ELEMENTS OF OFFENCE - AR Flashcards
WHAT IS the actus reus
- Physical element such as the commission of a prohibited act, an omission or causation of a prohibited act or state of affairs.
- Derived from the Latin term “actus reus,” meaning “guilty act.”
what is the objective test for AR
- Objective test = external/outsiders point of view (what a reasonable person would think).
Three types of AR
- Act
- Omissions
- States of Affairs/Situations
what is the mens rea
guilty mind, Mental element such as intention, knowledge, or recklessness, in relation to the physical element
what must be the overlap of AR and MR for criminal liability and what is the purpose of this
The two must occur simultaneously to account for criminal liability. The purpose being to prevent conviction of accidental behavior.
what is the subjective test for mr
Subjective test = this means that MR is determined by the internal mental state of the defendant.
Fagan v Commissioner of Metropolitan Police
(UK) facts
Defendant accidently drove over police officers foot and once realized did not move off it.
Fagan v Commissioner of Metropolitan Police
(UK) issue
Whether or not AR and MR occurred contemporaneously in order for it to be classified assault and Fagan convicted.
Fagan v Commissioner of Metropolitan Police
(UK) held
Yes AR and MR occurred contemporaneously, Established the continuing act theory.
MR can superimpose onto the AR (the two do not have to start at the same time).
What is an omission
An omission is the act of exclusion, here must be an identified legal duty to act that makes an omission punishable.
what does express and implied liability relate to
omissions
what is implied liability
Implied liability refers to situations where the wording of a law can reasonably be interpreted to include not only actions but also failures to act (omissions). However, it’s often unclear if Parliament intended for the law to cover omissions as well as actions.
what is express liability
Expressed liability occurs when a law clearly states that failing to act (an omission) is considered an offense. For example, a statute may outline a specific duty you must fulfill, and if you don’t, you can be held liable.
R v Miller facts
Defendant falls asleep with lit cigarette and it alights his mattress. When waking up to the fire he simply moves to another room.
R v Miller
(UK)issue
Can the words destroy or damage include an omission (failing to do something)?
R v Miller
(UK) held
Yes, the meaning of damages can be stretched to cover not just actions but failures to act as well.
If you create a dangerous situation ought be it accidental, when you subsequently become aware of the situation, you have a duty to counteract it.
Nicholson v Department of Social Welfare facts
The appellant was on a welfare benefit but obtains employment so informs officer to discontinue it. However, she remains being paid the benefit for six months and spent the money.
Nicholson v Department of Social Welfare issue
This case concerns the powerplay between sections 127 and 80A of the Social Security Act which contradict the legal duty.
Nicholson v Department of Social Welfare held
Defendant not liable.
The two sections work in tandem as s127 sets up the general offence but the omission (and no duty) resides in 80A. You must read s127 in the spirt of 80A.
what is the quote in Nicholson v Department of Social Welfare
“An offence is complete when the omission continues past the point at which a dishonesty of purpose is present (proved beyond reasonable doubt).”
what are Statuses and States of Affairs and e.g.
States of affairs are offenses that make it a crime for a defendant to be in a specific situation at a certain time, regardless of how they ended up there. This means they are an exception to the general principle that criminal liability requires a voluntary action (actus reus). E.g. being drunk on a public highway
what is prosecution not required to prove for Statuses and States of Affairs
Prosecution is not required to prove any action/omission for these offences, AR
What are 2 examples of Statuses and States of Affairs in the summary offences act
Section 29 - being found on property without reasonable excuse
Section 30 - peeping or peering into dwellinghouse
R v Larsoneur
(UK) facts
Defendant deported from the UK to Ireland, but on arrival they forced her back to the UK where she was convicted for violating her passport.
r v larsoneur issue
Can you be convicted for a status offence when it was unvoluntary
r v larosnneur held
Yes defendant convicted. (Decision widely criticized - if decided after Kilbride decision possibly different).
Courts have an absolute mindset in finding of status liability.
R v Winzar facts
- Defendant taken to ED on a stretcher and found to be drunk. Police were then called to get him out of hospital and they took him to the station, upon where he was convicted of being found drunk in a public highway.
R v Winzar held
This case demonstrates the court’s strict approach to establishing liability, as seen in R v Larsonneur. The court held that it did not need to consider the events leading up to the situation.
causation
Prosecution must prove that D’s actus reus caused the prohibited result.
Kilbride v Lake facts
Defendant is convicted for failing to carry current warrant of fitness but claims that it was present in car when it was parked and must have been taken.
Kilbride v Lake
Can you be convicted when you did not cause or you are not responsible for the AR? (question of causation)
Kilbride v Lake held
defendant not liable, The Act or omission making up the AR must be voluntary - the defendant had no control over the circumstances so chain of causation broken.
what are justifiable act or omission
A justifiable or excusable act or omission occurs when you act or fail to act because there was no other option available to you—essentially, it was impossible for you to comply with the law.
Section 20 of the Crimes Act
preserves common law justifications and excuses (types of defenses) as long as they haven’t been over ruled or are inconsistent/contrary with new legislation.
explain Justification
When an act that would normally be consider a crime is “justified” it becomes a non-criminal act and no crime is committed
explain excuse
- When an act is committed that is criminal, but the individual who performed the act is “excused” from criminal liability or punishment due to special or extenuating circumstances
What common law defenses of the excuse type, preserved by section 20, are still recognized?
Necessity, Impossibility
what is Necessity defence
It refers to a situation where a person has to choose between two bad options, making it hard to blame them for picking the less harmful one.
what is the impossibility defence
Inability to comply means admitting to doing something the law prohibits because it was impossible not to do it. The law should not expect someone to do the impossible.
Tifaga v Department of Labor facts
Immigrant had permit revoked and did not leave NZ within the 21 day time frame because did not have the sufficient funds to leave.
tifaga v dept of labour issue
Was the act of staying in NZ involuntary?
tifaga v dept of labour held
The appeal was dismissed, and Tifaga was convicted. The defense of impossibility was introduced but held that it cannot be claimed if, with due diligence, the outcome could have been avoided. Tifaga should have had funds reserved in case his permit was revoked
