Concurrence Of Actus Reus And Mens Rea Flashcards
Concurrence of actus reus and mens rea
Concurrence or coincidence of actus reus and mens rea.
Always analyse a crime in terms of its actus reus components and mens rea components.
Actus reus components → what defendant must have done in the world in the context of circumstances. Actions that caused certain consequences etc. or failure to act. Prohibited actions generally.
Mens rea component → Moral fault. State of mind that makes them culpable for what they did. If accidentally killed someone cant be a murderer etc. Only killing someone if risking a likelihood, or trying to kill someone etc.
If not intending to kill someone and cause someone’s death that is manslaughter.
Mens rea carries the moral fault → state of mind culpable enough to convict you of that offence.
If someone is convicted of manslaughter they did something wrong but death was accidental. But murder there is conciousness, awareness, intention etc.
Third element → The actus reus and mens rea have to occur at exactly the same point in time.
Bookshop example: go to bookshop, raining, see there is box of umbrella, take umbrella, take someone else’s umbrella, actually its mine, committed the mens rea for the crime but not the actus reus at the same time. If take someone else dont realise and realise its mine, and cant be bothered to take it back. When committed actus reus did not have moral fault, later when formed mens rea no actus reus.
Cases where people are blameworthy, but not blameworthy at the time where they perform what is easily categorised as the actus reus.
Various ways courts go around this rule when they think people should be convicted morally.
The general rule:
×The Rule: The actus reus and mens rea must occur at the same point in time before criminal liability can be attributed to the accused.
×But there are a number of exceptions and qualifications…..
Where the act precedes the intent:
×You first do the actus reus by mistake and then, when you realise what you have done, you form the mental element:
§The continuing act doctrine: Fagan v MPC [1969] 1 QB 439, [1968] 3 All ER 442
§Omissions theory: Did you have a duty to act that coincided with the mens rea? R v Miller [1983] 2 AC 161
Concerns circumstances where the act precedes the intent.
Actus reus by mistake then form the mens rea.
When form the mens rea, the actus reus had already been completed.
The Court has used the continuing act doctrine in Fagan v MPC → Defendant accidentally reversed onto policemans foot. He told him to wait, switched of ignition, then drove off. Charged with assault.
The Actus reus for assault is contact others body without consent.
Mens rea is that you intend to contact that persons body knowing you dont have consent.
Committed actus reus in Fagan not intentional, but after he became aware that he contacted policemans body, actus reus had already been done.
Court used doctrine of continuing act to undercut requirement for coincidence of two elements.
Stated in Fagan that so long as in contact with policeman’s foot, the act was continuing in time.
If he formed the mens rea at any point during that point then there is concurrence/coincidence.
This analysis does not work for an action that is momentary rather than ongoing, only a continuing act. For example the act of shooting is not ongoing.
Fagan only works with some act that is carrying on in time.
Court has also used Omissions theory.
General rule in law is cant be held liable for not doing something. As opposed to doing something.
Only way you can be held liable for doing nothing is if you have a legal obligation to do something.
For example see someones child drowning, no obligation to save them, not your kid, no obligation even though they could. Not an omission in law. If you are the parent you have an obligation however.
Omissions theory used by Courts in R v Miller
R v Miller → Vagrant squatting in unoccupied house, fell asleep with lighted cig, found out he accidentally set mattress on fire, did not bother to put it out, just went next door and went to sleep there instead.
Miller charged with arson, but when set mattress on fire no mens rea. No intention to set mattress on fire.
May have had form of mens rea as he let it continue, but at that point no actus reus.
The Court said however used duty theory.
Court said that you have a duty when you accidentally create a dangerous situation to take reasonable steps to undo the harm that you have created.
Duty based on your relationship with the harm. Have an obligation to do reasonable things. When aware of dangerous situation take reasonable steps to address harm that you have caused.
When Miller became aware that he had to do something because of the fire he didn’t do anything, so had the mens rea, him not doing anything, and intentionally not taking reasonable steps.
Could apply to Fagan aswell?
Where the intent precedes the act:
×The defendant forms the mens rea first but when they commit the actus reus they no longer have the mens rea (acting under a mistaken view of the facts):
§The complex single transaction: Thabo Meli v R (Privy Council) [1954] 1 WLR 228
§Causation theory: R v McKinnon (NZ) [1980] 2 NZLR 31
Second situation is where Mens rea precedes the actus reus
Situation where you form the mens rea to do a crime, but when you actually do the actus reus you don’t have the mens rea anymore.
