Mens Rea + Actus Reus PDF

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Assault Assault refers to either the crime of putting another person in fear of an unlawful contact, or the actual application of force without a lawful excuse. It is catergosied into many different types of assault, which can be broadly separated into common assaults and aggravated assaults. The principles governing common assault are as follows (s 61): 

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Actus reus: either of the following: 1. Traditional assault - an act or words causing the apprehension of imminent unlawful contact (ie, a threat). o The threat must have caused an imminent and immediate harm; generalised threats of future conduct will not suffice: Knight. o If, however, the circumstances are such that the threats are capable of creating an immediate and continuing fear, they will constitute assault: Zanker v Vartzokas. 2. Battery - the application of force without consent or lawful excuse. o Must be a positive act, cannot be an omission. However, can be a continuing act: Fagan v Metropolitan Police Commissioner. o No need for a strong force or any sort of injury - just the occurrence of an unlawful contact: Wilson. o Toucing a person's clothes counts as touching the person: DPP v JWH. o Spitting counts as sufficient application of force for the purposes of assault: DPP v JWH. o 'Defences' - application of force will not constitute assault if: 1.There is a lawful excuse. 2.There was consent on behalf of the victim.  However, consent is immaterial in unlawful situations or situations which the degree of harm is very severe: Brown. Mens rea: intention or recklessness to create an apprehension of immediate harm (traditional assault) or apply force (battery): MacPherson v Brown. Maximum penalties: o If tried on indictment: 2 years imprisonment. o If tried summarily: 1 year imprisonment.

Aggravated Assault Aggravated assault is an umbrella term for a range of assault offences which are more serious than the common assault offence. The assaults are considered 'aggravated' because of certain consequences, intents, or circumstances. Some of the 'consequence' driven aggravated assault offences, and their respective principles, are outlined here (ranked from least to most serious). 

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Assault occasioning actual bodily harm: s 59. o Actus reus: common assault + the occasioning of actual bodily harm.  Actual bodily harm has an ordinary meaning - must be more than mere transient and trifling: R v Donovan.  Includes psychiatric injury, but not mere emotions: Chan-Fook. o Mens rea: common assault (no need for specific intent to do actual bodily harm). o Max penalty: 5 years (7 if in company). Negligent infliction grievous bodily harm: s 54.

Actus reus: causing grievous bodily harm.  Grievous bodily harm is defined as “the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman... any permanent or serious disfiguring of the person... any grievous bodily disease": s 4. o Mens rea: negligence. o Max penalty: 2 years Reckless wounding: s 35 (3)-(4). o Actus reus: causing wounding.  Wounding requires an incision or puncture in the skin (dermis. not epidermis) : Shepherd. o Mens rea: recklessness. o Max penalty: 7 years (10 if in in company) Reckless infliction of grievous bodily harm: s 35 (1)-(2). o Actus reus: causing grievous bodily harm. o Mens rea: recklessness. o Max penalty: 10 years (14 if in in company) Infliction of wounding or grievous bodily harm, with intent to inflict grievous bodily harm or resist arrest: s 33. o Actus reus: wounding or causing grievous bodily harm. o Mens rea: intent to cause grievous bodily harm or intent to resist arrest.  Note: specific intent offence. Intoxication is relevant. o Max penalty: 25 years. o

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Domestic Violence and ADVO’s Apprehended violence orders can be made for the protection of people who fear abuse from others. These can be domestic (where the two persons are in/were in a domestic relationship), or personal (general). Orders are made under the Crimes (Domestic and Personal Violence) Act 2007, s 16 (domestic) and s 19 (personal). The requirements that must be satisfied for the application to succeed are as follows: The court must be satisfied on the balance of probabilities that the complainant has reasonable grounds to fear, and in fact fears: (a) that the defendant will commit violence against him (b) that the defendant will perform the following conduct to the extent that it justifies an apprehended violence order: a. intimidate him, or another person with who the complainant is in a domestic relationship with. i. Intimidation does not always require actual or threatened violence to the person or their property. b. stalks him.  The 'in fact fears' requirement is not necessary if: o the order is for a child. o the order is made for a person with appreciably below average general intelligence function. o in the opinion of the court:  the person for whom the order is made has been subjected to conduct constituting a violent offence in the past, and 

there is a reasonable likelihood that the defendant may commit a personal violence offence against him person, and  the making of the order is necessary in the circumstances to protect the person from further violence. If a ADVO is applied for, the complainant must have had a domestic relationship with the defendant. o A domestic relationship is defined covers a wide range of relationships, including marriages, de facto partners, house-mates, relatives, dependents etc: s 5. 

