Question 1(a)

The
issue is whether Kuma could rely on the defence of accident successfully if he is charged under
section 80 of the Penal Code for causing the death of the man.
According to Section 80 of the Penal Code stated that nothing is an offence which is done by
accident and without any criminal intention in the doing of the lawful act in a lawful manner by
lawful means and with proper care and caution.
Accident was not defined in the Penal Code hence it was difficult to ascertain the scope and
the extent of this defence. However in the case of Ong Choon v PP, the court defined the accidental
act as an act that was done without the intention of causing it and when the occurrence as
consequence of such act is not so probable that an ordinary person should under such circumstance,
take reasonable precautions against it. In order to successfully raise the defence of accident, the
following elements must be fulfilled; the act was an accident or misfortune, there is no criminal
intention, in the doing of a lawful act in a lawful manner by lawful means and the act was done with
proper care and caution.
The first element is that the act was an accident or misfortune. In the case Ratnam v R, to
raise the defence of section 80, the act must be unintentional and a pure accident. Unintentional is
an effect is said to be accidental when the act by which it is caused is not done with the intention of
causing it and when its occurrence as a consequence of such act is not probable that a person of
ordinary prudence ought, under the circumstance in which it is done, to take reasonable precautions
against it. In accident, the primary act has no criminal intention in nature. It must also be a
misfortune; something not designed nor desired but something that happened in evil plight.
The second element is that there must be no criminal intention. R v Bradshaw, during a
game, both the accused and he deceased were charging towards the ball. The accused jumped into
the air and struck the deceased in the stomach with the knee. The accused was hurt but the
deceased was carried away and died the next day from a rupture of the intestines. The accused was
charged for manslaughter. The court held that the man was playing according to the rules and
practices of the game and not going beyond it. It may be reasonable to infer that he is not actuated
by any malicious motive r intention, and that he is not acting in a manner in which he knows will be
likely to cause death or injury.
The third element is that in the doing of a lawful act in a lawful manner by lawful means. At
common law, there are two types of offences, namely: Mala in se-bad in itself/ the nature of
offences in unlawful, illegal and wrong. For example like murder, theft, and Mala prohibita- bad due
to prohibition/ becomes wrong when there is prohibition imposed by the law.
In the case of King Emperor v Timmappa, the accused and the victim went hunting for
porcupine in the woods. Both the accused heard some noise. Thinking it was porcupine, he fired a
shot and upon investigation, he discovered that he had shot the victim who had died instantly. The
court held that the accused was not using a lawful means as the gun was unlicensed.
The fourth element is the act was done with proper care and caution. The amount of care
and caution must, such as a prudent and ordinary man would consider adequate upon all the
circumstance of the case. There must be no elements of rashness or negligence on the part of the
accused.
In the case of State of Madhya Pradesh v Rangaswamy, the respondent fired the deceased
under the impression that it was hyena which had previously been seen in the vicinity. At the time of
the shooting, it was raining, the sky was overcast and visibility was poor. The respondent said he had
not expected a human being to be there and the object he had aimed at had a brown covering (the
deceased was wearing the gunny sack at that time). It was held that the care and circumspection
taken by the respondent was such that prudent and reasonable man would consider adequate in all
the circumstance of the case, thus the defence of accident was available to him.
In applying to the current case, Kuma act is considered as accident and misfortune. This is
because as we can see in the situation where Kuma spotted some movement near the river. He
thought it was the tiger they were hunting for and quickly pickup up his rifle and fired two shots in
the succession. Kuma also didn’t have any intention to cause harm towards that man since he was
thought that he shoot the tiger and he was not expected that he shoot a man in the jungle at that
late hour. Next, in order for him to rely on defence of accident he must prove that the act was done
in proper care and caution. In this situation, Kuma and his hunting party has taken a proper caution
as the suspect and know that the animal would come out for a drink at a stream in the middle of the
jungle. They also created a make – shift hiding place at the top of a slope overlooking the river. Thus,
it was proven that Kuma’s act was done with proper care and caution
The action made by Kuma and his hunting party is lawful act as he only wanted to shoot the
tiger as instructed by Mando, the headman of Namba village. His act can be considered as not
prohibited by law or in other word Mala Prohibita. Moreover, Kuma acted by helping the injury man
carried him out of the jungle and brought him to Mando’s house also considered as lawful manner.
However, Kuma and his hunting party also failed to renew the permit for using the rifle
although he did have the licensed to use it. We can presume that, if Kuma had applied for permit or
licensed from the authorities, then he will succeed in fulfilled the third element so he can rely on the
defence of accident.
As a conclusion, they still failed to fulfill the third element of the defence. Even though
hunting is legal, Kuma and his hunting party must have acquired the permit from the authorities
before they do so. Failing to obtain the permission from the relevant authorities caused the act to
illegal. Besides that, they were also failed to renew the riffles which mean that in the doing of the
act, they are committing an unlawful act by unlawful means in unlawful manner. Thus, Kuma is not
entitled to defence of accident. .

Question 1(b)
 In this present case, the fact that I would to change is if Kuma is a policeman and he done
the act in the good faith and believed to be justified by the law according to the section 79 of the
Penal Code, then it would be mistake of fact.
There are two exceptions relating to mistake which is in section 76 states that nothing is an
offence which is done by a person who is, or who by reason of mistake of fact and not by reason of
mistake of law in good faith believes himself to be bound by law to do it. In section 79 provides that
nothing is an offence which is done by a person under a mistake of fact and not by reason of mistake
of law in good faith believes himself to be justified by law. Justified by law in section 79 deals with
the situation where a person thinks that he is justified by the law to do the act. In other words, it
must not be illegal.
There are three elements of defence of mistake which is mistake of fact, done in good faith
and not a mistake of law. The first elements is mistake of fact. Based on the case of Ratanlal and
Dhirajlal’s Law of Crime, states that a mistake of fact consist of unconsciousness, ignorance or
forgetfulness of a fact past or present material to the transaction which does not exists or in the past
existence of a thing which does not exist.
In the case of Bonda Kui v King Emperor, a woman in the middle of the night saw a form
apparently human, dancing in the state of complete nudity with broomstick tied on one side and a
torn mat around the waits. The woman, taking the form to be an evil spirit or a thing which
consumed human beings, remove her own clothes and with repeated blows by a hatchet fell the
thing to the ground.
The second element is that the act must be done in good faith. The mistake must be a
mistake of fact made in good faith. The test is not whether the mistake was an easy one to make or
whether a reasonable person could make the mistake.
The last element is that it was not a mistake of law. Ignorance of the law is no excuse.
Mistake of law is excluded from the provisions of section 76 and 79. A mistake of law can happens
when a person having full knowledge of the facts come to an erroneous conclusion as to their legal
effect.
In applying in the current case, we can presume that if Kuma is a policeman, the act of Kuma
is not mistake of law because he is a police officer that have a knowledge about the law on shooting
an unarmed person. He knew that police officer can be able to use lethal force in any setting
provided that they have a reasonable belief on the suspect poses a risk of imminent bodily harm to
the officer or a member of the public. Moreover, Kamu can be succeed in the defence of mistake of
law as he mistakenly believed that he was bound by law to shoot that man. We also can presumed
that, the mistake done must be in a good faith as he believes that he is bound by law to shoot that
man as he was ordered to kill anyone to threaten a police officer.
As a conclusion, if the element of mistake is fulfilled, Kamu and his hunting party can raise a
defence of mistake of fact he is charged with the offences of shooting that man.