The case of Thabo Mali → court evolved the complex single transaction rule.
Thabo Meli.
Thabo-Meli:
(Where the intent precedes the act)
Thabo Mali
Accused formed a plan to kill someone, and were going to fake an accident to conver their tracks.
Hit victim over the head intending to kill. Thought he was dead so he threw his body over cliff to make it seem like he had fallen off.
Victim still alive, and died from exposure lying at the bottom of the cliff.
Lawyers argued no coincidence of actus reus and mens rea.
Had mens rea for murder. However did not perform actus reus.
By the time they performed the actus reus they werent intending to kill someone, just disposing of a corpse.
If you think someone is already dead you cannot intend to kill them.
Argument was: Had mens rea for murder when they commit the actus reus for murder in fact when they did the act no mens rea.
Court would not want to accept this argument because people deserve to be convicted of murder. Why should they profit for a mistake they made at some point in their devious actions?
Went to privy council as concurrence is required.
Privy Council used to be the highest Court in England, and their decisions were binding on NZ. Privy Council used to be our CA.
Now it is not, we have a local court, ultimate court SC, privy Council has been disbanded and now the SC of the UK.
Thabo Meli: Possible readings:
×If you have a pre-conceived plan then you need only have mens rea at one particular link in the execution of the plan.
×There was only one transaction. Insufficient time had elapsed between the actions of hitting the victim and pushing him off the cliff for the two actions to be treated as having been done on separate occasions. R v Church [1966] 1 QB 59 (no preconceived plan).
Privy Council adopted an overall approach. → they said it was impossible to divide up one series of actions or one transaction.
Accused set out to do all their acts to achieve their plan, all acts part of plan. Immaterial that at some part of plan thought victim was dead.
Decision was vague and did not set clear principle. HArd to find Ratio Decidendi.
Ratio decidendi → deciding principle, reason why court decided the way they did.
Can spell out two potential ratios.
One is that if you have a preconceived plan and every action you do as part of that preconceived plan, you only need to have mens rea at a particular point in that preconceived plan.
Also potentially. If all of your actions take place in a really short period of time, not treated as separate occasions, just one occasion. Just that they occur all at the same time.
Not treating them as separate actions, treating them as a complex transaction at the same period of time. Just needs mens rea at one point of that time.
Does it only apply when clients are setting out to do crime? And make mistakes at some point .
Or does it apply to anyone who commits a crime as long as actions take place at the same time, on the same occasion?
The Case of R v Church [1966] came after Thabo Meli.
Church → Similar facts to thabo meli but no preconceived plan.
Church → Accused in van trying to have sex with girlfriend, according to him, accused said she mocked him for failing to satisfy her sexually, so he lost the plot and attacked her physically in a rage.
After this he thought that he killed her, and to cover tracks threw body into nearby river to dispose of her.
In Fact she was unconscious but still alive, she couldnt swim unconscious and drowned in the river.
Accused convicted of manslaughter and got 15 years imprisonment.
Accused appealed.
Court held that Jury was entitled to convict him if they regarded his behaviour at the moment he struck her to the moment he threw her in the river as a series of acts designed to cause death or GBH.
Was it series of acts altogether or single series of acts?
No preconceived plan just random and spontaneous on his part.
Ramsay (NZ) [1967] NZLR 1005:
(Where the intent precedes the act)
×Thabo Meli applies in cases of intentional murder where “it is impossible to divide up a course of conduct into separate acts.”
×It does not apply to reckless murder. Recklessness is a weaker state of mind. An intention can be so obvious that it is possible to say that every action on a particular occasion was “directed by that intention.” It is not possible to say that about a reckless state of mind. (Note R v Kumar said this was obiter dicta).
In New Zealand → The Case of Ramsay in 1969 tackled the above problem of continuing act.
Ramsay assaulted and gagged the victim. Had offered her a lift after new years party and victim never seen alive again. And victim found in offal pit on his farm.
Evidence of severe violence done to her. Newspaper also stuck in her mouth which obstructed her airways.
Not clear whether the injuries she suffered from blows to her head had caused her death, or whether she had suffocated because she gagged her.
No mens rea for murder if you gag someone you are just trying to shut them up not kill them.
