Elements of a crime PDF

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Lecture notes on the elements of a crime for Crim Law 1114 with additional explanations....

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Elements of a Criminal Offence 4.1 Introduction ‘A crime may be defined as an act (or omission or a state of affairs) which contravenes the law and which may be followed by prosecution in criminal proceedings with the attendant consequence, following conviction, of punishment’ (Glanville Williams)  

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Crimes are public wrongs; central role of the state in criminal law -> Prosecution has to prove criminal liability -> if successful, punitive consequences o To establish criminal liability, the prosecution must put together all the required pieces, known as elements of a crime o What elements are required for an offence depends on the definition of the relevant offence o Some crimes are defined by statute, others by the common law o Criminal liability for any crime requires that the prosecution is able to prove all of the required elements beyond reasonable doubt A criminal offence can be broadly broken down to two main elements based on the old Latin maxim: ‘actus non facit reum nisi mens sit rea’ Or ‘an act is not guilty unless the accused also has a guilty state of mind’

In general, to be criminally liable, two elements must be present: Actus Reus (‘guilty act or behaviour’) AND the Mens Rea (‘guilty mind”) -- they must be contemporaneous *

Criminal liability requires: 1. Performance of an actus reus  

External or physical element(s) of an offence Typically a voluntary act; sometimes a voluntary failure to act

2. With the requisite mens rea  

Mental or fault elements(s) of an offence Typically subjective, esp. for serious crimes; rarely objective

3. (Absence of a lawful excuse, such as self-defence) Example 

s.18 Crimes Act 1958 o A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence

1. Actus reus: “causes injury to another person” – external conduct 2. Mens rea: “intentionally or recklessly” – State of mind 3. In the absence of a defence: “without lawful excuse”

However, if a person strikes another person but lacks the mens rea, no criminal offence under s.18 has occurred. Conversely, if a person tries to hit another person intending to cause them an injury but fails to cause an injury has not fulfilled the requirements of s.18 and thus no criminal offence has occurred. The prosecution bears the legal burden AND evidential burden 

to prove the Actus Reus (AR)

and the contemporaneous 

Mens Rea (MR) elements

AND to disprove any defence raised (e.g. self defence)

4.2 Actus reus Actus reus = external/physical element 

AR depends on the offence – typically the prohibited conduct is an act of some kind, but under some circumstances a failure to act (omission), or even a state of affairs, might be enough

Actus reus: Omissions  

The AR usually involves an act or a serious of acts Liability for conduct involving omissions is less common o Common law: reluctance to punish omissions – ‘no duty to be good’ -> no liability for failing to act, unless the accused is under a legal duty to take positive action o A legal duty to act may arise e.g. by statute, or by virtue of a special relationship, or because of the accused created a situation of danger o No common law duty to rescue – unless you created the danger!

Actus reus: state of affairs  

Liability for a state of affairs (or state of being) – history under common law (vagrancy, etc.) Now rare for serious offences; more common for summary:

Actus reus may involve:   

Particular conduct, or Conduct performed in specific circumstances (e.g. sexual acts in the absence of consent), or Conduct that results in a certain consequence (e.g. injury or death)

Actus reus: Voluntariness

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To establish the actus reus of any offence, the prosecution must prove that it was voluntarily performed by the accused voluntarily performed = ‘freely willed’ voluntariness ≠ mens rea: both are about the mind, but voluntariness is about being in control of one’s actions, not about the intent behind said actions Voluntariness is presumes, unless the accused raises evidence to the contrary (Ugle v The Queen) Though voluntariness is presumes, conduct may, however, sometimes be involuntary E.g accidents, reflex actions, acts done in impaired consciousness (automatism, extreme intoxication) If the accused raises the issue and argues that the conduct was involuntary, the prosecution must prove the conduct was in fact willed (Ugle v The Queen) o In Ugle v The Queen, a high court case, the deceased died from a knife wound to the chest. The accused was holding a knife when the deceased sustained the wound. But the accused claimed he was holding the knife in case he needed to defend himself as the victim had attacked him with a cricket bat earlier that day. When the victim attacked him again with the bat, the accused said he lost his balance and put his hand up to push the deceased. o The evidence suggested that it was at least possible that the accused did not consciously use the knife to attack the victim o The high court unanimously held that should have been directed about unwilled acts in this case o The burden is then on the prosecution to prove it was in fact voluntary

Actus reus: Causation 

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Distinction between conduct and result crimes o Conduct crimes: prohibited (voluntary) conduct itself enough  E.g driving recklessly or having a gun- doesn’t need to be used o Result crimes: causing the prohibited consequence is also required -> causation For result crimes, the prosecution must prove that the accused’s conduct caused that result to occur (e.g. injury or death) Requires an unbroken chain of causation between the conduct and the result Causation is usually not problematic to establish – but it may become a problem where there is some remoteness between the conduct of the accused and end result (e.g. delay, acts of others) No single test for causation, a matter for the jury to determine (“did D’s action cause V’s death) “Achievement of a coherent theory virtually impossible” (McHugh in Royall) – But guidance from case law ->

Actus reus: causation in Hallett [1969]    

D attacked V on a beach rendering him unconscious D said he left V unconscious in what he thought was a position of apparent safety, with V’s ankles in a few inches of water. D drowned when the tide came in. D argued he did not cause V’s death, the tide did. ‘The question to be asked is whether an act or series of acts… consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a

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sufficiently substantial causal effect which subsisted up to happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event.’ Cause mean ‘a cause’; the question is whether the casual connection is sufficiently substantial; is the second cause enough to overwhelm the first? Hallett is authority for the proposition that casual link is not broken by the ordinary operation of natural causes. An extra ordinary natural disaster might be regarded as something that could break the chain of causation.

