Forms and aspects of Mens Rea

Question 1

What is direct intent?

Answer 1

1. The actor desires to bring about a certain result
2. Does not require for the offender to be aware of the certainty of the result, as long as the completion of the offence is the purpose

Question 2

What is indirect intent?

Answer 2

1. The actor knows his conduct will almost certainly bring about the consequences that he does not desire or primarily aim at
2. The result is intended is if it is not desired
3. Use the test of failure (if the result would not have happened, would the actor be disappointed?)

Question 3

What is conditional intent?

Answer 3

1. The actor is aware of the possible side-effects of his actions but decides to act nonetheless, thereby accepting these side-effects
2. Cognitive element - Awareness of a risk:
   - GR - Any possible chance
   - NL - Risk must be considerable
3. Volitional element - Acceptance of the risk

Question 4

What about HIV cases?

Answer 4

1. NL - You need a special risk-increasing circumstance - The court is reluctant to impose criminal liability
2. GR - Dolus eventualis is accepted for criminal liability
3. EN - Recklessness is accepted, even if the defendant is not aware that he is HIV positive because he is shutting his eyes to the obvious

Question 5

What is recklessness?

Answer 5

1. Middle ground between direct intent and negligence
2. Caldwell recklessness - Switch to an objective test - Not only awareness of the risk, but also the failure to foresee an obvious risk
3. R v G - Replaced Caldwell - The reckless actor must be aware of the risk he has taken
4. The risk must be unreasonable - Assessed by objective factors:
   - Likelihood of the occurrence
   - Social utility of the act
   - Nature and extent of the harm

Question 6

What is negligence?

Answer 6

1. Violation of a duty of care that causes a result prohibited by criminal law
2. Conscious negligence - The actor foresees the possibility of a consequence resulting from his conduct but wrongfully believes that it will not occur
3. Unconscious negligence - The actor wrongfully does not consider the consequences of his conduct - Always compared to a reasonable person, taking into account the characteristics of the offender - Requires gross negligence