If you gag them you don’t have the mens rea, just committing the actus reus accidentally if that is the act that kills the victim.
Prosecution job to prove both elements and concurrence.
And defence can say beyond reasonable doubt that it wasn’t the gag that killed her. So cilent is guilty of a beating but not manslaughter or murder if that is the case. Death was simply accidental.
Prosecution cannot prove that the gagging did not cause her death. And that was accidental
So you should be charging my cilent for GBH not homicide → and that was the argument that was run.
The Court of Appeal went up → The assault and gagging could not be treated as a single continuous course of conduct.
CA applied the preconceived plan rationale from Thabo-Meli. Said no preconceived plan from the accused so conduct throughout could not be treated as a series of actions governed by a dominating intention to produce the actus reus.
The accused mens rea when he assaulted the victim could not be combined with the actus reus when he gagged her in order to satisfy the requirements of murder.
Could say recklessly risking life but can’t combine that with the act of gagging her.
Court could of used Thabo-Meli to say it occurred as a part of one single transaction to arrive at a different conclusion.
Conclusion → Accepted Thabo Meli as authority where intention to kill is established, and cant split up conduct into seperate acts, crime not reduced from murder to lesser crime because accused is under some apprehension for a time concerning the result which one of the acts in the series might have. But there may be limitations inherent.
Act should not be separated from the earlier acts for all were performed to achieve the accused plan (thabo meli).
The present case → the Crown at no time suggested a preconceived plan or anything approaching it. Fundamental distinction between this and Thabo Meli.
CA says you have to have preconceived plan that animates everything you do. So if you have mens rea at some point in that plan it infects all of your actus reus. All actions in execution of that plan.
Only exception to the concurrence principle is when there is a preconceived plan.
But they said rule in Thabo Meli does not apply to reckless murder. →
Two types of murder → intentional murder (purpose or desire to cause someones death.
And reckless murder → not purpose or desire but concious that you are running risk. Not remote risk but likely to kill someone. Not just remote.
Legislature says its almost as bad .
Ramsay says → only applies to intentional murder. → not to cases where you think theres a risk that you will kill someone.
Ramsay conclusion → What they are saying is that intention is a very strong state of mind and can spell that out from a series of actions.
State of mind so strong that infects that series of actions.
However recklessness not as strong and cant infect series of actions all the time. Not so strong as to infect everything the accused does.
Kumar v R (NZ) [2016] NZCA 329; [2016] NZSC 147, the victim; Mr Prasad:
Recent case.
Kumar v R → Went to the NZCA which. Then went to SC which endorsed NZCA decision.
Recent version of the concurrence issue using the continuing act theory.
Kumar case → Mr Prasad lended money to a couple of people and wanted that money back. And the people lured him into a place, beat him up, and set what they thought was his dead body alight to dispose of it.
Kumar: Pathologist:
Mr Prasad was alive when he was set alight and his death was caused by thermal injuries. The Crown could not rule out the possibility that he was unconscious at this point because of a prior assault and that the defendants may have reasonably believed that he was dead.
Pathologist said that there was a possibility that he was alive when he was set alight.
And death potentially could ahve been caused by thermal injuries.
However the Crown could not prove beyond reasonable doubt that he was unconscious when they set him alive. And they may have believed quite reasonably that he was a corpse.
Intended harm when beating him, thought disposing corpse when burning him.
The defendants: Kumar and Permal:
Ramsay may stand in the way of liability potentially.
Kumar (CA upheld by SC): Don’t need a preconceived plan:
“Thabo Meli’s authority is beyond question: parties cannot avoid criminal liability simply because they believe mistakenly that they have achieved their objective by one act but in fact achieve it by a later and different act if both acts can be treated as logically successive or connected within the one continuous course of conduct attributable to or motivated by the same murderous intent. Depending upon the circumstances, the two acts are treated as one irrespective of ostensible temporal or physical separation.”
CA overturned Ramsay ⇒ dont need a preconceived plan, thabo mali beyond, cannot just because achieved one act, if both acts can be treated as logicallsy successivein that one contoinuum of conduct with murderous intent. Irrespective of tempaeral or physical. Complex single transaction of tahbo mali. Whether their is one continuous transaction, not saying you have to find everything at one point in time, really it is continuous continuum of actons. Did not absolve from criminal activity. Especially when one act was done to conceal the first. Not just hte numbe rof minutes, the defence say the beating was done here, and etc. nor is it counting the pjysucal distance, does not matter whether they took the body, the issue we repeat is done whether the two material acts the beating and burning where one continuous action, done with the same murderous mind, so basically overturning thabo mali saying are they connected in one transaction. The Court said it didnt require an antecedent plan. So that overturns ramsay.