Actus reus: causation in Blaue [1975]  

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D stabbed V, a young woman aged 18, several times, piercing her lung. She was taken to hospital and told she needed a blood transfusion before surgery. She refused the blood transfusion on religious grounds and dies the next day. D argued he did not cause V’s death; V caused it by her unreasonable refusal of life-saving medical treatment. ‘The question for decision is what caused her death. The answer is the stab wound. The fact the victim refused to stop this end coming about did not break the casual connection between the act and death.’ V’s refusal to obtain medical treatment for an injury caused by the accused is not an independent cause of death – “You take your victim as you find them” (aka the ‘thin skull’ rule) Causation is a question of objective inquiry – not about what the accused thinks will happen

Actus reus: Establishing causation 1. Was D’s conduct an ‘operating and substantial cause’ of the result? 

D’s conduct does not have to be the only cause, but it has to be substantial and still operating

2. Is D arguing that the chain of causation has been broken by an intervening act? 

If so, use the particular tests for particular circumstances: o ‘act of god’ (extraordinary?) o Act of the victim (what kind?) o Act of a third party (who?)

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The actus reus is the physical element of a crime, and refers to the conduct prohibited by the criminal law The actus reus often, but not always, involves an act or requires a series of acts The conduct that forms the actus reus has to be voluntarily performed – involuntary conduct cannot form the basis of the actus reus. If the actus reus of the relevant offence requires a particular result, the prosecution had to prove that the voluntary conduct of the accused caused the result.

Summary

   4.3 Mens rea 

Mens rea is the ‘guilty mind’ element that has to accompany the actus reus – establishes the moral culpability of the offender

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Varies by offence (statute, common law): for instance, intention, recklessness, dishonesty, knowledge Criminal law prefers ‘subjective’ fault elements, such as intention or recklessness, over ‘objective’, such as negligence The prosecution has to prove that accused possessed the requisite state(s) of mind when performing the actus reus

Mens rea = mental or fault element 

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The preference for subjective fault elements is rooted in the idea that generally people are considered to be more deserving of punishment when they subjectively recognise the harmfulness of their conduct Especially for serious offences: D’s moral culpability seen to be greater when indents the harm or realises it is likely o Cf. use of criminal law to regulate everyday behaviour via less serious offences (negligence or even ‘non-MR’)

Intention: o Entirely subjective o Direct intention: D’s conscious aim or purpose when engaging in particular prohibited conduct Intention is not the same thing as motive: o Motive is about the underlying reasons behind an individual’s decision to perform (or not) particular conduct Direct intention involves the accused having a purpose, deciding to bring something about (insofar as they can) What if the outcome is unlikely and the accused knows it (but it is their purpose nonetheless)? o That is intention, if the person is harmed or whatever they intent does happen that is men rea What if the outcome is very likely (or even virtual certainty) but not the accused’s direct purpose?

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Oblique (indirect) intention – in Victoria, treated a recklessness (see Crabbe)

Mens rea: recklessness   

Where the accused pursues a course of action, aware of but consciously disregarding the risks flowing from those actions, including that of harmful consequences Subjective: the accused is to blame because they turned their mind to, and were aware of, the probability of the harmful consequence (see Crabbe) Recklessness must not be confused with not thinking of risks or (objective) carelessness (negligence)

Mens rea: negligence  

Serious (gross) failure to comply with the standard of care of an ordinary reasonable person would exercise Objective standard of reasonableness that does not hinge on what the accused subjectively intended or was aware of

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Negligence, for the purposes of criminal law, must be really serious or ‘ gross’ = ‘a great falling short’ of the standard of care required of a reasonable person ( Nydam)

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The standard of comparison is the ordinary reasonable person (‘man on the Clapham omnibus’ (average man)) but can such a person exist? o

The idea of what is reasonable can vary and be a highly discretionary standard – can hide gender, racial or disability biases

No mens rea required offences 

No mens rea required: ‘strict liability’ or ‘absolutely liability’ offences (for statute law, defence of honest and reasonable mistake of fact available)

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The prosecution only has to prove the actus reus (statute; CL presumption against strict liability)

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Moral blame irrelevant -> may operate harshly towards defendants- but rarely serious offences

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Used in contexts where much care needed to avoid potentially great harm, where carefulness needs to be encourages – road safety, occupational health and safety, environmental legislation

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Typical contexts for non-MR are; road safety, occupational health and safety and environmental legislation.

