Mens Rea

Question 1

What is mens rea

Answer 1

It refers to the guilty mind or fault element of an offence

Question 2

Construction of a crime

Answer 2

guilt of an offence involves a defendant being responsible for the criminal conduct or omission (AR), having any fault element that applies (MR) AND not having a defence.

Question 3

Degrees of fault ordered most fault to least

Answer 3

Intention
Recklessness
Knowledge
Negligence

Question 4

Intention can be direct or indirect

Answer 4

Intention is never presumed and it needs to be proven.

A defendant can be found to have intended the AR if: the defedant intended the AR in the ordiary, paradigm sense of “intention”

or

the defendant recignised that the AR was a virtually certain concequence of his or her actions,

The first is the ordinary meaning of intention, the defendant wants to bring about the outcome, which is why the defendant does the AR.

in the second, the defendant does not act to bring about the outcome, the defendant knows that the AR is a virtually certain concequence to their actions, but acts anyways.

Question 5

Direct intention

Answer 5

The defendant generally intends an outcome if it is something that he or she decides or seeks to bring about. “intention” includes spontaneous actions.

Forsight of consequences is not enough - must also be the reason why the defednant takes those actions or acts to being about the concequence

Question 6

Hyam v DPP

Answer 6

Petrol in letter box - purpose was to frighten - result being that two children die. Held: D intended a result if D knew that it was a highly probable result of conduct. Murder conviction upheld.

Question 7

Oblique intention NZ approach

Answer 7

R v Wentworth:
if an intended course of ation results in both ultimate (desired) concequences and incidental (undesired but forseen) concequences, both concequences are said to be intended.

it is generally accepted that intention embraced both direct and oblique intention.

An accused was acting ‘piurposfully’ as to any concequence if he acted in order to effect that concequence or another concequence which he knew would involve that consequence.

Question 8

Evidence of a belief to a “virtual certainty”

Answer 8

R v Hancock:
The greater the probability of a concequence the more likely it is that the concequence was forseen and that if that concequence was forseen the greater the probability is that that concequnce was also intended.

Question 9

Ulterior intent

Answer 9

Intention to do something in the future, example: carrying a crowbar intended for a burglary which has not yet taken place.

Police v Bannin: B charged with offence where the MR was “intent to commit any crime therein”.

Question 10

Intent IMPORTANT WARNINGS

Answer 10

Unless the defendant knows or believes to a virtual certainty that their actions will have a particular concequence, they did not intend it.

The greater the possibility of the concequence, the less believed a claim no tot have forseen that concequence.

Question 11

Recklessness - NZ position

Answer 11

Recklessness is established if the defendant recognised that there was a real possibility that his or her actions would bring about the prescribed conduct.

and

having regard to that risk, those actions were unreasonable. Thus, foresight i srequired - a real possibility. And the risk must be objectivly unreasonable.

R v Tihi:
T planned to take a taxi by force, put a knife against the drivers neck - driver was unaware of the knife and recieve a small cut near his eye. Held: went wihtout saying that having a knife agaisnt the drivers neck that he forsaw serious injury.

Question 12

Forsight of a real possibility of the AR

Answer 12

Recklessness means that the accused has forseen that the particular kind of harm might be done and yet has gone to take the risk.

Recklessness is made out where the defendant subjectivly recognises that there is a real possibility that his or her actions will bring about the AR, and that the risk is objectivly unreasonbale to take.

Question 13

Knowledge and willful blindness is…

Answer 13

a positive and correct belief on part of the defendant that the relevant circumstance does indeed exist.

Question 14

Knowledge of the circumstances

Answer 14

R v Crooks: where an offence is formulated so that the defendants acts “knowing” that some circumstance exists, this requires a positive and correct belief on part of the defendant that the relevant circumstances do indeed exist.

Question 15

Willful blindness

Answer 15

The defendant will only be willfully blind where the defendant fails to inquire because they knew what the answer was goign to be (more than a mere suspision or likelyhood) R v Crooks.

this means the defendant realises the likely truth of the matter, but refrains from inquiry in order not to know.

Question 16

Negligence

Answer 16

an objective assessment of an objectively recognisable risk. Unless otherwise specified, the standard is gross negligence.

