The Elements of Criminal Liability

The Elements of Criminal Liability

ACTUS REUS & MENS REA

"Actus non facit reum nisi mens sit rea", or "an act does not make a man guilty unless his mind be also guilty (Burgess, 2004, p.8)." In criminal law, for an individual to commit a crime, there must be present two elements. They are:

* Actus Reus (meaning guilty act - or omission); and

* Mens Rea (meaning guilty mind).

Actus Reus is the guilty act or omission in the commissioning of a crime. In short, it is what the offender does or doesn't do which results in a crime taking place. Mens Rea is the guilty mind behind the crime. It is what tells the offender that what they are doing or not doing is wrong but they do it regardless. An act can be described as an action carried out by the offender in order to commit the crime. On the other hand, an omission is the opposite, where an offender neglects to take action to prevent a crime. To omit something is to leave it out, failure to act (Halsey, 1986, p. 704). For example: Watching someone have a heart attack and no attempting to render assistance or call an ambulance could be classified as an omission. The failure to render assistance or calling an ambulance resulted in the person's death.

These elements can also be described as a physical element and a fault element. The Commonwealth Criminal Code of Australia sets out that the physical elements of an offence must include an element of conduct involving the offender. Conduct may be an act, an omission, a state of affairs or some combination of those elements (AIJA Magistrates' Conference, July 2001, p. 6). The Code also defines five distinct fault elements: intention, knowledge, recklessness, dishonesty and negligence (AIJA Magistrates' Conference, July 2001, p. 6).

Majority of crimes require not only the proof of an action or omission having been perpetrated by the offender but a guilty mind must also be established before a person can be convicted. In other words, the prosecution must prove not only that the accused committed the offence but that s/he did it knowing that it was against the law; that their act (or omission) was done with the intent to commit a crime.

However, an act or omission must be voluntary. That is the offender carried out the act or failed to act on purpose, knowing full well of the consequences. For example: Lucy ran her husband down with their old Tarago, knowing that her actions would probably result in his death or at least serious injury. For an act or omission to be voluntary, the offender must have known and thought about the results of their actions and knowing these continued with the act or omission regardless of the consequences.

The elements of a crime can be shown clearly via the following diagram:

(Burgess, 2004, p. 9)

DEFENCES TO CRIME

The elements of a crime are affected by the defences to crime. Where the Prosecution must prove beyond reasonable doubt that there was some voluntary act (actus reus) and a guilty mind (mens rea).The defence must only prove the defence upon the balance of probabilities. Defences to different crimes include: intoxication; self-defence; accident; provocation; battered woman syndrome; mental impairment; automatism; consent; and necessity. The following is a brief description of each and how mens rea is affected by them:

* Intoxication: someone who is charged with an offence may be found not guilty of an offence if they were so heavily under the influence of alcohol and/or drugs that they did not possess the intention to commit the crime they are accused of. However, it has been found by the Parliament of NSW that juries in Victoria are reluctant to accept intoxication as a defence (Mullen, 2000, pp.5-6). The defence of intoxication therefore would prove that the accused had no mens rea or no guilty mind so the accused cannot be found guilty of an offence. For example: In the ACT, rugby player Noa Nadruku was acquitted of assaulting his wife and two other women because he was "too drunk to know what he was doing (Beazer, 2002, p. 105)".

* Self-defence: someone who is charged with an offence (such as murder, assault or attempted murder, etc.) may claim that they were in fear of immediate attack and/or injury. The accused must also show that they genuinely believed that it was necessary in self-defence to do what they did to protect themselves or others from harm. The force used by the accused in their self-defence should match that of the individual placing the accused in immediate fear (The Law Hand Book, 2003, p.1). However, this is not correct if the genuinely believed at the time that a greater force was required to save their life or the life of another. For example, if the accused is being threatened by a knife, s/he can not retaliate in self-defence with a firearm. A knife, however, would be appropriate. Therefore, in the defence of self-defence there is, again, no mens rea and so the accused is not guilty of an offence (such as murder, assault, attempted murder, etc.).

* Accident: in some cases, the accused may claim that the act or omission was a mere misadventure or accident. Therefore they did not possess a guilty mind at the time of the offence and so, again, cannot be found guilty of an offence (Beazer, 2002, p. 100). For example: George was driving his car through a busy shopping strip. He was travelling at 40km/hr, well below the prescribed speed limit, when Irene walked out onto the street in front of George's car. George didn't have time to stop and hit Irene. Irene died. Because George was not driving recklessly and could not reasonably foresee that Irene would step out in front of his car, it was an accident that she was hit and killed.

* Provocation: the accused may claim provocation or a loss of self-control. While this is not a full defence to most crimes, provocation is said to affect an individuals' mens rea. With out full mens rea, the severity or seriousness of an offence is reduced. For example, if a person accused of murder claims to have been provoked into committing murder, their charge may be lessened to manslaughter. In 1998, Barbara Denny was found non guilty for the murder of her husband, but guilty of manslaughter. Her not guilty plea was based on provocation related to her husband's behaviour during their marriage. She received a three year suspended sentence (R v. Denny [1998] VLR 938). In Mrs. Denny's

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