Summary  

Mens rea is a generic term for the mental or fault element of a crime. Mens rea elements can be divided into subjective and objective elements, with the former being more common. Intention and recklessness are common mens rea elements or serious crimes.

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Subjective mens rea elements require the prosecution to prove that the accused possed the required mental state- and this can be difficult. This in part explains the recent growth of negligence- based offences and non-mens rea offences.

4.4-4.5 Concurrence and proving criminal liability Contemporaneity/concurrence    

The requirement of ontemporaneity/concurrence is an underlying feature of the maxim ‘actus non facit reum nisi mens sit rea’ It means that the actus reus and the mens rea elements of the offence must be contemporaneous i.e. exist at the same time -> there can be no criminal liability unless the prosecution can prove that the AR was performed while the accused had the requisite MR In most cases, the requirement of contemporaneity is usually unproblematic

In rare instances the requirement can pose difficult issues for the prosecution case, as in Thabo Meli v The Queen [1954] 

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The case centres around four men who plotted to kill another man. The four defendants invited their intended victim to a hut and encouraged him to drink beer until he was drunk. They then hit him over the head and planned to fake an ‘accident’ so that they would escape any unpleasant legal consequences. The blow was supposed to kill the man, but it only rendered him unconscious. Assuming the man was dead, the defendants rolled his body off a cliff and moved items around to make it look like a tragic accident. Medical evidence later established that the man later died from exposure, not from the knock on the head or fall from the cliff. The defendants argued that their clients were not guilty because the man had died well after the acts that intended to cause his death, and not as a direct result of those acts. o It was pointed out that the men committed two separate acts: attacking the man in the hut and rolling his body off the cliff. o They submitted that at the time the man was struck over the head, the intention to kill was present, but the man was not actually killed. o They further argued that at the time the man actually died from exposure, the intention to kill was no longer present. o The ultimate submission was that the AR and MR did not coincide and the men could only be found guilty of ‘culpable homicide’ rather than the more serious charge of murder.

The sequence of events treated as one indivisible transaction. 

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The Privy Council found that dividing the conduct into two separate acts was not possible, and that it was really just one transaction. The technicality that Thabo Meli relied on was not accepted, with Lord Reid stating: “There could be no separation such as that for which the accused contend, so as to reduce the crime from murder to a lesser crime, merely because the accused were under some misapprehension for a time during the completion of their criminal plot.”

Fagan v Metropolitan Police Commissioner [1968]  

Similar contemporaneity problems arose in Fagan Act, followed by omission? No, a continuing act:

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Facts: Fagan was sat in his car when he was approached by a police officer who told him to move the vehicle. Fagan did so, reversed his car and rolled it on to the foot of the police officer. The officer forcefully told him to move the car off his foot at which point Fagan swore at him and refused to move vehicle and turned the engine off. Fagan was convicted of assaulting a police officer in the execution of his duty. Fagan subsequently appealed the decision. Issues: Fagan appealed on the basis that there cannot be an offence in assault in omitting to act and that driving on to the officer’s foot was accidental, meaning that he was lacking mens rea when the act causing damage had occurred. The legal issue here was whether the prosecution had proven facts which had amounted to an assault. For an assault to be committed both actus reus and mens rea must be established at the same time. It was agreed that an omission cannot establish an assault. The court held that: o ‘Although assault is an independent crime and is to be treated as such, for practical purposes today, assault is generally synonymous with battery.’ (at page 433)

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On this basis, it was held that Fagan’s crime was not the refusal to move the car but that having driven on to the foot of the officer and decided not to cease the act, he had established a continual act of battery. o This meant that actus reus and mens rea were present and as such, an assault was committed. Fagan’s conviction was upheld.

Proving criminal liability  

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Criminal law is administrated by the state, reacting to public wrongs -> it is the role of the prosecution to prove that the accused performed the actus reus, did so with the requisite mens rea, and, if there is doubt, that the actus reus coincided with the mens rea The presumption of innocence means the accused is presumes to be innocent until the prosecution has proved D’s guilt Standard of proof: for there to be criminal liability, the prosecution must prove its case (e.g. each element of the offence) beyond reasonable doubt

Burden of proof  

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Legal burden: duty to persuade jury -> on the prosecution regarding the elements of the offence, and rebutting general defences Evidential burden: duty to raise sufficient evidence on a issue for the judge to allow it to be considered by the jury -> on the prosecution but also on the accused regarding general defences (e.g. self-defence) Exception: affirmative defences (mental impairment) – the accused bears burdens (on the balance of probabilities)

Summary 

The actus reus and mens rea elements of the offence must be contemporaneous

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The prosecution bears the legal burden to persuade the jury, beyond reasonable doubt, of the guilt of the accused, by demonstrating the accused performed the actus reus while having the requisite mens rea. Both the prosecution and defence carry the evidential burden to support their statements by providing evidence....