LAWS1206 Lecture Notes - Lecture 2: All England Law Reports, Socalled, Daryl Dawson
Week 2 Monday- Elements
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
the presumption of mens rea
rebutting the presumption
strict liability v absolute liability
strict liability: the defence of honest and reasonable mistake of fact
Monday, 27 February 2017
08:01
Main case: He KawTeh v R (CLR CASE)
Criminal responsibility and proving an offence at trial and element analysis
Mens Rea= State of Mind at time of Conduct
Actus non facit reum, nisi mens sit rea
“The act itself does not constitute guilt unless done with a guilty/wrongful intent”
“ …. state of mind at the time of the conduct….” : R v Miller [1983] 2 AC
161, 174 (Lord Diplock)
-what state of mind has to be proved
-the mental state of the accused
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Paradigm criminal offence
Significance
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
Public Act/Private Mind
‘[H]uman beings consist of two distinct elements: a physical body, which
occupies and moves in space, and a non-physical mind, which thinks and feels. Bodies
are public, whereas minds are essentially private: others can directly observe my body
and its movements, but only I can directly observe what is going on in my mind.’: RA
Duff, intention, agency and criminal responsibility 1990, p116
Fault elements
Subjective: what was in the criminal's mind, what was taken place in that
person's mind
Objective: no access to the accused's mind
Objective: recklessness is subjective, but sexual assault includes an objective
form of recklessness(awareness of risk)
Subjective fault elements
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Intention (see p 199ff);
Knowledge (see p 203-5);
Recklessness (see p 205ff) (think subjective awareness of risk)
oActing with foresight of possible consequences (general application)
oActing with foresight of probable consequences (murder only)
oRULE BREAKER: Failing to even turn mind to question of consent
(sexual assault)
objective fault elements:
Negligence
How does the prosecution prove a subjective state of mind?
Actions before hand
Inference
Admission- offender confesses
Inferential reasoning and Mens REA
"Absent a comprehensive and reliable confession, it is usually impossible for the
prosecution actually to get into the mind of the accused and to demonstrate exactly what
it finds was there at the time of the criminal act. Necessarily, therefore, intention must
ordinarily be inferred from all of the evidence admitted at the trial. In practice this
is not usually such a problem. But the search is not for an intention which the law
objectively imputes to the accused. It is a search, by the process of inference from the
evidence, to discover the intention which, subjectively, the accused actually had.”-
Kirby J, Peters v The Queen (1998) 192 CLR 493, 551
Ask the jury, with all the evidence, whether the accused had the state of mind
"did I intend to kill that person": how long the knife was etc, where the area
was stabbed
The role of inference in the criminal law
Tendency
State of mind: relies heavily on inferences
What is the mens rea if the section were to read:
Summary Offences Act 1988 (NSW)
s 4A (1) A person must not use offensive language in or near, or within hearing from, a
public place or a school, with an intention to offend.
Would the inclusion of this MR element make it hard for the prosecution to prove
the offence? To what standard would they have to prove the existence of intention?
Need to prove she intended to offend someone,
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