Mens Rea

From Uni Study Guides
Jump to: navigation, search

Mens rea means 'guilty mind', and refers to the mental element of an offence. To be guilty of a crime, an accused needs to have satisfied this mental element requirement, or the mens rea standard. Different offences will require the accused to have satisfied different levels of mens rea standards before they are deemed guilty of that offence. The standards (ie, the mental element required) are as follows (ranked from hardest to prove to the easiest to prove):

  1. Intent - the accused actually intended to do the actus reus (complete subjective inquiry into the mind of the accused)
  2. Knowledge/recklessness - the accused was aware that there are possible (or even probable) harmful consequences of the action, and yet proceeded anyway (subjective inquiry, but not as stringent as the one of intent).
    • Where the accused is unaware of the harmful consequences only because he willfully tried to block himself from knowledge, he will still be deemed to have been aware under the principle of willful blindness: Crabbe.[1]
    • Where the accused is unaware of the harmful consequences of an obvious risk, he will still be deemed to have been aware under the principle of inadvertent recklessness: Caldwell.[2]
    • Obvious risks are risks that would be obvious to a reasonable person (inadvertent recklessness is thus somewhere between a subjective and an objective inquiry).
  3. Negligence - a reasonable and ordinary person in the position of the accused would have known or foreseen that harm was likely to follow from the actus reus, and proceeded anyway (objective inquiry, the actual state of mind of the accused is irrelevant).
  4. Strict liability - no requirement of mens rea at all, but the accused can escape liability by arguing honest and reasonable mistake of fact (HRMF).
  5. Absolute liability - no requirement of mens rea at all and no defence of HRMF. The prosecution must merely prove the actus reus.

When legislation is silent on the question of mens rea (ie, the statute only specifies the actus reus), there is a presumption that mens rea is still required: He Kaw Teh.[3]

  • This presumption can be rebutted in three ways.
    1. Subject matter: if the words suggest that the parliament intended otherwise.
    2. Nature of offence and punishment: if the offence and punishment are fairly trivial, it might not necessitate a mens rea requirement.
    3. Whether having no mns rea will help enforcement: if the enforcement of the law is likely to be assisted by removing a mens rea requirement from this offence (within reason).

This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 341-378.

Introduction

Mens rea means 'guilty mind'. It refers to the intent of the accused to do the criminal act and cause the criminal consequences. The determination of mens rea can be done either subjectively (which usually means a narrow approach) or objectively (which usually entails a broader approach):

  • Subjective mens rea - an investigation into the actual state of mind of the accused person at the time they were committing the alleged offence.
    • The most difficult to prove, and the highest form of mens rea.
    • It is the strongest onus for the prosecution.
    • Most mens rea standards are subjective.
  • Objective mens rea - what would a reasonable person in their position have been thinking at the time of committing the act.
    • That is, a reasonable person when hypothetically confronted with the situation in which the accused found themselves
    • A more expansive approach.

Mens Rea Standards

[4] For different crimes, different levels of mens rea is needed (ie, recklessness is sufficient mens rea for murder, but negligence is sufficient only for manslaughter). The mens rea standards can be seen as a spectrum ranging from the hardest to prove to the easiest to prove:

  1. Intent - this standard requires that the accused actually intended to do the actus reus. It is the highest standard of mens rea, and is determined completely subjectively (inquiry into the mind of the accused).
  2. Knowledge/recklessness - this standard requires that the accused was aware that there are possible (or even probable) harmful consequences of the action, and yet proceeded anyway. It is determined using a subjective test, but not as narrow as the one of intent, being a lower standard of mens rea.
  3. Negligence - this standard requires that a reasonable and ordinary person would have known or foreseen that harm was likely to follow from the actus reus, and proceeded anyway. It is determined using an objective test, and is a much lower standard of mens rea.
    • This means that for some offences, an accused can be seen as having mens rea simply for behaviour falling so short of what a reasonable person would have done in the same situation.
  4. Strict liability - this standard has no requirement of mens rea. However, the defence of honest and reasonable mistake of fact (HRMF) is available to the accused (this is discussed more in detail in Strict and Absolute Liability).
    • Prosecution proves actus reus.
    • Defence claims/and supports the claim that there was a genuine mistake, and that it was acceptable according to the objective standard of the reasonable person (a reasonable person could have made that mistake).
    • The prosecution must then negative this defence to convict.
  5. Absolute liability - this standard has no requirement of mens rea and no defence of HRMF. The prosecution must merely prove the actus reus in order to convict the accused. This is the lowest standard of mens rea.
    • For example, driving with a proscribed level of alcohol.