Question 17

The test for negligence

Answer 17

JF v Police: 2 step process to determine. 1. whether there has been a depature from the stardard of care expected from a reasonable person, and whether that depature was major.

Essential question - whether it was reasonable for the defendant to go ahead with their conduct in the circumstances (if the defendant forsaw it, then they are likely to be both negligent and reckless.)

Question 18

R v Yogasakaran

Answer 18

An anaesthetist injected the wrong drug during emergency situation because it was not in the right drawer, this resulted in the paitents death. The anaesthetist was convicted of manslaughter. the aw requires medical professionals to excersise reasonable care, even in emergencies. possibly higher standard than lay person in those circumstances especially.

Question 19

Special characteristics of a person - are they encorporated into a reasonable person?

Answer 19

R v Hamer: A defendants characteristics are not relevant unless they rise an issue of insanity under section 23 crimes act.

(2)
No person shall be convicted of an offence by reason of an act done or omitted by him or her when labouring under natural imbecility or disease of the mind to such an extent as to render him or her incapable—
(a)
of understanding the nature and quality of the act or omission; or
(b)
of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.

Question 20

Transferred mens rea

Answer 20

If the defendant has the MR of an offence, yet the AR occurs in an unexpected way, then the MR can be said to be transferred to that AR. EG amy throws a ball intending to hit and hurt katey, the ball misses and breaks pams window. amy is charged with “intentional damage”.

The MR must be relevant to the AR in the offense itself

MR and AR must be for the same offense, for example, you cannot transfer MR for assult to criminal damage

When mens rea is tranferred so to are the defences.

Question 21

Concurrence - A complex single transation

Answer 21

Where AR occurs after the defendant has formed MR - the prosecutor might point to the subsequent act(s) of the defendant as a part of a larger, complex series of actions which should be viewed as a whole, where the defendant has MR at some earlier point during the transation.

Question 22

Concurrence - causation

Answer 22

Later AR was caused by an earlier action taken by the defendant when they possessed the required MR.

Question 23

Concurrence - Invouluntariness and antecedent fault

Answer 23

generally, if a defendant commits an AR in an invouluntary or automatic state, the concurrence element will not be satisfied (as there is no AR). However, you ay convict a defendant where they have earlier formed an intent, or the requisite MR, then deliberatly got themselves into an automatic state to commit the AR

R v Wickcliff

Question 24

Strict liability

Answer 24

Just need to prove actus reus beyond a reasonable doubt

Once the prosecution proves AR of an offence, then the offence is complete. However, there is. defence of “total absense of fault” in which the defendant must prove on the balance of probabilities.

Question 25

Three categories of offences strict and absolute liability

Answer 25

R v City of Sault
Crimes requiring MR

strict liability in which MR need not be established, can escape liability through defense of total absense of fault.

absolute liability, not open for the defendnant to show they were free of fault.

Question 26

Strict liability - possible defence

Answer 26

“total absence of fault” if you can prove beyond the balance of probabilities that there was an honest mistake of fact or it was not something the defendant could have reasonably avoided

although callled TOTAL absense of fault, it is sufficient upon the BOP that the defendant took a reasonable standard of care.

Question 27

PART ONE STEPS

Answer 27

Actus reus:
The crown will always need to prove AR. An offence will always have AR. ALWAYS IDENTIFY THIS FIRST!

identify the AR of the offence - is it conduct, circumstances a concequence?

did the accused commit the AR voluntarily? this is assumes unless defendant points to contrary evidence

did their act or ommission cause the AR - was it a significant and operating cause more than de minimus.

Question 28

PART TWO STEPS

Answer 28

Mens rea:
the presumption is that offences will also have an element or elements of mens rea. This is the guilty mind or fault element. The crown will always have to prove the MR elements unless it is a reverse onus offence (strict/absolute liabilit).

Identify the corrosponding MR required for each AR

What dies that standard mean? - give definitions of intention, recklessness, knowledge or negligence

Did the defendant act with the MR required
? factual question, so use all of the facts to justify your answer while linking your reasoning to the law ie the definition of the MR element identified).