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Sexual Assault The key sexual assault offences in the Crimes Act are now: 

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s 61I Sexual assault: o Actus reus: having sexual intercourse with another when there is no consent. o Mens rea: knowledge of no consent (expansion of normal definition, see below). o Max penalty: 14 years imprisonment. s 61J Aggravated sexual assault: o Actus reus: normal sexual assault + circumstances of aggravation. These include (in this section):  Intentional or reckless infliction of actual bodily harm to the victim or a person nearby.  Threat to inflict actual bodily harm on the victim or a person nearby with a weapon or instrument.  The offender is in company.  Victim is under 16 years old.  The victim is (generally or at the time of the offence) under the authority of the alleged offender.  The victim is seriously physically or mentally disabled.  The offence is a part of a break and enter with intention to commit this offence or any serious indictable offence (note: specific intent).  The offender deprives the victim of liberty before or after the offence. o Mens rea: same as sexual assault (except where specific intent). o Max penalty: 20 years imprisonment. s 61JA Aggravated sexual assault in company: o Actus reus: sexual assault + in the company of others and either:  intentionally or recklessly inflicts actual bodily harm to anyone present, or  threatens to inflict actual bodily harm with a weapon to anyone present, or  deprives the liberty of the victim before or after the offence o Mens rea: knowledge. o Max penalty: life imprisonment.

Indecent Assault + Act of Indecency 

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s 61L Indecent assault: o Actus reus: common assault + act of indecency before during or after. o Mens rea: o Max penalty: 5 years imprisonment. s 61M Aggravated indecent assault:

Actus reus: indecent assault + circumstances of aggravation. These include (in this section):  The offender is in company.  The victim is (generally or at the time of the offence) under the authority of the alleged offender.  The victim is seriously physically or mentally disabled. o Mens rea: same as indecent assault. o Max penalty: 16 years imprisonment. s 61N Act of indecency: o Actus reus: committing an act of indecency or inciting another do so.  Subsection 1 creates the offence for a victim/person being incited under 16, subsection 2 for people over 16. o Mens rea: o Max penalty: 2 years if under 16, 18 months if over. s 61O Aggravated Act of indecency: o Actus reus:  (1) act of indecency when victim/person being incited is under 16 + circumstances of aggravation (same as indecent assault).  (1A) act of indecency when victim/person being incited is over 16 + circumstances of aggravation (same as indecent assault).  (2) Act of indecency when victim/person being incited is under 10.  (2A) act of indecency when victim/person being incited is under 16 + being filmed. o Mens rea: o Max penalty: 7 years if under 10, 5 years if under 16 (10 if being filmed), 3 years if over 16. o

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Larceny Larceny is the act of theft of property. It is still governed by the principles of the common law, whilst the Crimes Act only covers the maximum penalty. The principles governing the offence are as follows (Ilich) 

Actus reus: 1. The property was capable of being stolen - the Property must be tangible and moveable (not land), and have some value even if minimal. 2. The property belonged to another - Either through actual ownership or possession. o Possession consists of physical control + intention to control. o Constructive possession applies (in the property of employee: Williams v Phillips, on one's enclosed land: Hibbert v McKiernan).  Unlawful possession is still possession: Anic, Stylianou and Suleyman. 3. The property was taken and carried away by the accused (asportation). o Very easy to prove - any movement of goods with intent to steal them: Wallis v Lane, Potisk. 4. Without the consent of the possessor. o Does not mean contrary to or against the will, but simply without it: Middleton; Kennison v Daire.

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Dealing with property in breach of a license constitutes without the consent: Kolosque v Miyazki.

Mens rea: 1. An intention to permanently deprive. o Alternatively, an intention to appropriate the goods or exercising ownership of the goods and dealing with them as their owner: Foster. o If intention to return is conditional, there will be intention to permanently deprive: Hooker; Sharp v McCormick. o If the value of the property is exhausted, there will be intention to permanently deprive: Lloyd. o If the nature of the property is changed, there will be intention to permanently deprive: Weatherstone. 2. Defendant was acting fraudulently/dishonestly. The following tests have been used: a. Feely test (English): dishonesty has (1) an everyday meaning and (2) a moral basis. Affirmed in Peters (Australia, but not NSW). b. Weatherstone (NSW): dishonesty involves means morally wrongful/involving a moral obloquy. Affirmed in Baartman (NSW - probably the dominant test). 'Defences': Claim of right - there is no dishonesty if the accused honestly believed that s/he has a legal claim of right to the property. o Accused has evidentiary burden, prosecution has to disprove the belief in the claim of right beyond reasonable doubt). o Claim of right must be a genuinely held belief as to the legal (not just moral) right to all the property or money taken: Fuge o Claim of right does not need to be reasonable, but cannot be a mere pretense: Fuge. Max sentence: 5 years imprisonment: s 117.

