Altantunya case: Motive alone isn't sufficient

The prosecution said they would prove the affair between Razak and Altantunya and that there was a conspiracy.

It seems the DPP is trying to establish motive and conspiracy as the elements of homicide.

Murder is defined as an unlawful killing of a human being in the King’s peace with malicious aforethought. Motive for killing alone is insufficient to constitute an act of homicide. The Actus Reus for murder is unlawful killing. The prosecution must prove that the act is voluntary (R v Bratty), AND it must be factual and legal cause of death (R v White). The legal cause must be substantive and operative (R v Cheshire) and the cause of death operates unless it is broken by an intervening Act (R v Smith).

The prosecution therefore, must establish beyond reasonable doubt that the accused had the necessary Actus Reus (the act that caused the death) and the necessary Mens Rea (the intention to kill), and that the act was the factual cause of her death in the absence of any notus actus intervenien (intervening events).

DPP Majid said evidence would be adduced to show that Altantunya's death was caused by "probably blast-related injuries" of being blown up alive.

In fact this would make the additional prove of causation harder as the prosecution would now have to establish that she was not killed before she was blasted, which means, the prosecution must now proved with evidence that she was alive prior to the blast that killed her. Secondly, the DPP would now also have to prove that the accused had conspired with others to order the blasting that was the factual caused of the death. Since the accused was not at the scene of the killing, then the prosecution had to established that there was factual evidence that the accused had instructed the blasting that killed her. In the event that there are evidence that she had already died before the blast, then the accused here would not be guilty for the killing. As an example, if there is evidence that the killer had only instructed the killing by way of using a knife, then the use of explosive would be insufficient to constitute an act of murder.

It was reported that the DPP is trying to establish that the accused had planned the murder.

In criminal law, Actus Reus and Mens Rea are the necessary ingredients of a crime of murder. It must be proved. Then, it must be also proved that the act was the factual cause of the death (that is, there is no intervening events).

Voluntary Unlawful killing - The actus reus required evidence that the unlawful killing of a human being was voluntary. (Bratty v AG for Northern Ireland (1963). Lord Denning in Bratty stated that the requirement of the act to be voluntary is essential, not only in a murder case but in every criminal case. It must be proved that the accused consciously willed that conduct.

The prosecution need to prove that the accused had intentionally did an unlawful and dangerous act which inadvertently caused the victim’s death (Newbury and Jones). The unlawful and dangerous act must be positive and must have caused death (Cheshire).

Factual & Legal cause of death - The prosecution must also proved that the act was a factual and legal cause of the Victim’s death. In R v White (1910), the accused intentionally put cyanide in his mother’s drink to kill her but however, the mother died of heart attack instead. Legal cause must be a substantial and operative cause of the Victim’s death. In Cheshire (1991) CA, Beldam LJ said that the act must be more than insignificant and that the accused could not be exculpated even if medical negligent was the immediate cause of the Victim's death.

Novus actus interveniens - The cause must operates unless it is broken by an intervening act, Novus actus interveniens, In Smith (1959), it is held that unless the second cause is so overwhelming as to make the original wound merely part of the history, the first cause still operates. In Blaue (1975) CA, the victim, a Jehovah Witnesses, refused blood transfusion that would have probably saved her life, later died of blood loss. Accused was guilty of manslaughter, Lawton LJ said that people who has apply violence on other people must take their victim as they finds them (Thin Skull Rule), not only their physical condition but also their religious beliefs. Similarly in the case of Holland (1841), the victim neglected to treat his wounded finger which in turn resulted in a lock- jaw, and he died. The accused was guilty of murder.

Apart from the actus reus, the prosecution must also proved beyond reasonable doubt that the accused had the necessary Mens Rea, which is the intention to cause death or to cause grievous bodily harm. The mens rea requirement for murder is malicious intention to cause death or grievous bodily harm (R v Moloney). Grievous bodily harm means serious bodily harm: Smith.


The mens rea required is intention to commit the act and not intention to kill or cause grievous bodily harm (Newbury and Jones).

The judge is not bound by law to infer intent or foresight. It must be a natural and probable consequence – shall decide whether there is intention or foresee that result.

In the current case, the accused could be charged for the offence of conspiracy. If convicted, they would be guilty of conspiracy to commit the substantive offence or offences in question. The sentence would follow the same punishment as in the substantive offence.

Conspiracy is defined as:

‘If a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either –

a) will be necessarily amount to or involve the commission of any offence or offences by one or more parties to the agreement, or

b) would do so but for the existence of facts which render the commission of the offence or any offence impossible,

he is guilty of conspiracy to commit the offence or offences in question.

The actus reus in conspiracy consists of an agreement between the parties on a course of conduct that will necessarily amount to the commission of any offence.

An agreement may be expressed or implied and is complete as soon as the parties agree. The conspiracy must be communicated between the parties who should intend that the agreement be carried out.

Parties to an agreement to commit a crime can be between two or more people. Where more than two are involved, it is not necessary for them all to agree together. The agreement can take the form of a ‘chain’ provided that all concerned have a common purpose relating to the commission of the offence.

The course of conduct that shall be pursued includes that the parties intended to act or intended the consequences of the act.

Mens rea to be proved is intention to pursue a criminal course of conduct. Recklessness is not sufficient. Since intention is the only mens rea, there is only conspiracy to commit murder.