(02)- Unit 2_Pt 2_Notes.pdf

LAW1906 – Introduction to Criminal Law Unit Two: Elements of a Crime: Part II. Mens Rea Recommended Reading: 1. Smith and Hogan’s Criminal Law, 13th Edition – David Ormerod (See C...

LAW1906 – Introduction to Criminal Law Unit Two: Elements of a Crime: Part II. Mens Rea Recommended Reading: 1. Smith and Hogan’s Criminal Law, 13th Edition – David Ormerod (See Chapter 5: Elements of a Crime: Mens Rea) Participant Expectations: Students are expected to review the notes for this unit, attempt the recommended reading material and participate in the discussion forums related to same. Overview: This unit will guide students in understanding what constitutes a crime and the complexities associated with same. This unit is divided into two parts and will focus on Part II- Mens Rea in this week’s lesson. Exploring the intent that accompanies the act that constitutes the offense will further assist the student in defining what a crime is and under what circumstances a crime has actually been committed. Learning Objectives: This lesson will: 1. Define and discuss the principles of the mens rea of a crime, its components and complexities. 2. Consider the presence of intent in offences as a defining aspect of mens rea. 3. Review other key elements of mens rea such as recklessness, negligence and transferred malice. 4. Examine the relationship between strict liability and mens rea. 1.1 Defining Mens Rea As previously discussed, an essential element of a crime is the actus reus or guilty act of same. However also of significance is the mens rea or guilty mind associated with same. Baird et al (2006) describes it as: “…a legal term of art which refers to a number of states of mind that the law treats as criminal and without which there will be no criminal liability.” This is a critical mental element which must be present for certain crimes to be established and is directly related to the intent of the offender to commit said act ie direct intent. Notably, the presence of an oblique intent is also considered as an element of mens rea wherein the outcome was not intended but by virtue of the act was considered a probability of same therefore establishing culpability nonetheless. Consider if A was driving his vehicle and broke a traffic light causing him to collide with another vehicle and killing one other person as a result of same. While A’s direct intent may not have been the loss of human life, it can be argued that the intent to cause injury or death was reasonably present by his act and that A would have been aware of the risk of his actions whether or not he intended the outcome. Therefore the presence of mens rea by virtue of oblique intent may be considered. Traditionally, as seen in earlier statutes, there was little to no distinction between crimes possessing the element of intent. This blurred the lines between criminal and civil proceedings with a focus on absolute liability that required only the act in question (inclusive of causal factors, omission etc.) for guilt to be determined. With the support of the church among other proponents, the view that a mental element was a requirement for guilt in many crimes with the exception of such crimes as crimes of negligence, there was soon a shift in the focus of the legal system. Activity 1: Discussion: Mens rea was not always a prominent component of crime commission. What does the “animistic period” of legal thinking refer to? 1.2 Intention Now when determining mens rea factors to be taken into account may include proof of intent as shown by the individual’s conduct, circumstances or the consequences of the act. Additionally for mens rea to be present, the intention to commit the crime does not need to be one of wickedness as some crimes may be committed with a good intention such as in the case of a mercy killing. Nevertheless this will still be considered murder. Review the cases of Adams ((1957) and Yip Chiu-Cheung v R (1994). Consider also the three (3) types of intent offences:  Basic Intent- This type of intent is needed for crimes such as those amounting to criminal damage. This element proposes that if the offender is aware that a risk exists and commits same with the intent to “destroy or damage any such property” or acts with recklessness for the wellbeing of same, this constitutes basic intent. Specific Intent – This type of intent is needed for more serious crimes where there is greater dependability on the burden of proof such as in the case of murder. This element proposes that where the offender acted purposely with awareness of the intended outcome and the act was purposed towards achieving same, the element of specific intent may be proven. Murder for instance would be constituted by specific intent. Ulterior Intent – intent where the outcome is not expressly known but some form of deprivation is anticipated. In the case of burglary for instance, an offender may enter the victim’s premises