Legal Defences in Criminal Law: Special Exceptions

Last updated on May 24, 2024

lawyer holding up a file in court

When an accused person is charged with committing a crime, the prosecution bears the legal burden of proving the elements of the charged offence beyond reasonable doubt. In other words, the prosecution has to prove that the accused person had in fact committed the crime.

However, in certain cases, the accused person may seek to rely on a defence, either to dispute the elements of the offence or as a justification/excuse for committing the offence in question. In such cases, the accused person bears the legal burden of proving the defence on the balance of probabilities. Nevertheless, whether and what types of legal defences would apply depend on various factors.

To shed light on the above, this article will cover the following topics:

What is a Criminal Defence?

Broadly speaking, criminal defences refer to any claims raised by accused persons seeking to be acquitted of the charges levied (i.e. to be found not guilty of those criminal charges), to have their existing charges reduced to ones of lesser severity, or to be acquitted on the grounds of the defence. The Penal Code contains some of these defences, which can be classified into the following two categories:

  1. General Exceptions: These defences are contained in Part IV of the Penal Code and apply not only to offences within the Penal Code, but also to offences outside the Code (e.g. offences under the Protection from Harassment Act or under the Companies Act), unless the statute specifically excludes it. Successfully raising the defences that come under the General Exceptions can result in a complete acquittal for accused persons.
  2. Special Exceptions: These defences are found in section 300 of the Penal Code and apply only to the offence of murder. Even if successfully invoked, the defences that come under the Special Exceptions only work as a partial defence, leading to a reduction of the charge of murder to one of culpable homicide not amounting to murder. You can refer to our other article for a brief overview of the differences between murder and culpable homicide not amounting to murder, which also covers the three ways in which one can be found guilty of culpable homicide not amounting to murder. One key distinction is that the maximum punishment if one is convicted of murder is the death penalty, whereas culpable homicide attracts an imprisonment term (life imprisonment, imprisonment of up to 20 years, or imprisonment of up to 15 years, depending on which of the 3 ways one is found guilty of culpable homicide not amounting to murder), alongside possible caning and a fine.

This article only covers the “special exceptions” legal defences. Please refer to our other article for information on the “general exceptions” legal defences.

Do note that it is not always easy to raise a criminal defence, as there are a number of requirements/conditions that must be met as prescribed by the law, which will be discussed below. Furthermore, as mentioned in the introduction, the accused person bears the legal burden of proving the defence on a balance of probabilities. This differs from many other jurisdictions, where the accused person only bears the evidentiary burden of producing some evidence to support the defence, whereupon the prosecution bears the legal burden of disproving the defence beyond a reasonable doubt. As such, it has been observed that criminal defences are less frequently raised in practice in Singapore, compared to these other jurisdictions.

What are the Types of Legal Defences Under the Category of “Special Exceptions”?

Grave and sudden provocation

Provocation is a partial defence to murder and has the effect of reducing the charge from murder to one of culpable homicide not amounting to murder.

In 2016, a woman stabbed her husband in the chest and killed him. She was originally charged with murder. However, her charge was reduced to one of causing grievous hurt on account of her successfully raising the defence of grave and sudden provocation. It was revealed that on the day of the incident, her husband, suspecting her of cheating on him, had attacked her – choking and hitting her until she confessed to the affair. While armed with a knife, he then threatened to kill her and their 14-month-old daughter before taking his own life. She managed to get a knife from the kitchen for her protection, but he continued advancing towards her. It was only at this point that she lost her self-control and stabbed him, thereby causing his death.

The elements to be proven for the defence of provocation to succeed are as follows:

  1. That the accused person had been deprived of his self-control by the provocation. The accused’s behaviour during the time of the offence is of great evidential value. The loss of self-control must be sudden and temporary, causing the accused person to be so subject to passion as to make him lose control over his mind. In the example above, the provocative circumstances leading up to the stabbing, including the sustained and violent abuse by the accused person’s husband, coupled with his threats against her and their daughter, led to her sudden and temporary loss of self-control.
  2. The provocation must have been “grave and sudden”. This involves the use of an objective “reasonable man” test. Under this test, the main consideration is whether an ordinary person of the same gender and age as the accused person and sharing his characteristics, if placed in the same situation as him, would have been so provoked as to lose his self-control. Referring to the above example, the provocation was grave and sudden, especially since the husband was preventing her from leaving the apartment and threatening to harm her and their daughter.

One situation under which the defence of provocation is expressly disallowed is where the accused person had voluntarily sought or provoked the provocation for the purpose of using it as an excuse for killing or doing harm to the other person.

For instance, the accused person gets into a disagreement with another person and keeps tailing and pestering the latter. Fed up, the other person stops, turns around, and swings a weapon at the accused person (i.e. the provocation). The accused person takes out a weapon of his own and causes death to the other person. As the accused person had voluntarily sought the provocation, he cannot rely on the other person’s provocation as an excuse for causing his death.

Sudden fight

The defence of sudden fight is a special exception to murder. The scenario envisioned by the defence is where a killing occurred during an unexpected fight between the accused person and the victim.

In 2014, a brothel owner was charged with murder after he had bludgeoned a pimp with a dumbbell rod, over S$6,500 that he believed the latter had stolen from his pocket. He tried raising the defence of sudden fight, but this was rejected, as the court found that the third element (explained below) was not satisfied. The accused person had undue advantage over the victim, given that he was armed with a weapon, and had an advantage over him in his physique.