Asking Mens Rea Questions About the Actus Reus

[5] For certain offences, different standards of mens rea may be required for each of the individual elements of the actus reus.

  • In other words, intent might be required for the act itself, whilst only recklessness will be needed for the circumstances or consequences.

General, Specific and Ulterior Intent

[6] The court has sometimes grouped offences as requiring 'general (basic), specific, or ulterior intent.[7] The division works as follows:

  • General intent refers to the intention to do an act (eg, intention to punch).
  • Specific intent refers to the intention to bring about a consequences (eg, grievous bodily harm, murder).
  • Ulterior intent refers the intention to bring about a consequence, but without the actual occurrence of the event (eg, wounding with intent to cause grievous bodily harm - doesn't require the actual causation of the grievous harm).

Intent and motive

[8] In Australia, motive is irrelevant in establishing mens rea or securing a conviction. Motive is somewhat recognised in things like the defences of self-defence (ie, motive of self preservation), and the partial defence of provocation (ie, motive of jealousy)

Transferred Malice

[9] According to the "doctrine of transferred malice", where the defendant attacks someone (or something) with mens rea for a particular offence, misses, but nevertheless "accidently" brings about the actus reus for the same offence in relation to a different person (or different thing), the mens rea can, essentially, be added together, and the defendant can be convicted of the offence.

  • In Latimer (1886) 17 OBD 359, the defendant was convicted of unlawfully and maliciously wounding Y where he had aimed a glancing blow with his belt at X, but it had bounced off and accidently hit Y who was standing close by.

Mens Rea as to Circumstances

[10] The actus reus of many offences does not require proof of a consequence, simply the completion of the act in certain circumstances. In such cases, the mens rea might be a part of the 'circumstance' part of the actus reus.

  • For example - Rape. Even if it is established that there was no-consent, the defendant might argued that he was not aware that there was no consent (a mens rea issue).
  • There are different ways of looking where consent is placed - whether it is a part of the act (ie, the act of rape being a package of 'non-consensual sex') or whether it is a part of the circumstance (ie, the act is merely sex, and it is the circumstance of being non-conesensual that makes it rape).
  • According to where consent is placed, different standards of mens rea are required (eg, intent, recklessness, negligence etc), and thus, whether it is judged subjectively or objectively.

Mens Rea in Terrorism Offences

[11] In terrorism offences, the primary mens rea issue often relates to the fact/circumstance that the organisation is a terrorist organisation. Accordingly, the higher the mens rea that can be proved, the higher the sentence will be (ie, proof of intent would mean a greater sentence than proof of recklessness, whilst negligence is not sufficient).

Willful Blindness

[12] Willful blindness occurs where an accused has actually tried to block himself from knowledge which would render him guilty of an offence.[13]

  • In other words, only reason that the accused doesn't know the circumstances that would make the act criminal is because he has willed himself to be blind.
  • For example, wearing earplugs to avoid hearing 'no' in rape.

In such cases, the court will sometimes attribute to the accused the knowledge he sought to avoid.

Inadvertent Recklessness

[14] Inadvertent recklessness is a term used to describe a state of mind where the accused acted in a way which creates an obvious risk, and without giving any thought to that risk.[15] In other words:

  • In the case of obvious risks, the failure to even consider that the behaviour may have harmful outcomes is sufficient for criminal behaviour.
    • Obvious risks are risks that would be obvious to a reasonable person.
  • It is distinguished from normal recklessness in that the accused gave no thought to the to the risk, whereas in normal recklessness, the accused considered the risk and then acted regardless.
  • Inadvertent recklessness is a blurring of this subjective mens rea requirement (used for recklessness) and an objective ‘reasonable person’ test (used for negligence).

Is There a Role for Objective Standards?

[16] There are reasons both for an against applying an objective standard to mens rea:

  • People may not reach the standard of awareness expected of an ordinary person for various reasons such as mental retardation, overly optimistic, different cultural backgrounds etc.
  • However, it is appropriate to have objective standards, as we induce them, and others, to be more sensitive to situations in which they find themselves.

Mens Rea for Attempt

[17] While actus reus elements of attempt are being watered down, this is not happening with regard to mens rea.

  • The mens rea for an 'attempt' is narrower or potentially narrower than the mens rea for the completed crime.
  • Only intent is relevant in terms of mens rea.
  • Thus there is an insistence on proof of a high degree of culpability in the mens rea requirement.

