MENS REA Flashcards
What is the mens rea?
guilty mind
What are the two types of intention?
Direct & Oblique
What is direct intention?
the aim or purpose of the defendant’s act (R v Moloney)
What is oblique intention?
the defendant does something manifestly dangerous and someone dies or is seriously injured but that was not the primary aim of the defendant.
When does recklessness occur?
when somebody takes an unjustifiable risk, aware of the danger that the prohibited harm may occur upon taking that risk.
What is the test for oblique intention?
1) Was the outcome (e.g., death or serious injury) ‘virtually certain’ (barring some unforeseen event) as a result of D’s acts? (Objective element); and
2) If so, did D realise that it was virtually certain to happen? (Subjective element)
Is oblique intention a definition of intention or evidence of intention?
Matter of debate:
- R v Moloney - could only be evidence of intention
- The Draft Criminal Code includes oblique intention in its definition of intention
When should oblique intention be used?
- rare cases
- when intention is the only form of mens rea for the offence
Is motive the same as intention?
Nope
- While the defendant may have a motive, that does not mean when D commits theactus reusD can automatically be taken to have the intention to kill.
- motive can be used as evidence of intention (R v Hill)
What is the test for recklessness?
R v G -
1 - Was D subjectively aware of a risk (subjective)
2 - In the circumstances known to D, it was unreasonable to take that risk (objective)
(was there any social utility?)
What is the continuing act theory?
A defendant can be guilty of an offence using the continuing act theory if they form themens reafor the offence at some point during theactus reuscontinuing.
- InFagan, the defendant formed themens reawhen he realised that his vehicle was on the police officer’s foot and did not move it. At the moment he formed themens rea, theactus reuswas still continuing.
What is the one transaction principle?
Sometimes the court will categorise the actions of the accused as a series of acts, making upone transaction. In certain circumstances, it is enough for the defendant to have themens reaat some time during that transaction.
- Thabo Meli
What is transferred malice?
- Transferred ‘malice’is when D’smens reais transferred from the intended harm to the actual harm.
- It does not make a difference to criminal liability that D, for example, intends to kill X, but misses and kills Y instead. The doctrine of transferred malice operates to allow themens reaagainst X to be transferred and joined with theactus reusthat causes the prohibited harm to Y. D’s intended harm against X can be transferred to the unintended victim, Y, and D will still be guilty of the crime of murder.
- R v Latimer
- R v Mitchell
Can you transfer malice against a person to malice against property?
No (Pembliton)
How will a mistake affect a defendant’s criminal liability?
depends on the type of mistake
- ignorance of the law (if D doesn’t know they are breaking the law, this mistake will not help avoid liability)
- mistakes that negate the mens rea (D might make a mistake as to some element of the actus reus which prevents them from having the mens rea)
○ This could be a mistake of fact, for example if the defendant takes the wrong umbrella away from a restaurant, mistakenly believing it is their umbrella, there will be no liability for theft because D will not be dishonest.
○ If themens rearequired for the relevant element of theactus reusis intention or recklessness, there is no need for the mistake to be reasonable. If themens rearequirement is negligence, then the mistake must be reasonable.