Accused persons seeking to raise the defence of sudden fight must prove the following elements:

  1. That they caused the victim’s death in a sudden fight in the heat of passion upon a sudden quarrel. The emphasis is very clearly on the requirement of suddenness, which in turn requires there to have been a very short interval between the quarrel and the fight. The longer the interval, the more unlikely that the defence will be applicable.
  2. The killing must not have been pre-meditated, i.e. the killing must not have been planned. In another case, the accused person had armed himself for a robbery, and carried out a relentless and cruel stabbing frenzy with the intention of silencing the victims. The court found that the defence of sudden fight was unavailable to him.
  3. The accused person must not have taken undue advantage of the victim. In other words, the parties to the fight must have been on more or less equal footing. For example, if the accused person had commenced the fight with a weapon against an unarmed victim and had killed him with it, then the accused person would likely be regarded as taking undue advantage, and the defence of sudden fight would accordingly not succeed. Apart from being armed with a weapon, the accused person’s relative physique as compared to the victim is also another point that will be taken into consideration.
  4. The accused person must not have acted in a cruel or unusual manner when causing death in the fight.

Broadly speaking, the defence of consent operates in this way: if a deceased person above the age of 18 years is killed with his own consent, then the accused person’s charge will be reduced from murder to culpable homicide not amounting to murder.

An illustration of this is as follows: A and Z are both above 18 years of age. The pair decide to commit suicide together by drinking poison. With Z’s consent, A pours poison down Z’s throat, and Z dies. Thereafter, A changes his mind and decides not to drink the same poison. As A has caused Z’s death, albeit with Z’s consent, A has committed culpable homicide not amounting to murder and not murder.

The elements to be proven in order to invoke the partial defence of consent are:

  1. The victim must be above 18 years of age.
  2. The victim must have unequivocally given his consent to being killed, with full knowledge of the identity of the person who is to kill them and the method of killing.

Diminished responsibility

The defence of diminished responsibility is closely related to that of unsoundness of mind above, as in both scenarios, the accused persons are seeking to reduce their criminal responsibility on account of a mental disorder. However, there are two key differences between the two defences:

  1. Unsoundness of mind is a general exception, and hence applies to all offences. On the other hand, the defence of diminished responsibility is a special exception, and hence only applies to murder and certain drug-related offences.
  2. Unsoundness of mind results in an acquittal, albeit a qualified one (as described above). On the other hand, diminished responsibility is only a partial defence, and reduces the charge from one of murder to culpable homicide not amounting to murder. Thus, even if the defence of diminished responsibility is successfully raised, the accused person will still be convicted and sentenced accordingly.

In 2020, an accused person planned to kill his girlfriend, intending to end his life thereafter, because he suspected that she was cheating on him, and because he was facing financial troubles at work. He splashed acid on her face while she slept, slashed her arms with a knife and left her to bleed on their bed. He then took sleeping pills and fell asleep next to her. Both survived, though the victim suffered considerable injuries and trauma. He subsequently tried to rely on the defence of diminished responsibility and succeeded in doing so. The court was persuaded by the assessment of an Institute of Mental Health psychiatrist that the accused person had major depression at the time of the attack that impaired his judgement and self-control and contributed to his offending. His charge was reduced from attempted murder to attempting to commit culpable homicide and he was jailed for 4 years.

Another example where the defence of diminished responsibility was raised, albeit unsuccessfully, was in 2023 when a domestic helper was found guilty of murder for stabbing her employer’s elderly mother-in-law to death. The victim had threatened to send the accused person back to her agent, and the accused person attacked and stabbed her to death, before breaking a lock on a cupboard in the master bedroom and retrieving her belongings. She washed the knife and changed her clothes before leaving the flat. Upon her subsequent arrest, she fabricated stories of the victim being stabbed by two fictitious men. The accused person argued that she suffered from mixed anxiety and depressive reaction or an adjustment disorder with mixed anxiety and depressed mood at the time of the killing. However, the court rejected this, as her actions after the stabbing, including her vivid description of the stabbing, were inconsistent with her claim that she did not know what she was doing.

To invoke the defence of diminished responsibility, accused persons must prove the following elements:

  1. At the time of the killing, they were suffering from an abnormality of mind. The term “abnormality of mind” is not defined but has been accepted to refer to a state of mind so different from that of an ordinary human being that a reasonable man would term it abnormal. As can be seen from the example above, major depression, backed by the assessment of a psychiatrist, can be sufficient to satisfy this element.
  2. The abnormality of mind arose from a condition of arrested or retarded development of mind, or from any inherent cause, or was induced by disease or injury. To fit the causes of the abnormality of mind into one of the above conditions, evidence from a medical expert often forms a crucial part of the accused person’s case.
  3. The abnormality of mind substantially impaired their capacity to know the nature of the act or that it was wrong, or to control their conduct. This was the weakness in the domestic helper’s defence, as the circumstances were inconsistent with her being unable to know the nature of the act or that it was wrong, or to control their conduct.

– –

In conclusion, there are many defences available to accused persons. However, whether the defences are appropriate for the circumstances will ultimately depend on the particular offence that accused persons have been charged with, as well as whether the elements of the defences can be satisfied on the face of the circumstances surrounding the commission of the crime.

If you or your loved ones have been charged with committing a criminal offence, and wish to consider your legal options, in particular, whether and which legal defences to raise, you are strongly encouraged to seek further legal advice from a criminal defence lawyer. A criminal defence lawyer will be able to advise you on which defences are available and applicable in your case, as well as represent you in the matter if necessary.

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