CA overturned Ramsay and said dont need a preconceived plan.
CA went for the complex single transaction version of Thabo Meli.
Kumar: Question is whether there is “one continuous transaction”
“an appreciable time difference between the two acts did not absolve either participant from criminal liability, especially where the second act was designed to conceal the commission of the first. The issue is not determined by counting the number of minutes separating the two acts. Nor is it determined by counting the physical distance between what is said to be the place where the unlawful act was committed and the place of death. The issue, we repeat, is determined by an inquiry into whether the two material acts were sufficiently related to form part of the one continuous transaction such that both can be treated as motivated by the same murderous state of mind.”
Question of one continuous transaction.
Have to prove a continuous series of actions.
Court said time difference did not absolve criminal liability. Necessarily connected. Not determined by counting the number of minutes.
Court said nor is it determined by physical distance. Doesnt matter if they took body from one place to another.
The issue is an inquiry of whether the two material acts, the beating and the burning were sufficiently related to form part of the one continuous transaction so both can be treated as from the same murderous state of mind.
Overturning Thabo Meli and saying are they connected in one transaction.
Does not require an antecedent plan (occurring prior). Just are they connected in one transaction.
Sustained attacks:
×R v Kengike HC Rotorua, 30 April 2007, [17]:
×
§The authorities.. make untenable a submission that the Crown should isolate out some particular act from an ‘indivisible series of acts’, such as a sustained or ongoing assault. The focus must be on whether the relevant mens rea was present when the ‘series of acts’ (here an assault) was being carried out.”
R v Kengike → Sustained attack over a very short period of time.
Attacked ex partner and essentially beat her to death.
Submission was in that beating what was the act that caused her death? And crown has to prove that the murderous state of mind was in relation to that particular act, and you can’t.
Court said → Slightly different to Thabo Meli, Thabo Meli there is a good argument that they didnt have the mens rea. In a sustained attack cant run that argument.
Causation theory: R v McKinnon (NZ) [1980] 2 NZLR 31:
×Struck the deceased on the head with a fence paling (knocking him unconscious) and dragged him to a telephone booth to rob him.
×Victim died by drowning in his own blood – blood nose caused by a minor injury to his nose rather than being hit over the head.
×Blow with the fence paling still a “substantial and operative cause of death”. Died from a blood nose because he was unconscious from the blow to the head.
Final part is causation theory.
Difficult but helpful in this context for concurrence.
Law of Causation → rules about when an act can be said to have caused death.
Act causes death when it makes a significant and operative contribution to that death.
Courts have used causation to get around the fact that there is a lack of concurrence.
Possibility of using causation theory was raised in the CAse of Royale in HC of Australia by Justice Mason → didnt need to do causation theory in relation to Thabo Meli. Initial assault on victim caused his death, still substantial and operating cause of his death.
Reason being if he had not been beaten and not at bottom of cliff, and unconscious he would have got up and gone home. The reason why he layed there and died of exposure was because he was uncious because he was beaten.
The assault was still having a role in his death. → the initial assault was an operative and non insignificant cause of death.
Concurrence between actus reus and mens rea → The act which killed him the assault was accompanied by mens rea.
This was applied in the R v Mckinnon →
Mckinnon → defendant hit victim on head with fence paling, knocked him unconscious and dragged him to a telephone booth and robbed him in that booth and left him there.
Victim died by drowning in own blood from a nose bleed which occured when he was being dragged into the booth.
Argument by defence council was → When he was meant to harm was hitting by fence paling, but that didnt kill him, what killed him was accidental injury nose bleed. So can only charge cilent with GBH no Homicide. Did not cause death with any kinds of mens rea.
The Court said no because normally when you get a nose bleed you don’t drown in your own blood because you are conscious. So in fact hitting him over the head was having an operative effect in his death.
Task:
×Identify whether there is concurrence of the actus reus and mens rea in each of these scenarios (including giving consideration to whether any of the exceptions apply).
