Case Note: INADVERTENCE AS RASHNESS

Citation(2007) 19 SAcLJ 168
Date01 December 2007
Published date01 December 2007

S Balakrishnan v PP [2005] 4 SLR 249

It has been pointed out that the definition of rashness adopted by the Singapore courts contains a “curious anomaly.” On the one hand, it appears to mirror the traditional English test of advertent recklessness which requires the offender to have an actual consciousness of an unjustifiable risk. On the other hand, the definition is accompanied by an exception to this general rule which has led commentators to ask whether rashness is strictly confined to advertent conduct or whether certain forms of inadvertent conduct can amount to rashness. This note examines the case of S Balakrishnan v PP and concludes that the High Court has decided on the latter interpretation of rashness.

I. Rashness introduced
A. The case of PP v Teo Poh Leng

1 Rashness is a term used throughout the Penal Code. However, it is not defined by the Penal Code and Singapore courts usually refer to the definition given in the case of PP v Teo Poh Leng[1992] 1 SLR 15. The offender in Teo Poh Leng pleaded guilty to a charge of causing death by a negligent act under s 304A of the Penal Code. At the material time, the offender was driving a car and as she negotiated a left hand bend, she lost control of the vehicle which subsequently mounted the pavement and caused the death of two pedestrians. She was fined $5,000 and disqualified from driving for five years by the trial court. The prosecution appealed against the sentence on the ground that it was manifestly inadequate. The High Court explained the distinction between rashness

and negligence and held that on the facts of the case, a custodial sentence was not warranted but increased the fine to $10,000 and disqualified the offender from driving for life.

2 Rubin JC (as he then was) adopted two definitions of rashness and negligence which he observed were “generally accepted as correct.” First, he referred to Nidamarti Nagabhushanam(1872) 7 MHC 119 where Holloway J stated:

Culpable rashness is acting with the consciousness that the 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. The imputability arises from acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection.

3 Secondly, he referred to Empress of India v Idu Beg(1881) ILR 3 All 776, where Straight J explained that rashness involved:

Hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences.

4 Taken as a whole, the definition of rashness in Teo Poh Leng appears to be broadly consistent with the traditional conception of recklessness under English law which generally requires an actual consciousness of an unreasonable risk. This subjective test, which I will refer to as advertent recklessness, is also reflected in the English Law Commission’s Working Paper No 31, Codification of the Criminal Law: General Principles. The Mental Element in Crime (1970) at p 47:

A person is reckless if, (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and (b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.

B. The curious anomaly outlined

5 The formulation of Holloway J in Nidamarti contained an exception to the general requirement of actual consciousness of risk. Nidarmarti suggests that an actor who becomes aware of the risk and

then takes steps which he or she believes are sufficient to prevent the risk, nonetheless acts rashly despite the fact that there is no longer a subjective awareness of this risk. Victor Ramraj does not agree that such conduct should be labelled as rash as:

Cases involving a miscalculation or discounting of risk of harm closely resemble paradigm instances of negligence because the accused is no longer subjectively aware that he or she is taking an unreasonable risk. The mere fact that the accused is aware that a risk is involved is not sufficient to impute liability since some risks are considered reasonable ones to take such that any harm that in facts results would be non-negligent.1

6 As such, Ramraj concludes that Nidamarti creates a specific exception to the general rule that rashness requires actual awareness of an unreasonable risk. To Ramraj, this appears undesirable and a “curious anomaly” as:

It is the conscious taking of an unreasonable risk that allows us to distinguish rashness from negligence in a principled way. To treat someone who honestly believes that the risk is a reasonable or non-existent one as rash is to engage in arbitrary classification and to reject [consciousness] as the basis for the distinction between rashness and negligence.2

7 Ramraj’s conclusion that the Nidarmarti exception is a “curious anomaly” appears premised on the assumption that rashness ought to be identical to advertent recklessness under English law. But could Nidarmarti be a correct statement of what rashness is?3

C. The anomaly unresolved

8 Subsequent cases have accepted the definition of rashness laid out in Teo Poh Leng but have not clarified whether or not rashness requires consciousness of an unjustifiable risk in every case.

9 In PP v Tiyatun,4 two persons who were employed as a domestic maid and nanny respectively pleaded guilty to a charge of causing death by a rash act under s 304A of the Penal Code. The offenders force-fed a 21

month old child by pressing the nostrils of the child together while holding his hands down in order to force him to open his mouth, whereupon food was inserted into his mouth. The offenders were sentenced to nine months’ imprisonment each and the prosecution appealed against the sentences. The prosecution submitted, inter alia, that the district judge had erred in law by holding that the offence stemmed from their ignorance as “the crux of the offence was one of acting with consciousness that mischievous and illegal consequence may follow”.

10 Yong CJ agreed with this submission that the district judge had indeed erred in law and held at [8]:

Ignorance of a fact implies a lack of knowledge or awareness of it. On the present facts, this was obviously not the case as the respondents had admitted to being conscious that death was at least a possible consequence of their method of force feeding. By their own admission, they were clearly not ignorant of the consequence, as improbable as they might have considered it to be, and had chosen to proceed regardless of their recognition of the risk of death.

11 While the High Court in PP v Tiyatun stated that while the offenders were clearly not ignorant because they had admitted to being conscious of the risk of death, it did not state that consciousness of risk was necessary for a finding of rashness in every case. It also did not have to deal with the issue of whether an offender was still rash if he had ruled out the risk in the belief that he had taken sufficient precautions.

12 There was a brief mention of this issue in the case of PP v Poh Teck Huat,5 a case of a motorist causing death by a rash act under s 304A of the Penal Code. Yong CJ, after affirming the definition of rashness in Teo Poh Leng, observed at [25]:

Thus, my starting point as to Poh’s culpability was that it could not be regarded as being akin to mere negligence, as it showed callousness on Poh’s part with regard to the risk that he was exposing other road users to. To this, I was guided by the fact that, by slowing down, Poh was clearly aware of the risk that he was taking, yet he had nonetheless chosen to drive on in the hope that an accident would not occur in the mistaken belief that, by slowing down, he had taken sufficient guard against it.

13 Though Yong CJ appeared to be stating that the offender was rash even though he had a mistaken belief that he had taken precautions, the

context of his observations must be considered. The offender pleaded guilty to the charge and accepted that he was rash and the argument that he had no actual consciousness of an unjustifiable risk was probably not raised.6

14 Since the offender was unlikely to have claimed that he had eliminated all consciousness of risk when pleading guilty, the High Court may have been of the view that he had reduced but not eliminated the unjustifiable risk. Since he was still conscious of an unjustifiable risk, he would still be rash even if he believed the risk was reduced. However, the distinction between an offender who manages to completely rule out the unjustifiable risk and the offender who despite his precautions is still aware of an unjustifiable, albeit vastly reduced, risk seems to be an extremely fine one.7

15 Alternatively, it may well be that offences involving motor vehicles are in a separate...

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