elements of crime (1 Viewer)

[_JoHNnY_]

i was just wandering to be guilty of a crime do you only need to prove mens rea and actus reas, or do you need to prove both and causation.. or just causation on its own?

 

[hYperTrOphY]

All three.

 

[Jonathan A]

Depends.

Not all crimes require Causation unless the crime specifies a consequence must occur.

A Crime Generally needs:

Actus Reus (the guilty act)
This can be:
-An act or failure to act (E.g. punching)
-A Circumstance (e.g. in the presence of a child)
-A Status (e.g. drunken state in public)
-Consequence i.e. your act led to something (e.g. Murder)

Mens Rea (Guilty mind)
-Intention (e.g. intent to kill or intent to punch)
-Recklessness - knew of a possibility but persisted
-Knowledge (e.g. knowledge of person not consenting to sexual intercourse)

This is very general. But some offences onlny require an act (Absolute Liability). Other offences require also a mental element. With Murder you need an Act, Intention and what is important that the act (or failure to) caused death.

Overall, it depends on the offence the wording of the legislation.

 

[erawamai]

Not all crimes require Causation

Are you sure about that?

Mens Rea (Guilty mind)
-Intention (e.g. intent to kill or intent to punch)
-Recklessness - knew of a possibility but persisted
-Knowledge (e.g. knowledge of person not consenting to sexual intercourse)

Mens Rea is intention. Recklessness is enough to satisfy mens rea. Knowledge is a component of recklessness. At least when you are talking about sexual assault and murder.

 

[_JoHNnY_]

hey thanx for that Jonathon A... cleared things up

 

[melsc]

Jono is absolute liability the same as strict liability???

 

[erawamai]

is absolute liability the same as strict liability???

yes........................

 

[melsc]

thanks just wanted to be sure

also were does negligence fit it, is it the mens rea or does it mitiagate mens rea???

 

[Jonathan A]

Are you sure about that?

Prove me wrong. Causation is a physical element. I could be wrong, but my understanding is that it is part of what is required depending on the offence we speak of.

 

[Jonathan A]

thanks just wanted to be sure

also were does negligence fit it, is it the mens rea or does it mitiagate mens rea???

NO ITS NOT. erawamai's advice is incorrect.

You have three types of criminal responsibilities:

-High Order - Need of Mens Rea and Actus Reus
-Strict Liability
-Absolute Liability.

High Order (a term used for it) requires SUBJECTIVE test to determine mens rea. The prosecution needs to prove that the defendant intended, was reckless/indifferent. If the defendant had no intention, they are innocent. Even if it is unreasonable, it does not matter. As one judge said (the case escapes my mind), we shouldn't punish for being stupid.

Strict Liability often incorporates an OBJECTIVE test to determines mens rea. That is, the prosecution need to prove the act and that you SHOULD HAVE been aware that the act was criminal. This is linked with negligence (hence can apply to Manslaughter). There is a defence to this: that you made an Honest and Reasonable Mistake/Belief. The prosecution needs to prove you did not posess this. What is reasonable? It is what would a reasonable person, in your position have done.

Aboslute Liability needs NO mens rea at all. The fact you commit the physical elements is enough for a crime. AN example of this is selling alcohol to a minor.

THe difference between them is hard to determine. Generally, all offences are presumed to have a mental element (He Kaw Teh v R), however it is a matter of looking at the law. Some only require mental elements for some parts e.g. Assault occassioning actual bodily harm. You need to prove physical elements:
-Act of Assault
-Causation of Harm
-Mental element of Intention/Recklessness for Assault

 

[erawamai]

Prove me wrong. Causation is a physical element. I could be wrong, but my understanding is that it is part of what is required depending on the offence we speak of.

How can you have no causation? the act of the person must have led to the crime. Unless, as you say, the crime is not based on an outcome that leads from an act.

...and yes I made a mistake. There is a difference between absolute and strict liability. However I think it would be wrong to suggest that a strict liability offence has some kind of mens rea element. Practically the difference is that the defence of honest and reasonable mistake is avaliable. From what I remember the initial burden is on the defendant to prove honest and reasonable mistake, not on the prosecution.

 

[Jonathan A]

How can you have no causation? the act of the person must have led to the crime. Unless, as you say, the crime is not based on an outcome that leads from an act.

...and yes I made a mistake. There is a slight difference between absolute and strict liability. However I think it would be wrong to suggest that a strict liability offence has some kind of mens rea element. Practically the difference is that the defence of honest and reasonable mistake is avaliable.

What about Status Offences? There is some form of causation in the regard you speak of, but that is splitting hairs. Is there an authority for that belief, e.g. Speeding caused by voluntary pushing the accelerator.

There is still a difference. The fact it exists shows that your statement "yes......." was not correct. Strict Liability does have some mental element to it, its objective.

Are you by any chance studying Practice and Procedure or something of the sort? (Generally where theory is critiqued).

 

[erawamai]

Are you by any chance studying Practice and Procedure or something of the sort? (Generally where theory is critiqued).

I did criminal law about a year and a half ago.

Having a quick brush though my old text I always through that honest and reasonable belief defence burden was initially on the defendant.

'the burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of the state of facts, which if true, would take his act outside the operation of the enactment and on those grounds he did so believe' - Proudman v Dayman

........................

 

[Jonathan A]

Remember there are two types of burden, Evidentiary and Persuasive.

 

[melsc]

remember guys this is in the legal studies forum, so basically all we need to know is the three elements

 

[Aimz- Lou.]

Jonathan A, how come you originally said that strict liability and absolute liability were the same, and then you distinguished between them later? I'm confused. I thought strict liability was the one that required NO mens rea, as well - such as traffic offences.

 

[cabby]

the 3 elements of a crime are simply mens rea, actus reus and causation

 

[Jonathan A]

Jonathan A, how come you originally said that strict liability and absolute liability were the same, and then you distinguished between them later? I'm confused. I thought strict liability was the one that required NO mens rea, as well - such as traffic offences.

I never said that. I have maintained that for theoretical purposes there is a difference. If you were a police officer pulling up a person for a stric liability offence, chances are you would not ask them "Did you make an honest and reasonable mistake?"

For the HSC, if asked, there is a difference.

To clarify:

Strict and Absolute are almost the same. Except in Strict Liability, the defence of honest and reasonable mistake/belief can be raised. The prosecutor needs to prove that the accussed did not possess this H&R belief.

 

[TessaBu]

guys if you keep going with this one syllabus point you'll get hernias...
the most they could ask for would be a 3,4 mark question (if they even ask it) and from the sounds you'll all get the marks...

keeping it in perspective