In Knight, the High Court ruled that the intention that must accompany a crime of attempt is the intention to commit the complete offence.[18]

  • Facts: Knight was convicted of attempted murder resulting from an altercation with Salvo, during which Knight fired two shots. The second shot (which was the basis for the attempted murder charge) hit Salvo. Knight appealed against his conviction, arguing that the Crown had failed to prove that he had the requisite intention to kill at the time that the gun was discharged.
  • Held: The appeal was dismissed.

‘Impossible Attempts’

[19] Especially in the law of attempt, there appears to be a decreased concern with actus reus, and an increased focus on the accused’s state of mind as the demonstration of criminality.

  • While the attempt to do the ‘impossible’ was not previously a crime, the influence of drug laws and other developments has led the courts to increasingly hold that there is no difference.
  • For example, regarding the offence of supply, s 40 (1) of the Drug Misuse and Trafficking Act 1985 (NSW) deems a substance to be what the defendant believes it to be (ie, if the defendant was selling something he believes to be a drug, it is a drug in the eyes of the law regardless of whether it actually is).

Interpreting Statutory Criminal Offences

When legislation is silent on the question of mens rea (ie, the statute only specifies the actus reus), there is a presumption that mens rea is still required. The leading case in Australia for this is He Kaw Teh:

  • Even when the legislation is silent on the question of mens rea, there is a presumption that mens rea is still required.
  • This presumption can be rebutted in three ways.
    1. Subject matter: if the words suggest that the parliament intended otherwise.
    2. Nature of offence and punishment: if the offence and punishment are fairly trivial, it might not necessitate a mens rea requirement.
    3. Whether having no mns rea will help enforcement: if the enforcement of the law is likely to be assisted by removing a mens rea requirement from this offence (within reason).
  • In offences where specific circumstances are an element of the actus reus (eg, assault of a police officer, rape), mens rea will not be satisfied unless the prosecution proves that there was no honest and reasonable mistake on behalf of the defendant (ie, that he knew or reasonably should have known of the circumstances).

The Significance of He Kaw Teh

[20] He Kaw Teh provides a framework for analysing statutory criminal offences created under NSW legislation. It is authority to the proposition that all statutory criminal offences fall into the following three categories:[21]

  1. Offences where the prosecution is obligated to prove mens rea.
  2. Offences where mens rea is presumed unless there is proof of an HRMF (called 'strict liability' offences).
  3. Offences where mens rea plays no part (called 'absolute liability' offences).

As such, a major part of He Kaw Teh is the classification of strict and absolute liability offences, the former being protected by the HRMF 'defence'. The courts have been reluctant to classify offences as absolute liability offences:

  • In Hawthorn (Department of Health) v Morcam Pty Ltd,[22] the court suggested that absolute liability should not be imposed where the imposition would not assist in preventing the offence. In that case, the imposition of an absolute liability would not have been a deterrent because the accused was under an HRMF.
  • In CTM,[23] the High Court indicated that a Parliamentary desire for absolute liability in an offence should be made clear by ‘express language or necessary implication’.
    • In other words, Parliament should manifest an intention that it does not want people acting under a HRMF acquitted.

It is interesting to note that despite the statement in He Kaw Te that there is a presumption that mens rea is still required even where legislation is silent (thus falling into category 1), courts almost always interpret such cases as falling into category 2 or 3 (meaning the presumption has been rebutted).

  • This is probably because most of the times the prosecution don't even argue that it falls into category 1.
  • Category 2 of strict liability is seen as a halfway point between categories 1 and 3: the onerous burden on the prosecution to prove actual state of mind, and the very harsh nature of absolute liability where only actus reus needs to be made out.

End

This is the end of this topic. Click here to go back to the main subject page for Crime & the Criminal Process.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. (1985) 156 CLR 464, 470.
  2. [1982] AC 341.
  3. .
  4. Textbook, pp. 343-5.
  5. Textbook, pp. 341-3.
  6. Textbook, pp. 345-6.
  7. He Kaw Teh (1985) 157 CLR 523..
  8. Textbook, pp. 346-7.
  9. Textbook, p. 347.
  10. Textbook, pp. 347-9.
  11. Textbook, p. 349.
  12. Textbook, pp. 349-50.
  13. Crabbe (1985) 156 CLR 464, 470.
  14. Textbook, pp. 350-1.
  15. Caldwell [1982] AC 341.
  16. Textbook, pp. 351-2.
  17. Textbook, pp. 353-4.
  18. (1992) 109 ALR 225.
  19. Textbook, pp. 354-6.
  20. Textbook, pp. 370-2.
  21. Wampfler (1987) NSWLR 541.
  22. (1992) 29 NSWLR 120.
  23. [2008] HCA 25.
Personal tools
Namespaces

Variants
Actions
Navigation
Toolbox