Plain text overview: LAW 2310 Error of fact and error of law 2 INTRODUCTION 3 THE LAW CONTAINED IN ARTICLES 76 AND 79 0F OF THE PENAL CODE § 76: Act of a related person or an error of fact who considers himself bound by the law. Section 79: Act committed by a person that is justified or by an error deemed justified by law. The maxim: ignorantia juris non excusat Ignorance of the law is not an excuse: ignorantia facit excusat Ignorance of the facts is an excuse The elements of error § 76 Error of fact In good faith (52) Believes to be bound by the law p/s-only 4 for an authorized person § 79 Error of fact In good faith Did he think he was justified by the law p/s person in general ERRORS MADE BY JUDICIAL OFFICIALS: JUDICIAL LAW (§§ 77 & 78) 5 § 77 provides: Nothing is an offence committed by a judge if he acts judicially in the exercise of a power conferred on him by law or believes in good faith that has been conferred on him. Although section 78 states that; Nothing in the exercise of a judicial decision or order of a court, or justified by the judgment or order of a court, if it occurs during the validity of such judgment or order, constitutes an offence, even if the court did not have the power to make such judgment or order, provided that the person: who performs the act in good faith, considers that the court had jurisdiction. ON THE PLEA OF ERROR 6 The defendant raises the plea of error if he was mistaken as to the fact or as to the law. The error must relate either to the elements of a criminal offence or to a defence on the merits that is recognised. The mistake must be the fact, not the law. The defense of error is based on the general maxim „Ignorantia facit excusat, Ignorantia juris non excusat“ This means that ignorance of the facts is an excuse and ignorance of the law is not an excuse. FACTUAL ERROR 7 The general rule is that when an error is alleged, the error must be an error of fact and not an error of law. An error of fact has no definition in the Criminal Code. In general, an error of fact always presupposes an error of opinion on the general facts. An error of fact, as used in jurisprudence, is defined as a state of mind, misconception or erroneous belief caused by ignorance, misunderstanding or misunderstanding of the truth resulting in an act or omission wrongly committed or suffered by one or both parties to the transaction without its erroneous character being intended or known at that time. An error of fact consists of unconsciousness, ignorance or forgetfulness of a fact, past or present.

Sections 76 and 79 of the Criminal Code deal with them in different contexts. CASES OF FACTUAL ERROR 8 Sulong bin Nain v. PP Mohamed Ibrahim v. PP Bhawoo Jivaji v. Mulji Dayal PP v. Khoo Chew Yew & Anor Mat Salleh v. Sarah Abdullah v. Regina Chirangi v. State Bonda Kui v. State of Kassim Isub Sab Error of law ignorantia juris non excusat Section 76 Nothing is an offence committed by a person who considers himself bound by the law in good faith by reason of an error of fact and not by reason of an error of law – Section 52 of the Criminal Code – reasonable diligence and prudence The word related to the law Example: If a soldier obeys an order to shoot, he falls under section 76, but if he is told that he can shoot if the suspect resists: he can fall under section 79. 9 Cases of legal error PP V KOO CHEH YEW & ANOR [1980] Looking at the intention of the drafters of the penal code, the wording of Articles 76 and 79 was primarily intended to adopt only the maxim and not its exception. The Federal Court has tried to embody the maxim and its exception in the event of an error of law in Article 79 LIM CHIN AIK V R [1963].

Contrary to the approach taken in PP V KOO CHEH YEW SANCOFF V HALFORD (Australian case) Obscene book – The defence of error was held to be an error because the defendants know the contents of the book but do not regard it as obscene. 10 Distinction between error of fact and error of law 11 Difficult to determine because it requires a perfect approach. On the basis of the discretion of the judges, i.e. taking into account the fact of each individual case. The onus is on the accused to prove that he or she believes he or she is committing a legally binding or justified act. If the judge concludes that there is an error of law, there is no defence to such ignorance of the law. Example: Under section 76 A, a police officer who has the right to arrest a person who has committed a crime, arrested a person because he mistakenly believed that he is the accused who committed murder but actually killed in self-defence, is not responsible because his misconception is based on facts. A, may raise an objection of error under Article 76. 12 ERROR FROM AN ISLAMIC POINT OF VIEW 13 Islam recognizes a crime by mistake For example: murder by mistake The error contains three elements; i The perpetrator must not intend to cause death or harm to the victim. ii. the offender must have committed a lethal act; and III.

The victim must have died as a result of the offender`s act. 14 In Islamic criminal law, the general principle is that a person is exempt from criminal responsibility if the act was committed accidentally. The Holy Prophet said: „My Ummah is free from mistakes, forgetfulness and deeds committed under duress.“ However, this does not mean that the accused is completely exempted because his act is still punished. Several authorities had said crimes had been committed accidentally. 15 The Holy Qur`an says, „There is no fault on you if you make a mistake; What matters is the intention of your heart. From this Ayah, we can conclude that if a person commits an act that violates Islamic law, he will not be punished in Hudud or Qisas, but will only be held responsible for Ta`zir. View the full document A factual error may be an exception in reducing or eliminating the person`s liability. A person cannot escape responsibility for intentional mistakes. An accused may argue that he or she never intended to commit the crime. The criminal act that occurred as a result of the error of fact according to the requirements of the situation or misunderstanding.