Key Principles Flashcards
Actus Reus
All of elements of the offence that are not connected with the state of mind.
Mens Rea
The state of mind required by D. Assessed either subjectively (concerned with D’s state of mind) or objectively (assessed by reference to the reasonable person).
Actus Reus must be voluntary
D must have consciously committed the offence. However D cannot escape liability simply because they cannot control an impulse to act or if they did not intend to bring about that result.
Omissions
General position is that individuals are not liable for offences based upon their failure to act. However consider:
- can the offence be committed by omission
- is there a recognised duty to act
- has the duty to act been discharged
Recognised duty categories
Statutory or contractual duty
Special relationship - parents (or guardians) and their young children
Voluntary assumption of responsibility- where someone has taken steps to take responsibility to care for someone who is unable to care for themself, for example due to ill-health or illness.
Creation of / contribution to a dangerous situation - even if they know or ought to have known the situation is likely to become life threatening.
Discharge of a duty
To discharge a duty, you have taken reasonable steps
Causation
Factual causation - but for D’s actions would the prohibited result have occurred?
Legal causation - is D legally culpable:
- D need only be a more than minimal cause of the prohibited result
- D need not be the only cause of the result just the substantial
- D must be the operating cause at the time of death - no break in the chain.
Intervening acts
- Acts of the victim - victim will break the chain if he acts in a way that is informed and voluntary. Where victim causes or contributes to his own injuries or demise this may be attributable to D if the acts were proportionate to the threat posed. Where victim neglects injuries, D will remain responsible for the extent of them.
- A free and deliberate and informed intervention of a third party
- Medical treatment - it is highly Indian for medical treatment to break the chain. Mere negligence will not break the chain. The treatment must be so potent that D’s contribution is insignificant and so overwhelming that it makes the original injury “part of history” I.e palpably wrong
- unforeseeable natural causes - acts of god will only break the chain if they were unforeseeable to the reasonable person and unforeseen by D
Take your victim as you find them
Inherent weakness in the victim will not break the chain
Direct intention
Where it is D’s aim or purpose to bring about a prohibited result - subjective test.
Oblique intention
D’s aim or purpose is not to bring a prohibited result, but he foresees that result as virtually certain to occur as a result of his actions - subjective test. Foresight is only evidence of intention, the jury are not bound to find that D intended a result that was virtually certain.
Recklessness
Seeing a risk and going on to take it. It must be an unjustifiable risk and the focus is on whether D saw that risk. As a subjective test, D’s characteristics must be taken into account in deciding if they saw that risk. Whether the risk is unjustifiable is an objective test, taking into account the social utility of the activity.
Negligence
Concerned with the conduct of the accused and whether it fails to meet the standards or the reasonable person. Negligence is only relevant to the offence of gross negligence na slaughter in this module.
Transferred Malice
A legal doctrine that allows the transfer of the mens rea when an offence targeted at a particular individual or piece of property results in injury/damage to a different person or property. Limitations:
- mens rea can only be transferred if it is the same offence
- there can be no double or general transfer of mens rea (I.e killing a person who is carrying a foetus which also dies)
