Criminal Law in Papua New Guinea

Mens Rea

• Mens Rea translates to "guilty mind" and is an essential element for assessing criminal liability
• Mens Rea was developed as an understanding that an action alone is not enough to establish a criminal act
• It must also be proven that the defendant had a guilty state of mind

Learning Objectives

• Comprehend the definition of Mens Rea
• Learn under which circumstances a defendant will found to have had intention
• Learn when a defendant is shown to be acting recklessly
• Understand the significance of mens rea to an offence
• Understand the difference between direct/oblique intent and interior, basic and specific intent
• Be able to identify what standard of care a defendant must fail to reach to be deemed as negilgent
• Comprehend the distinction between objective and subjective recklessness
• Appreciate the reasoning behind strict liability offences and how they are different to negligence

The Mental Element of a Crime

• In addition to meeting all of the actus reus elements of an offence, a defendant must be shown to have a guilty mind at the same time that they commit the actus reus
• This guilty mind, or mental element, is known as mens rea
• For the vast majority of offences, mens rea will be satisfied if the defendant can be shown to have intended their actions
• If the defendant can be considered to have been reckless as to whether a consequence would occur, mens rea will be satified
• In certain circumstances a defendant will satisfy mens rea if they are considered to have acted negligently
• For certain offences, known as offences of strict liability, no mens rea at all is required
• There are four broad areas of mens rea
• Intention
• Recklessness
• Negligence
• Strict Liability

Intention

• Intention is often given its ordinary meaning
• A defendant will be found to have intended a consequence if they desire the consequence to follow their actions.
• This applies whether the consequence is very likely or extremely unlikely to occur

Indirect/Oblique Intent

• This says defendant can be considered to intend a consequence of their actions even if the consequence is one that the defendant does not want but which he knows is virtually certain to occur as a result of their actions

Ulterior Intent, Basic Intent, and Specific Intent

• A consideration of indirect or oblique intent is only really necessary where the offence is one that requires intention as the mens rea element
• These types of offences are known as offences of specific intent, where only intention will suffice
• Where the mens rea is satisfied by intention or recklessness, the offences are defined as offences of basic intent
• Offences of ulterior intent are those that require proof of a second mens rea element

Summary on Intention

• Intention usually occurs where a defendant desires the consequences of their actions
• Indirect Intent may be found where the defendant does not desire the consequences of their actions, but knows these consequences are virtually certain
• Specific intent refers to offences where intention is necessary to satisfy mens rea
• Basic intent refers to offences where either intention or recklessness will satisfy mens rea
• Ulterior intent refers to offences where it is necessary to show that the defendant intended to do something in addition to the basic mens rea of the offence

Recklessness

• It is often difficult to show that a defendant intended the consequences of their actions because of intention's narrow definition
• This difficulty is addressed by recklessness
• Recklessness differs in concept significantly from that of intention, in that the word is never given its ordinary meaning
• The ordinary meaning of this word could be considered as 'carelessness' or 'dangerous'
• It refers to a defendant's unjustified risk taking, the degree of this risk taking, and the defendant's awareness of the risk that has caused the issues surrounding the definition

Subjective Recklessness

• Initially set out in R v Cunningham [1957] 2 QB 396, is often described as Cunningham recklessness
• A defendant must be aware that a risk exists or will exist.
• That a result will occur or is a risk and that with the the circumstances known to the defendant, they unreasonably go on to take the risk.
• Defendant must forsaw a risk or result, the position is therefore subjective, not only on the foresight of the risk, but the reasonableness of the defendant's actions.
• Defendant ordinarily attempts to ascertain the risk they were taking
• Members of the jury believe that they would have been aware of the risk in the circumstances.
• In other words, whether the defendant ought to have been aware of the risk as a reasonable person might - making the test close to an object one
• A defendant can not avoid liability by deliberately closing their mind to a risk per R v Parker [1977] 1 WLR 600

Reasonableness of the Risk

• The test in this context is objective in that the jury determines reasonableness

Objective Recklessness

• This was purely objective for a number of years
• It was held that a defendant would be reckless if they foresaw a risk and went on to take it per Metropolitan Police Commissioner v Caldwell [1982] AC 341
• Otherwise, where a risk existed and the defendant gave no thought to the risk existng
• Caldwell was overruled in RvG and recklessness was returned to the previously described subjective test
• In R v G that an objective approach could not be completely disregarded

Summary on Recklessness

• A defendant will be reckless if they are aware that a risk exists and go on unreasonably to take that risk
• The defendant's awareness of the risk is considered subjectively
• The reasonableness of taking the risk is assessed objectively
• Objective recklessness, whilst not being fully relevant, may be a consideration

Transferred Malice

• In certain circumstances, a defendant has the required mens rea against one victim, and satisfies the actus reus of an offence against a person against whom the mens rea is not satisfied
• Per R v Gnango [2012] 2 WLR 17, the term transferred mens rea is more appropriate and accurate
• Case In Focus: R v Latimer (1886) 17 QBD 35.
• Transferred malice is limited to offences of the same type

Negligence

• The definition of negligence in a criminal context is the same as that in tort
• A defendant must fail to reach the standard of care that a reasonable person would take, must cause harm to the victim
• Save for manslaughter by gross negligence, very few offences are defined as requiring the defendant to be negligent
• They are however stated in terms of the defendant failing to meet the standard that a reasonable person would meet
• It is also not a defense if a defendant unreasonably makes a mistake of fact per R V King [1964] 1 QB 285
• Absence of the word negligence does not mean that it is not an important concept in criminal liability
• Defendant state of mind isn't entirely relevant, the standard of consideration that a defendant must give to circumstances is per the case of State v Namaliu [2019] PGNC 261; N8080 (26 September 2019) [14%]

Strict Liability

• Strict liability offences are those types of offences where a defendant's blameworthiness is not a relevant consideration in relation to their liability
• Under these types of offences, it will not be necessary to show that a defendant possessed the relevant mens rea for at least one part of the actus reus of the offence.
• Where statute makes it clear that mens rea is required, no issue arises and the wording of the statute should be followed
• Where the statute is silent as to the requirement of mens rea, a presumption arises that Parliament did not intend make a person who lacked a guilty state of mind liable for the offence
• The presumption of mens rea can be rebutted if some reason can be found to show that mens rea is not necessary
• The court must go outside the words of the statute itself and look to Parliament's intention in order to ascertain whether it was its true intention to create an offence of strict liability
• Examples: Motor vehicle accident, selling alcohol to an underage person
• For strict liability it is not necessary for any standard or threshold to be crossed before liability arises
• If the defendant satisfies the actus reus of the offence, they are liable, irrespective of whether it could be considered reasonable for them to act in the manner that they acted
• Example Dangerous Driving Causing Death(DDCD)