Elements of a Crime - Criminal law notes PDF

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Elements of a Crime 1. PHYSICAL ELEMENTS (ACTUS REUS) • Actus Reus (an act) can be divided into three main categories 1. Conduct - acts, omissions or states of being that are prohibited by the law • E.g. driving in excess of the speed limit. 2. Circumstances - the context in which the accused’s conduct takes place • E.g. to have consensual sexual intercourse is not a crime, but it is, if one of the parties is under the age of 16yrs. 3. Consequences - a particular result that is caused by the conduct of the accused. Here, it is not what was done that is in issue, but what consequence was caused. • E.g. caused GBH

2. VOLUNTARINESS • The prosecution in most crimes will be require to prove that the accused’s acts were voluntary. • There is a presumption is that the action of the accused was voluntary: Falconer • The accused can rebut this presumption by satisfying an evidentiary burden, and only then will the prosecution need to prove that the action was voluntary beyond all reasonable doubt: Falconer. • NOTE: as demonstrated in Falconer, the evidentiary burden is not easy to satisfy, and usually requires expert medical opinion. • As outlined in Ryan v R, to satisfy the principle of voluntariness the procession must prove that the accused’s act was willed and thus, at a minimum may amount to a will muscular contraction. • In determining voluntariness, the court looks at the whole context of acts, and the probable consequences of those acts (ie, not just the ‘startle’ moment): Ryan v R. • This will usually involve taking into account the sequence of event leading you to the act: Ryan v R

What constitutes a relevant act? • As held in Murry v The Queen the ‘act’ in question should not be viewed too narrowly (e.g. the actual pressing of the trigger with ones finger). Rather, the ‘act’ is discharging the loaded shotgun, and that comprised of a number of different movements: loading the gun, cocking it, presenting it and firing it. • Consideration should be given to of the whole of the act not just the isolated component of squeezing the trigger: Murry • In Gillett, the court held that where a person experiences a state of epilepsy or is stung by a shawm of bees their conduct may be involuntary. • However, the court dismissed Gillet’s appeal on the basis that his driving before the seizure, while knowing the risk that is epilepsy posed, was a voluntary act of dangerous driving. • An act that happened when one is asleep is an act deemed involuntary: Jiminez • However, one can be held responsible for the period of time which immediately precedes his falling asleep (ie, when he was driving in a drowsy state), if that period was close enough to the accident and if the driving during that period caused the crime: Jiminez

3. MENTAL/FAULT ELEMNT (MENS REA) Mens Rea (the guilty mind) does not refer to any particular state of mind, but rather is a more generic term for a number of various mental states identified by law. • Different offence will require the accused to have satisfied different levels of mens rea standards before they are deemed guilty of that offence. • Where legislation is silent on the question of mens rea (i.e. the statute only specifies the acts reus), there is a presumption that mens rea is still required: He Kaw The v R (1985) 157 CLR 523.

Mens rea falls into four general categories 1. Intention (subjective) • Meaning to do a particular act (basic intent) or to bring about a particular consequence (specific intent) • Where the accused foresaw the consequences of his or her actions or culpable commissions and actively desired that the consequences should occur. • Not to be confused with motive • It may be used to help prove intent: De Gruchy • This require a subjective inquiry into the mind of the accused. • While generally the High Court in R v O’Conner rejected the distinction between ‘specific’ and ‘basic’ intent, there are some circumstances in NSW legislation whereby the distinction is relevant. • E.g. Part 11A of the Crime Act 1900 (NSW) includes the distinction between ‘crimes of specific intent’ and other offences. • Importantly, following the NSW Court of Criminal Appeal it must be recognised that some criminal offences required that the prosecution prove both ‘specific intent’ and ‘basic intent’ elements beyond reasonable doubt. • E.g. the offence of ‘using an offence weapon with the intent to resist arrest’ in s 33B(1) of the crimes Act 1900 (NSW) includes both basic intent to use an item as an offensive weapon and a specific intent to prevent or hinder lawful apprehension or detention. 2. •

