LAWS1016 Lecture Notes - Lecture 3: Actus Reus, Prima Facie, Mens Rea
16 May 2018
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3| The Elements of Criminal Offences I
Brown:
• Components of a criminal offence:
Based on the maxim: actus non facit reum, nisi mens sit rea – An act does not make a
defendant guilty unless they have a guilty mind (done with guilty intent)
1. The prohibited conduct, the actus reus, (the ‘physical element’ in Criminal Code
(Cth) s3.1(1)).
▪ Spelt out in the definition of an offence: any acts/omissions, circumstances
in which the act took place, and any consequences
2. The mental element, the mens rea, (the ‘fault element’ in Criminal Code (Cth)
s3.1(1)).
▪ If specified, the mens rea refers to any accompanying fault elements in the
definition of the offence
▪ If not specified that the mens rea is part of the offence, see principles
established in He Kaw Teh
• The burden of proof:
Rules, in order of what happens at a trial:
1. Evidential burden on the prosecution
▪ Prima facie case must be established for the elements of the offence
▪ Standard of proof: beyond reasonable doubt
2. Evidential burden on the accused
▪ They bear an evidential burden for any facts they may want to raise an
issue about e.g. any defences
▪ However, the accused will generally bear an evidential burden of proof in
relation to defences; s 13.3(3) of the Criminal Code: ‘A defendant who
wishes to rely on any exception, exemption, excuse, qualification or
justification provided by the law creating an offence bears an evidential
burden in relation to that matter.’
▪ This evidential burden is this way because some defences, such as self-
defence, may be raised in all offences, and the prosecution cannot be
expected to immediately disprove the availability of the defence of self-
defence, when they do not know if the accused will even raise it
▪ Standard of proof for prosecution: beyond reasonable doubt
▪ Standard of proof for accused: balance of probabilities
3. Legal burden of proof on the prosecution (see Woolmington exceptions)
▪ The prosecution must establish elements of the offence, beyond reasonable
doubt, and disprove any defences brought by the accused
▪ The prosecution must disprove the case raised
▪ It is sufficient for the prisoner to raise a doubt as to his guilt, as there is no
burden laid on the prisoner to prove his innocence: see Woolmington
▪ Standard of proof for prosecution: beyond reasonable doubt
Note on standards of proof:
▪ Burden of proof, whether legal or evidentiary, on the accused, is always on
the balance of probabilities
Legal burden vs evidentiary burden:
▪ Legal burden (persuasive burden) – exceptions outlined in Woolmington
▪ In Criminal Code (Cth):
1. Legal burden: means the burden of proving the existence of the matter
2. Evidentiary burden: means the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter exists or
does not exist – any party which wants to raise an issue in question,
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which is in favor of them – if judge believes that the evidence is enough
to leave to the jury to decide, then its sufficient evidence
▪ But in Criminal Code (Cth), the fact that placing legal burdens on the
defendant should be kept to a minimum is reflected in that where the law
imposes a burden of proof on the defendant, it is an evidential burden, unless
the law expresses otherwise: Criminal Code (Cth) ss13.3(1), 13.4. Section
13.4 states that a defendant will only bear a legal burden if the law expressly
specifies that the burden of proof is a legal burden
▪ Evidential burden does not carry with it the assumption of the same sort of
risk of an unsafe/wrongful conviction as the legal burden
The persuasive burden on the prosecution; the golden thread rule: Woolmington v
DPP:
▪ Issue: Could the conviction of Woolmington be quashed on the grounds that
the judge said it was for the jury to decide whether Woolmington had proved
that the evidence was in his favour? Result: It definitely reversed the onus of
proof. Judge had misdirected the jury by telling that he as presumed guilty of
murder unless he could satisfy the jury that his wife’s death was due to an
accident
▪ Lord Sankey’s ‘golden thread’ rule:
Throughout the web of the English Criminal Law, one golden thread is
always to be seen, that it is the duty of the prosecution to prove the prisoner’s
guilt subject to what I have already said as to the defence of insanity and
subject also to any statutory exceptions. If… there is a reasonable doubt,
created by the evidence given by either the prosecution or the prisoner, as to
whether the prisoner killed the deceased with a malicious intention, the
prosecution has not made out the case and the prisoner is entitled to an
acquittal
▪ Lord Sankey also noted that if the accused brought no evidence, then the jury
would have to convict him with no other choice
▪ NOTE ALSO: The golden thread rule only places the legal burden on the
prosecution specifically, rather than the evidentiary burden, which can be
placed on both parties
Rationale for the burden of proof on the prosecution
▪ Lord Sankey said the burden of proof lay on the prosecution for the purposes
of highlighting the presumption of innocence, and the fact that we live in a
liberal state that values individual liberty (no wrongful convictions) rather
than false acquittals
▪ Ashworth in ‘Four Threats to the Presumption of Innocnece’ (2006) ‘The
presumption is inherent in a proper relationship between State and citizen,
because there is a considerable imbalance of resources between the State
and the defendant, because the trial system is known to be fallible and above
all, because conviction and punishment constitute official censure of a citizen
for certain conduct and respect for individual dignity and autonomy requires
that proper measures are taken to ensure that such censure does not fall on
the innocent’
▪ Therefore, Ashworth relates the principle to both the presumption of
innocence, as well as the rationale for criminalisation for the purposes of
censure, which thereby requires the State to have a duty to protect the
innocent
▪ Presumption of innocence serves a dual purpose:
1. Protection from wrongful convictions and
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