probability”, “likely”, “sufficient in the ordinary cause of nature to cause” and so on (YMC).
For example, in culpable homicide, the fault element of knowledge is evidenced in s 300b, s 300c and s 300d of the Penal Code.
Rashness (Subjective inquiry)
Singapore has approved of the subjective definition of ‘rash’ in Re Nidamarti Nagabhushanam that is “acting with the consciousness that mischievous and illegal consequences may follow, but with the hope that they will not and often with the belief that the actor has taken sufficient precaution to prevent their happening” (Teo Poh Leng, Poh Teck Huat, Lee Cheow Loong Charles). This is a subjective inquiry taking account any factors personal to the accused such as mental impairment or disability in order to determine if the accused realized the risk (Ng So Kuen Connie).
Notably, there has been some discourse with regard to this definition. With reference to Sankar Jayakumar and Balakrishnan S, proponents have argued for expanding the scope of rashness to include ‘inadvertence of risk’ and attempted to debunk subjectivist viewpoints (Toh Yung Cheong, “Revisiting Rash Driving” (2011) SAcLJ at [44-56]).
Still, Singapore’s current position remains that ‘rash’ in s304A (PC) would not include ‘inadvertence to risk’, especially in driving related cases, as evidenced in Ng Jui Chuan where it was held that ‘inadvertence to risk’ should fall under the fault element of negligence.
An example of where the fault element of rashness is evidenced can be found in s304A read together with s304A (a). Where death is caused by a rash act, the appropriate sentence is much less severe as compared to the sentences for murder or culpable homicide not amounting to murder.
Criminal Negligence (Objective inquiry)
Negligencerefers to acting“without the consciousness that …consequences will follow, but in circumstances which show the actor had not exercised the caution incumbent on him”. In short, criminal negligence can be found as long as the prosecution is able to prove that the accused would have recognized the risk of his her actions if he or she had taken due care.
While there have been compelling insights provided for criminal negligence to have a subjective element (Nidamarti, Ramraj), Singapore’s current position remains that where criminal negligence is concerned, the test is an objective one. In Lim Poh Eng, the test applied to an accused TCM practitioner was the standard of an ordinary skilled TCM practitioner. However, it is important to note that trainees of a certain profession are held to the same standard as qualified people of that particular profession due to public policy reasons (Ng Keng Yong).
The standard of negligence for criminal liability is the same as liability for negligence in civil law (tort of negligence) (Lim Poh Eng). The only differences lie in the
(1) standard of proof (where criminal negligence requires proof of negligence beyond a reasonable doubt, and tortious negligence only requires proof of negligence on a balance of probabilities)
(2) the rules relating to factual and imputable causation and
(3) the fact that criminal law requires proof that the accused was negligent with respect to the offence rather than a more general form of negligence (Lim Poh Eng).
An example of where the fault element of rashness is evidenced can be found in s304A read together with s304A (b). Where death is caused by a negligent act, the appropriate sentence is much less severe as compared to the sentences for murder, culpable homicide not amounting to murder or rashness.