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Knowledge (subjective) An awareness by the accused that circumstances exist or consequences follow. E.g. that he or she has something in his or her possession, such as a prohibited substance, that was unlawful to have. This requires a subjective inquiry into the accused’s state of mind. Wilful Blindness: According to the High Court in R v Crabbe (1985), where the accused is unaware of the harmful consequences only because he wilfully tried to block himself from knowledge, he will still be deemed to have been aware under the principle of wilful blindness. However, in Pereira v DPP (1988) the High Court expressed caution surrounding the use of the wilful blindness principle however it was not overturned. Thus, it may have evidentiary relevance whereby the jury may rely on the principle to decide if the accused has the necessary knowledge (or intention, foresight or was reckless, defending on the fault element require for the offence in question) Recklessness (subjective) Where the accused foresaw the consequences of his or her actions or culpable omissions, but proceeded in the face of that foresight. NOTE: the degree of risk and bounds of recklessness are increasingly offence specific; major issue in statutory interpretation of communal offences in NSW. Generally, foresight of the POSSIBILITY of the consequences or omission is required to satisfy recklessness. However, in the offence of murder, reckless indifference to human life is made out by a foresight of the PROBABILITY of death resulting from the act or omission: See wording of s 18 of the Crimes Act. NOTE: A person may be charged with a reckless offence even if that person intended the result; that is, it is not possible for him or her to argue that he or she was not reckless because he or she intended what happened: See Crimes Act s 4A or Criminal Code (Cth) s 5.4 Negligence (objective) Although the accused did not foresee that the consequence of his or her actions would occur, a reasonable person in the accused position would have that foresight.

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Criminal liability is established where the accused does not meet the standard of reasonableness in the sense that the accused’s departure from the standard of conduct of the reasonable person is sufficiently great to warrant criminal punishment (Anderson). Nydam v R (Manslaughter case): criminal negligence was said to involve ‘such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high degree of risk that health or grievous bodily harm would follow, that the doing of the act merits criminal punishment’

4. COINCIDENCE OF THE ACTUS REUS AND MENS REA • The High Court in Meyers v The Queen illustrated that for the accused to be held criminally liable acts reus and mens rea must coincide in time. • Over time however , one could argue that the vernal principle of coincidence has bee ‘stretched’ • In Thabo Meli, the Privy Council held that, in circumstances where there were a number of acts that were part of a ‘one series of acts’, coincidence between actus reus and mens rea could fall at any point in the series of acts (Anderson, p. 30). • FACTS: The case involved a preconceived plan to kill the victim, implemented when the accused struck the victim over the head. The accused, thinking the victim was dead, then rolled him over the cliff to make it look like an accident. In fact, at the time the victim was merely unconscious and ultimately died from the exposure. • The argument therefore, was that the accused could not be guilty, as at the time the body was rolled over the cliff (that being the actus reus), the accused lacked the intention to kill (that is, mens rea). The PC dismissed the appeal holding that it was all really one acts and could not be divided up in the way the accused suggests. • •

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In Fagan it was held that mens rea ‘can be superimposed upon an existing act’. FACTS: Fagan had assaulted a police officer by driving a car onto the officer’s foot (the acts reus). Shortly after, Fagan realised hat the car wheel was on the officers foot and refused to move it despite repeated requests from the officer to do so (formation of the mens rea). Thus, even though there was no mens rea when the actus rea was carried out, Fagan continued the act knowing what he had done. NOTE: the act was a ‘continuing act’ rather than a complex one. The court in R v Potisk outlined that actus reus and mens rea cannot coincide where the act was completed before the mens rea was formed (although results continued to flow from it). FACTS: the case involved an alleged larceny of money from a bank through an error by the bank when exchanging currency. Potisk did not realise the error until he went home, counted the money, and discovered there was an extra sum of money. He then decided to keep it. The majority of the Full Court of the Supreme Court of South Australia ruled that, despite the subsequent dishonesty, Potisk did not have necessary mens rea at the time when he performed the actus reus (that is, taking and carrying away of property of some value) and should be acquitted of larceny....