LAWS1206 Lecture Notes - Lecture 2: Harry Gibbs, All England Law Reports, Summary Offence
Week 2
Criminal Responsibility, Proving an Offence at Trial and Element Analysis
Understanding Mens Rea
Specific Fault Elements
Intention, Knowledge, Recklessness, Negligence
How intoxication is taken into account in proving Mens Rea
Concurrence/Temporal Coincidence
Offences with no Mens Rea
othe presumption of mens rea
orebutting the presumption
ostrict liability v absolute liability
ostrict liability: the defence of honest and reasonable mistake of fact
Actus reus = The external or physical element/s of an offence; and
Mens rea
The required mental state/s or the fault element/s of an offence
“ …. state of mind at the time of the conduct….” R v Miller [1983] 2 AC 161, 174
(Lord Diplock)
Subjective Fault Elements:
Intention (see p 209ff);
o“Intent, in one form, connotes a decision to bring about a situation as far as it
is possible to do so – to bring about an act of a particular kind or a
particular result. Such a decision implies a desire or wish to do such an act
or to bring about such a result.” He Kaw Teh v The Queen (1985) 157 CLR
523, 569 (Brennan J) B&McS p 209.
oDistinguishing voluntariness (AR) from intention (MR)
“When A strikes B, his action can be divided into A's movement of
his fist and B's presence in the path of A's movement.” Brennan J in
He Kaw Teh v The Queen (1985) 157 CLR 523, 569.
Distinction between:
Mental state required to direct the movement of the arm (AR)
Intention to make contact with the other person (MR)
oIntention v Motive
‘Because motive as such is not an ingredient of a legal offence . . . it is
not necessary for the prosecution to prove that an accused had a
particular motive, still less one to commit the offence in question.’ De
Gruchy v R (2002) 211 CLR 85 per Kirby J at [53].
oOblique intention – when knowledge equates to intention
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Awareness as intention – knowledge of virtually certain results.
The Insurance Fraud Example.
At common law the degree of foresight has to be ‘little short of
overwhelming before it will suffice to establish the necessary intent’ R
v Maloney [1985] AC 905 at 925 per Lord Bridge
Distinguishing from recklessness.
oBasic intent and specific intent
‘General intent and specific intent are … distinct mental states.
General or basic intent relates to the doing of the act involved in an
offence; special or specific intent relates to the results caused by the
act done. In statutory offences, general or basic intent is an intent to do
an act of the character prescribed by the statute creating the offence;
special or specific intent is an intent to cause the results to which the
intent is expressed to relate.’ Brennan J in He Kaw Teh
Knowledge (see p 213-214);
oKnowledge entails a person being aware:
– that a particular consequence will result from his/her conduct
OR
– of the existence of a particular circumstance.
oKnowledge of a particular circumstance: example, lack of consent.
–NB awareness of risk may suffice in some circumstances
(recklessness as to circumstances).
oLevels of knowledge? Actual v imputed?
o“Wilful Blindness”: When a person deliberately refrain from making
inquiries once suspicions aroused?
–receive package from O/S
–suspect drugs but don’t inquire or open
oKnowledge means Actual Knowledge, “wilful blindness” has purely
evidential role Kural (1987) 162 CLR 502 and Pereira (1988) 82 ALR 217).
o
Recklessness (see p 215ff) (think subjective awareness of risk)
oReckless is about “conscious risk-taking”
oThe Essence of Recklessness is Subjective Awareness of Risk
Acting with foresight of possible consequences (general application)
offences other than murder: R v Coleman (1990) 19 NSWLR
467
risks that are ‘substantial’ or ‘real and not remote’: Boughey
v The Queen (1986) 161 CLR 10.
Acting with foresight of probable consequences (murder only)
La Fontaine v The Queen (1976) 136 CLR 62;
R v Crabbe (1985) 156 CLR 464.
RULE BREAKER: Failing to even turn mind to question of consent
(sexual assault)
R v Kitchener (1993)
oIndifference
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