CRIMINAL LAW – CONCURRENCE

The concurrence principle

It is widely accepted that both the actus reus and the mens rea must coincide in time to form an
offence – Fowler v Padget affirmed in Abdul Ra’uf bin Abdul Rahman v PP

When a defendants’ actus reus and mens rea appear not to coincide, the prosecution can rely upon
several strategies to assist them. It can be proven that there was a continuing act (Fagan,
Kaitaimaki) or an illegal omission (Miller) in which case liability would be found.

If not, the court can have resort to the “merger” doctrine, generally termed as the Thabo Melli
approach.

The merger doctrine

The classic case is that of Thabo Melli v R – where it states that a defendants’ acts can be considered
part of the same transaction, and if he had the mens rea at any point in time he is liable for the
consequences of that act.

Thabo Melli v R
The defendants conspired to kill the victim, and injured him. Believing him to be dead, they threw
him off a hill, after which he died of exposure.

The problem arose as they had the mens rea but not the actus reus for homicide at the first event,
and the actus reus but no mens rea at the second event.

The intention was formed at the beginning and was the intention to kill. Hence, the separate acts
were treated as the same transaction, and they were liable as they had the mens rea at a point in
time while doing the act.

Preplanning and intent required?

A premeditated plan to kill is not required to establish the merger doctrine – see Church & Le Brun

See also Thavamani – an intent to kill can be formed in the spur of the moment and still qualify to
establish this doctrine.

Per Shaiful Edham – The doctrine is generally applicable to cases of s300(a) and (b), but not to (c)
(see Wang Wenfeng); whether it applies to (d) is an open question

Church
The defendant knocked the victim unconscious, and believing her to be dead, threw her into the
river. She drowned.

Held that he was still guilty of manslaughter even though the acts were not done pursuant to a
premeditated plan to kill.
Le Brun
The defendant knocked the victim unconscious, and in the process of dragging her unconscious
body, dropped the body and killed the defendant.

Held that if the defendant did that if he thought he had killed and wanted to dispose of the body,
it would constitute murder.
Moral congruence

A possible explanation for the merger doctrine is that it involves cases where the defendants’ earlier
moral culpability is equivalent to the effects of his subsequent conduct, and thus the courts are
more willing to impose liability. If the subsequent conduct was an attempt to conceal the evidence,
it will be no bar to liability.

If the death was a result of a subsequent well-intentioned effort to help, it will be treated as a
separate incident as the defendant is not as morally culpable at that point in time. – Le Brun

Mohamed Radi v PP
The defendant knocked the victim unconscious, and believing her to be dead he concealed her
body under a sheet and removed the evidence. It was unclear whether the victim died of her
injuries or asphyxiation caused by being under the sheet.

Held that the defendant could fall within the merger doctrine, as his subsequent act of covering
up the evidence made him as morally culpable as his initial act.

Transferred mens rea doctrine

If a person does an act which causes death, but instead kills someone else other than the intended
target, he is still liable for culpable homicide notwithstanding that his original mens rea was not
targeted at that specific person. This is borne out in s301 of the Penal Code:

301. If a person, by doing anything which he intends or knows to be likely to cause death,
commits culpable homicide by causing the death of any person whose death he neither
intends nor knows himself to be likely to cause, the culpable homicide committed by the
offender is of the description of which it would have been if he had caused the death of
the person whose death he intended or knew himself to be likely to cause.

However, this doctrine is inapplicable for a different offence, if the other offence committed does
not match up with the mens rea of the initial offence intended.