The Elements of Crime

Question 1

what is actus reus

Answer 1

guilty act, the physical conduct of the criminal act
- The prosecution must prove that the accused did in fact carry out the relevant act required for the crime
- the actus reus must be a voluntary act but can also include an omission or failure to act, particularly in cases of criminal negligence, if the accused failed to take a course of action when they had a duty to

Question 2

what is mens rea

Answer 2

guilty mind, the mental state of the accused (person’s intent)
- the prosecution must prove that the defendant was (at least somewhat) aware of their actions and their consequences

Question 3

what are the three tiers of mens rea

Answer 3

• intention: a clear, malicious or wilful intent to commit the crime. This is the highest and most difficult level of mens rea for the prosecution to prove
• recklessness: when the accused was aware that the action could lead to crime being committed, but chose to take the course of action anyway
• negligence: when the accused fails to see the danger present in their actions leading to the death or injury of others

Question 4

LCMID case study of criminal negligence

Answer 4

R v Thomas Sam. R v Manju Sam, 2009 (NSW Supreme Court)

criminal negligence: the victim (a nine month old girl) passed away, after her parents failed to provide conventional medical treatment for her serious eczema
court found: the risks related to the girl’s condition would have been obvious to any reasonable person, and that as educated adults, her parents should have recognised these risks and sought conventional medical treatment
ruling: parents found guilty of manslaughter and imprisoned

Question 5

what is a strict liability offence

Answer 5

an offence where the mens rea does not need to be proved; only the actus reus needs to be proved (only needs to prove that the accused carried out the act, not required to show that the crime was intended)

Question 6

what are examples of strict liability offences

Answer 6

restricted to minor offences such as traffic offences/ breaches of regulations (e.g. speeding offence or selling alcohol/ cigarettes to people under 18)

• only restricted to minor offences because strict liability offences dramatically lower the level of proof required to achieve a criminal conviction, and so lessen an accused’s rights in the criminal process

Question 7

what are the advantages to strict liability offences

Answer 7

• administrative advantages, reducing strain on court hierarchy and assisting the legal system in coping with the daily volume of traffic violations
• putting a greater emphasis on society to comply with a particular law

Question 8

defence to strict liability offence

Answer 8

if the accused can prove that the act was an ‘honest and reasonable mistake’