Elements Of Crimes Flashcards
actus reus
Physical elements:
- Some action or omission is prohibited
- There is some prohibited effect, ‘causing death’ (consequence)
- The circumstances of an action are a required physical element of the crime, for example consensual sex when one of the parties is under the age of 16 years.
- Legal personhood
- Voluntariness
mens rea
’guilty mind’
Fault element, refers to the state of mind of the accused that must co-exist with the physical elements of the crime.
Fault element may be established by proving one or other of the following:
- Intention
- Recklessness
- Knowledge
- Negligence
doli incapax
There is a rebuttable presumption that a child between the ages of 10-14 years does not sufficiently understand the difference between right and wrong.
The presumption of doli incapax may be rebutted by evidence from the prosecution to show that the child realised that his or her actions were ‘seriously wrong’.
strict and absolute liability
There are some crimes where there is no need to prove any particular fault element. Such crimes fall into two categories:
- crimes of strict liability; and
- crimes of absolute liability.
strict liability
A crime of strict liability is established if the prosecution can prove that the accused performed the physical elements.
There is no need to prove intention.
The accused is entitled to be acquitted if he or she is able to raise some evidence to show that he or she had an honest and reasonable belief in certain facts and, if those facts were true, the accused would not be guilty of an offence.
This is the defence of ‘mistake of fact’.
mistake of fact
mistake of fact is a defence in crimes of strict liability:
The accused is entitled to be acquitted if he or she is able to raise some evidence to show that he or she had an honest and reasonable belief in certain facts and, if those facts were true, the accused would not be guilty of the offence.
The ‘mistake’ must be a mistake of fact - not law:
ignorance of the law is never a defence.
In addition, that belief must be honestly held by the accused in a subjective sense, but such belief must be reasonable to hold when measured objectively
mistake of law
A ‘mistake of law’ arises when the accused intends to do the prohibited act but does not realise it is illegal.
A mistake of law is usually no defence.
absolute liability
No mental element necessary
Proof of physical elements sufficient
An absolute liability offence is established where the legislation creating the offence, either by express words or by implication, provides that the defence of ‘mistake of fact’ is not available.
He Kaw Te v R (1985) 157 CLR 523
Intention
Fault element, ‘mens rea’
Where the accused foresaw the consequences of his or her actions or culpable omissions and actively desired that the consequences should occur.
SUBJECTIVE
*intention is not synonymous with motive: de Gruchy v R (2002) 211 CLR 85
Intention can arise spontaneously
Recklessness
Fault element, ‘mens rea’.
Where the accused foresaw the consequences of his or her actions or culpable omissions, but proceeded in the face of that foresight.
SUBJECTIVE - was the accused actually aware of the risk? Not. Question of whether the accused should have been aware of the risk.
Transferred Malice
Transferred INTENT. According to the "doctrine of transferred malice", where the defendant attacks someone (or something) with mens rea for a particular offence, misses, but nevertheless "accidently" brings about the actus reus for the same offence in relation to a different person (or different thing), the mens rea can, essentially, be added together, and the defendant can be convicted of the offence. In Latimer (1886) 17 OBD 359, the defendant was convicted of unlawfully and maliciously wounding Y where he had aimed a glancing blow with his belt at X, but it had bounced off and accidently hit Y who was standing close by.
Physical elements - Legal personhood
A person with a serious mental illness (insanity)
Children:
Under the age of 10 cannot be guilty of a crime
s 5 Children (Criminal Proceedings Act 1987 NSW)
Ages 10-13 presumption of doli incapax
Omission
No general duty to assist others in danger, may have a moral duty, but this will not give rise to criminal liability on its own;
In some circumstances A LEGAL DUTY TO ACT does arise.
R v Taktak (1988) 14 NSWLR 226
Four situations might give rise to a legal duty to act:
- Where a statute imposes a duty to care for another;
- Where a person stands in a certain relationship status to another;
- Where a person has assumed a contractual duty to care for another; and
- Where a person has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from assisting. per Yeldham J
‘But for’ causation vs legal causation
In practice courts distinguish between but for causation and legal causation.
Usually the courts are not concerned with discovering all the causes of a consequence, but whether the accused’s act or omission was A cause.
Then the issue becomes whether that act or omission was a legal cause.
novas actus interveniens
Victims own action?
Negligent medical treatment? (Not usually)
External events/natural forces?
Intention
Where the accused foresaw the consequences of their actions and actively desired the consequences of those actions;
Subjective;
Intention is not synonymous with motive, De Gruchy v R (2002) 211 CLR 85
Intention can arise spontaneously.
Doctrine of transferred malice
Example: the accused points a gun at their intended victim, fully intends to injure or kill them, shoots, and misses, accidentally wounding or killing someone behind the intended victim:
The accused cannot say that he or she had no intention of wounding or killing that other person, because in this scenario the intent transfers from the intended victim to the actual victim.
Recklessness
Where the accused foresaw the possibility or probability of the consequences of their actions but went ahead anyway;
Subjective - was the accused actually aware of the risk? Not a question of whether the accused SHOULD have been aware of the risk.
Knowledge
Whether the accused was aware of the existence of a particular physical element;
SUBJECTIVE - did the accused actually know? (Not whether the accused ought to have known).
Negligence
Where the accused was not aware of or did not foresee the consequences of their actions;
OBJECTIVE - a reasonable person in the position of the accused would have been aware of or foreseen the consequences of their actions.
General principle of elements of crime
Physical and mental elements must coincide.
Meyers v R (1997) 147 ALR 440
Also, R v Thabo Meli [1954] 1 A11 ER 373
Motive
The motive of an accused may be relevant for the purposes of sentencing of a convicted person
Motive is not an element of a criminal offence and therefore not relevant to the proof of the offence
Strict liability v absolute liability
Mistake of fact is available as a defence for strict liability, but not of absolute liability
What are the elements of crime?
Physical elements (actus reus):
- prohibited conduct: act or omission; circumstances, consequence
- legal personhood
- voluntariness
- causation
Fault/mental elements (mens rea):
- intention; transferred malice
- recklessness
- knowledge
- negligence
Legal personhood
Not every person can be held criminally liable. For example:
A person with a serious mental illness (insanity);
Children: under the age of 10 cannot be guilty of a crime (s 5 Children (Criminal Proceedings Act 1987 (NSW));
Between 10-14 presumption of doli incapax
Causation tests
McHugh J identified 4 tests:
Operating and substantial cause;
Natural consequences;
Reasonable foresight of the consequences; and
Novus actus interveniens (uncommon).
R v Moffatt (2000)
You take your victim as you find them. The fact that the victim has a pre-existing medical condition meaning they are more susceptible to an injury or death than someone in normal health does not reduce or remove criminal liability.
‘Egg shell skull’ principle.
