Mens rea Flashcards
Fault element defined where?
Draft Criminal Code Bill, cl 6
Hyam v DPP
Held: direct intention also means “the means as well as the end”.
where D set fire to her rival’s home to frighten her away
Malice aforethought
there were three kinds of malice aforethought;
express malice, implied malice, and constructive malice.
1) Express malice was simple; that existed when the defendant actually intended to kill his victim.
2) Implied malice existed when he intended to cause “grievous bodily harm” to his victim and, by so doing, killed him.
3) Constructive malice existed in two circumstances: first, when the defendant killed his victim in the course of, or in furtherance of, committing a felony (as a serious crime was then called); and second, when the defendant killed his victim in the course of, or for the purpose of, resisting an officer of justice, or resisting or avoiding or preventing a lawful arrest, or effecting or assisting an escape or rescue from legal custody.
Constructive malice is now abolished.
Moloney
Mens rea of murder is intention to cause death or GBH.
Nedrick
D poured parafinn through letterbox of X’s house and set it alight. A child died.
The CA found the ‘highly’ probable dictation was wrong’.
“There must be some virtual certainty as a reasult of the defendant’s actions and that the defendant appreciated that such was the case”
CA It was held that if foresight of virtual certainty is established, then the jury is free to find intention on part of the defendant. However, just because there is VC does not require the jury to find intent.
Current Mens Rea
Woollin
A consequence is intended if it was the defendant’s purpose to cause it.
1) A consequence is intended if it was the defendant’s purpose to cause it.
2) Juries may find the defendant intended the result if:
a. ) the result is a virtual certainty of the defendant’s act, and
b. ) the defendant knows it
Loss of self control requirements
1) Loss of self control (the defendant cannot have been acting for revenge.
2) A qualifying trigger under section 55 is needed.
Woollin HOL
D killed his child by throwing it against a hard surface. D did not desire to kill the child.
HOL said the direction to jury in first instance in relation to a ‘substantial risk’ was not appropriate for oblique intention.
Endorsed the Nedrick virtual certainty set out by CA, adding it if for the jury to find whether D intended this
Requirements: Oblique intention requires the result
a) to be a virtual certainty (objective requirement)
b) to be foreseen by D as a virtually certain (Subjective)
c) for the jury to find intent
Followed Nedrick’s virtual certainty.
Virtual certainty
Only those cases where D sees the circumstance or result as nearly inevitable.
Nedrick COA
Lord Lane said that intention is a ‘virtual certainty’ as a result of the defendant’s actions.
Is foresigh less that virtual certainty sufficient?
Woollin is the current law, so it will not be sufficient. Such foresight may amount to a belief and/or recklessness, but not to an intention.
Woollin Laccon
Where part A of the test (virtual certainty of the act) is not satisfied where part B is.
Part b of the Woollin test
D must have foreseen the offence as a virtual certainty. this is a subjective question. Thus, if the jury believe that D honestly did not foresee the offence as a virtual certainty, even if it was virtually certain in fact (part a) and even if it would have been obvious to a reasonable person, this part of the Woollin test will not be satisfied and the Jury are not entitled to find oblique intention.
In DPP v Smith, HOL opened the possibility for an objective definition of intention. However, post Crimimnal Justice Act 1967 s8 and Woollin, it is clear that the objective route has been closed.
Are the Jury obliged to find intention if part a and b of the Woollin test are satisfied?
In Nedrick - the court described the jury as ‘inferring; intention.
In Woollin - the court described the jury as ‘finding’ intention
Inferring implies less discretion than finding.n
Positives for the Jury’s discretion in ‘finding’ intention
It provides them with useful ‘moral elbow room’ within difficult cases as said by Horder.
In the case of Gillick v West Norfolk, the doctor satisfied the 2 stages in the Woollin test. However, although this did not happen, the Jury COULD HAVE found that the doctor did not have intention because they are not required to find intention from the first two parts of the Woollin test.
In Re A, the case involved a medical separation of conjoined twins where it was virtually certain that the operation would kill one of the twins and the Doctor knew this. Again, when asking if D intended to kill, it is possible that the third part of the Woollin test could be used to avoid this conclusion.
Negatives for the Jury’s discretion in ‘finding’ intention
1) It is unpredictable: without a criteria to guide the jury, different Jury’s will come to different conclusions. This is objectional from a rule of law perspective. It is also unreliable as a method of distinguishing cases.
2) The jury decides the law, by not providing a legal definition to guide the jury means that they are not only being asked to apply a legal rule, they are being asked to define it.
R vG
HOL
To satisfy mens rea of recklessness:
1) D must have foreseen a risk of the relevant element of the actus reus (subjective) AND;
2) Unreasonably continued to run that risk. (objective)
Actus reus of Criminal damage
1) Property
2) Belonging to another
3) To be damaged by D’s conduct.
Stephenson
D, who suffered from schizophrenia, sheltered in a haystack and made a fire for warmth. Inevitably, the fire spread and caused damage. D was charged with criminal damage, the mens rea required that D be reckless to causing damage. Medical evidence was given to indicate that D might not have been aware of the risk of damage.
COA held: The trial judge was wrong to point out obvious risks, the test is subjective so it was a misdirection to question the obviousness of the risk: the only question is whether D forsaw the risk.
Brady
COA
D was drunk in a nightclub, he climbed onto he railing and then fell causing serious injury to V.
COA held that ‘foresight of ANY risk is sufficient”. They rejected that D had to foresee ‘an obvious and significant risk’.
Parker
D lost his temper and caused damage to a public telephone. D claimed that in the heat of the moment, he was not aware of the risks.
COA: Although D’s awareness of the risk of damage was suppressed by his anger, the risk must have entered his mind.
Risk was foreseen even if it was ‘suppressed’, or ‘driven out’ or where D ‘closed his mind’ to it.