Criminal Law 

Mens rea is the term used to represent the state of mind required of D (also known as the fault element). Mens rea is either subjective (concerned with D’s state of mind) or objective (assessed by reference to the reasonable person).

a legal wrong that can be followed by criminal proceedings which may result in punishment.

8,000

1. By source: crimes may be treated as common law or as statutory offences

2. By method of trial

3. By reference to the powers of arrest

4. By whether they can be regarded as true crimes or regulatory

statute

1. Acteus Reus

2. Men’s Rea

3. absence of a defence

a failure to act

consequence

1. The crime must be defined in such a way that it makes sense to say that an omission will suffice.

2. To commit a crime requires proof of an act more than merely preparatory’ to the commission of the full offence (s 1(1) of 148 the Criminal Attempts Act 1981)

3. Must be proven that d was under a duty to do some positive act e.g parental: parents have statutory obligations to their children and there is a specific crime of neglect of a child (s 1 of the Children and Young Persons Act 1933)

4. The omission to act must amount to a breach of the duty.

consequence

a carer did not seek help for a patient who had suddenly suffered a heart attack. If the evidence showed that the heart attack was so severe that the patient would have died no matter what treatment had been administered, then the failure to seek help did not cause the death.

act committed without volition, occurring in the absence of an accused’s will.

In Victoria, the defence of automatism is available under the common law.

Automatism can be used as a defence where the accused committed the offence/s involuntarily; the accused must show they had no control over their actions, performing them without conscious thought or intention – refer to R v Falconer (1990). The term implies total rather than partial lack of control and direction by their will – refer to Milloy v R [1993].

There are two types of automatism:

1. ‘Insane Automatism’ where the automatism is caused by a ‘disease of the mind’ or mental illness, e.g. schizophrenia, brain injury or tumour.

2. ‘Sane Automatism’ where the automatism is caused by something other than a ‘disease of mind’, e.g. concussion or hypoglycaemia.

3. There are some circumstances where both categories can apply. The preference for defence will always be to rely upon ‘Sane Automatism’.

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1. where the automatism is caused by something other than a ‘disease of mind’, e.g. concussion or hypoglycaemia

1. where the automatism is caused by a ‘disease of the mind’ or mental illness, e.g. schizophrenia, brain injury or tumour.

causation

1. cause in the fact of consequence

2. cause in the law of consequence

the consequence would not have occurred but for D’s conduct

White (1910), D did not cause his mother’s death and so was not guilty of murder when the medical evidence showed that she had died of a heart attack rather than from the poison which D had put in her bedtime drink.

it made a significant contribution to the occurrence of the consequence

The general rule is that D must ‘take his victim as he finds him’. This means that if, because of some special weakness in V, D causes greater injury to V than would normally have been expected, D will nevertheless be held to have caused the full extent of the injuries. If D hits V on the head in a way which would cause little more than bruising in most victims but V happens to have a weak skull and the blow kills him, D will be held to have caused his death.

This rule was relied on in Blaue, where it was said that the rule extended to ‘the whole man, not just the physical man’.

a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action. In criminal law, possession crimes and statutory rape are both examples of strict liability offenses.

‘intention’ or ‘recklessness’ as to the elements of the actus reus.

D’s purpose is to cause the consequence

e. g d points a gun at the victim and pulls the trigger intending to kill him

Where it is not D’s intent to bring about a prohibited result, but he sees the result as virtually certain to occur as a result of his actions

Actus reus broadly translates as ‘guilty act’ and refers to all elements of an offence that are not concerned with the state of mind of the defendant (D). It is worth noting that the actus reus of an offence does not have to be a positive act. For example, murder requires a ‘killing’ and this may be by way of a positive act or an omission.

claims to be justified due to the pressure applied by others in the circumstance

the prosecution

To make two crucial distinctions:

• between substances which are regarded as intoxicants and substances which are not; and

• between intoxication for which D is responsible (is at fault) (voluntary intoxication) and intoxication for which he is not (involuntary intoxication).

1. specific intent

2. basic intent

• proof of nothing less than an intention. They include murder, causing grievous bodily harm with intent to cause such harm, theft and robbery.

• satisfied by proof of recklessness and include man- slaughter, inflicting grievous bodily harm, assault occasioning actual bodily harm, assault, battery and criminal damage

15 years