Robbery/Stealing The principles governing robbery/stealing from the person are as follows: 

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Actus reus: all of the following: 1. Normal larceny actus reus, and 2. Stealing must be from the person Constructive possession is sufficient ('in the presence'): Smith v Desmond; Delk. 1. The accused used or threatened force in order to obtain goods (robbery) or to prevent victim from regaining the goods (stealing from the person): Gnosil. Force must be directed against the person, not property: Smith v Desmond. Mens rea: same as larceny. Max penalty: 14 years imprisonment: s 94.

Fraud Fraud occurs when a person uses deception in order to obtain property, cause a financial advantage or cause a financial disadvantage. The offence of fraud has been reenacted in statute, and has one of the most complex formulation out of any offence in the course. To establish Fraud (: s 192E), the following three requirements must be satisfied (each of the requirements has their own actus reus and mens rea): 1. The person used deception

Actus reus: deception can be by word or conduct (false statements, silence, wearing a disguise): s 192B (1). o Includes certain omissions: M o Doesn't extend to puffery: Bryan.  Mens rea: intention or recklessness to deceive: s 192B (2). 2. That the deception caused the person to either: (a) obtain property belonging to another, o Actus reus: the accused or a third party gain control or possession of the property of another: s 192C (1).  Property is defined in s 4 to include both tangible and intangible property (including land).  'Belongs to another' is defined as when the person has possession, control, or a proprietary right to the property. o Mens rea: an intention to permanently deprive: 192C (2). o Includes an intention to “treat the thing as his or her own to dispose of regardless of the other’s rights": 192C (4). (b) cause a financial advantage or disadvantage, o Actus reus: obtain a financial advantage or oneself or another person, cause a financial disadvantage, or induce a third-party to do those things.  Financail advantage/disadvantage is left undefined so as to have the boradest scope: Vasic. o Mens rea: intent or recklessness to the causing: as per He Kaw Teh. 3. and that obtaining/causing was dishonest.  Actus reus: automatically satisfied, since deception is obviously dishonest and was already proved by this point.  Mens rea: that the accused had knowledge that the obtaining/causing would be considered dishonest according to everyday standards (subjective inquiry): s 4B. o Can be negated by a claim of right.  The maximum sentence for fraud is 10 years imprisonment. 

Introduction to Homicide Homicide is the act of one person killing another. If the death was the result of an accidental killing or pure misfortune, it will not be a punishable homicide. Otherwise, it is easier murder to manslaughter. The principles for murder are follows (:s 18 (1)):  

Actus reus - act (or omission) has to cause death. Mens rea - can be any of the following: o Intent to kill. o Intent to inflict grievous bodily harm ('permanent or serious disfiguring of the person': s 4 Crimes Act 1900 (NSW)). o Reckless indifference to human life. This means:  Defendant foresaw the probability (as opposed to possibility: Crabbe of his actions resulting in death (as opposed to grievous bodily harm: Royall o Constructive murder - no mens rea requirement if a homicide was committed (by the accused OR an accomplice) during the commission of a crime that attracts life/25 years imprisonment.

If the above elements are proved beyond reasonable doubt, and there are no defences, the defendant will be convicted of murder.  

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Maximum sentence - life imprisonment: s 19A Crimes Act 1902 (NSW). o The judge can vary this as he wishes: s 61 Crimes (Sentencing Procedure) Act 1999. Imprisonment for life is to be imposed by a court if it is satisfied that the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. There is a standard non-parole period of 20 years, raised to 25 years in some instances.

Constructive Murder Constructive murder refers to death caused during an attempt to commit another crime. Constructive murder is incorporated within the normal murder provisions in s 18 (1) of the Crimes Act 1900 (NSW) (it is not explicitly labelled as constructive murder). The part concerning constructive murder is summarised below: The mens rea requirement for murder will be automatically satisfied if the accused (or an accomplice) caused death during:

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1. an attempt to commit; or 2. during the commission; or 3. immediately after the commission, of a crime punishable by imprisonment for life or for 25 years

This means that, in the relevant circumstance, the prosecution does not need to prove intent or mens rea for murder - merely a proof of voluntariness is required.   

Does not matter if the consequence was accidental: Ryan. No need for full-blown causation between the act and the death, only substantial contribution: Munro. No need for a risk of death to have been foreseeable to the accused: Munro...