with the intent to deprive the inhabitants of possessions OR inflict harm OR cause damage or destruction to property. Activity 2: Discussion: Consider the following situations. In which if any do you think A intended grievous bodily harm (GBH)? a. A was frustrated because her baby would not stop crying and shook the baby knowing that it was virtually certain that it would suffer GBH. b. A was frustrated because her baby would not stop crying and shook the baby knowing that there was a substantial risk that it would suffer GBH c. A was frustrated because the baby would not stop crying and shook the baby hoping to startle the baby but suffer no harm Would you say that A’s actions show basic, specific or ulterior intent of grievous bodily harm? 1.3 Other Key Elements Recklessness As stated by Baird et al (2006) “Recklessness could be described as unjustifiable risk taking [which] would attract criminal liability…A person is reckless if, knowing that there is a risk that a consequence may result from his conduct, or that a relevant circumstance may exist, he takes that risk and it is unreasonable for him to do so having regard to the degree and nature of the risk which he knows to be present. This is deliberate conscious risk taking, based on what the defendant himself foresaw.” There is no charge for recklessness if foresight is not established however if no thought is given to the possible risk then recklessness may be established. See Cunningham (1957) and Caldwell (1982). A Case for Negligence Following from our previous discussion where recklessness may be established if no thought is given to the possibility of risk, negligence also emerges in this instance. Particularly if the offender should have been aware of the risk or his attempts to avoid the risk were insufficient then his acts may amount to negligence. Sometimes a breach of duty of care that results in death may be proven to possess grounds for the offence of gross negligence manslaughter. Transferred Malice If an intention to kill one person results in the death of another who was not the intended victim, transferred malice is said to have occurred and liability for the death will stand. However malice cannot be transferred if the actus reus and mens rea do not coincide. If for instance the actus reus was not the intended one then a charge may still apply but it will not be considered transferred malice. Consider if A poisoned B’s tea with the intent to kill B, however C who was not the intended victim, drank the tea instead and subsequently died. Then A will still be guilty of murder and this circumstance would be considered as transferred malice. Also consider if A threw a rock at B intending to cause grievous bodily harm to B. However B dodges same and instead C who was close by was struck by the rock and suffered severe injury as a result. Transferred malice would be said to have occurred in this instance and charges for GBH would stand. If however A threw a rock at B intending to cause grievous bodily harm and misses aim instead hitting and breaking someone’s car window, the malice would not be said to have been transferred although charges of criminal damage may still apply. This is because the act (as determined by the eventual outcome) and the intent do not coincide. As stated in the case of transferred malice, the actus reus and mens rea must coincide. 1.4 Strict Liability and the Presumption of Mens Rea As previously noted cases of strict liability are generally statute cases, those of lesser severity and often times attract fines with trials that do not require a jury’s deliberation ie misdemeanor offences. For strict liability cases, mens rea is not a requirement as only actus reus needs to be present and proven to determine guilt. The intent to commit the act is determined by the act itself. Consider that A drank his beer and dropped the empty can in the gutter and walked away. A is fined for littering. Whether he intended to cause harm by his act is not required to be proven as the presence of the act itself is considered sufficient of the offense of littering. Now while mens rea is not required for the act, it is still presumed as being present as the case of reason would apply. If a reasonably thinking individual ought to have known the outcome of the act it is assumed that the offender would have been or ought to have been fully aware of their act and therefore by committing the act intended to cause the outcome. See Sweet v Parsely (1970). Activity 3: Discussion Forum: Consider the following case and determine whether it is a case of recklessness, transferred malice, negligence or strict liability or any combination of these elements: A intended to attack B with his cutlass and having sharpened his cutlass, entered B’s home in search of B. C hid behind a curtain and A unable to find B, began slashing wildly around the house eventually striking C who was hiding behind the curtain. What is A’s liability?