Introduction to Components of Criminal Offences

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In order to prove a criminal offence, the prosecution needs to prove the following elements:

  1. Legal personhood - that the accused capable of bearing criminal responsibility. There will be no legal personhood if the accused is:
    • Under 10 years old (a child is doli incapax).
    • Deemed so mentally disabled that he is unfit to give instructions or properly defend himself: M’Nagten.[1]
    • When the accused is between 10-14, there is a presumption of doli incapax. It can be rebutted by:
      • A proof beyond reasonable doubt that the child knew that the act was morally wrong (not specifically unlawful) 'as distinct from an act of mere naughtiness of childish mischief’: C (A Minor) v DPP.[2]
      • The older the child (the closer to 14), the easier to rebut (and vice versa).
  2. Actus reus - that the accused actually performed the guilty act.
  3. Mens rea - that the defendant had a guilty mind.
  4. Coincidence of actus reus and mens rea - using the 'snapshot' view, the court determines whether there was the necessary guilty mind at the time of the guilty act: Meyers.[3]
    • The snapshot view might be 'stretched' when the guilty acts are actually a series of continuous acts: Thabo Meli, Le Brun, Fagan.[4] However, the snapshot view is generally preferred.

All of these elements need to be proven beyond reasonable doubt (known as 'the golden thread' ): Woolmington v DPP.[5]

  • The meaning of beyond reasonable doubt cannot be explained further to the jury - such an attempt will result in a miscarriage of justice: Thomas; Dawson; Murray.[6]
  • This burden of proof is distinct to an ' evidentiary burden of proof' (which the accused sometime has to satisfy) - a burden merely to show that there is sufficient evidence to raise an issue.
  • Evidentiary burdens of proof are determined by the judge and not the jury.

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


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. 312-316; 319-321; 323-326.


[7] This topic considers what needs to be proven before someone can be held responsible for breaching criminal prohibitions. General principles of the criminal law include:

  • The ‘golden thread’- the prosecution bears the burden of proof to prove the guilt of the accused beyond reasonable doubt (ie, threading the proof from beginning to end).
  • Performing a forbidden act (actus reus) does not by itself make a person guilty of a crime, but rather the person must possess the required guilty mind (mens rea) as well.
  • While these general principles have long been taken for granted, they are clearly not universal and appear to have been ignored in the development of criminal laws in recent times.

A Model Criminal Code

[8] Since 1991, there has been an attempt to create a common and unifying 'Model Criminal Code' for adoption in all Australian jurisdictions (currently, criminal law is different in every state).

  • The Commonwealth wants to 'unify' criminal law and make it the same across Australia.
  • Technically, the Commonwealth doesn't have the power to legislate regarding state criminal law.

This lead to the enactment of the Criminal Code Act 1995 (Cth) (which contains a Model Criminal Code in the schedule). However, this enactment has not been followed by the enactment of similar Codes by the States as of yet (ie, it has done very little).

Constructing Individual Guilt and Innocence

[9] There has been a debate regarding when individuals may be excused from punishment despite committing a criminal act. In other words, when exactly is an individual held responsible, and not held responsible, for their actions?

The Significance of Fault

[10] In determining responsibility there is an argument that a person who has engaged in prohibited conduct should not be convicted unless they knew/ought to have known what they were doing and the associated consequences.

  • It would be unjust to convict and punish someone unless they had chosen to act in the way they did.

This concept was discussed by Hart, who seeks to justify why criminal law should be concerned with the actual state of mind of the accused:[11]

  • The role of criminal justice in achieving general deterrence will be achieved regardless of whether the individual acted with an appropriate mens rea.
  • However, the accused’s mental state should be considered important in protecting ‘the individual against the claims of the rest of society’.

Constituting Legal Personhood

[12] Having 'legal persnhood' means being capable of bearing criminal responsibility. People are usually considered as having legal personhood, whilst animals, for example, do not. Establishing legal personhood involves looking at the offender’s state of mind at the time of the offending act. This is because not every human mind is regarded as capable of bearing criminal responsibility.

  • Mentally disabled or insane people as within the M’Nagten rules.
    • The person will not be tried if he is deemed so mentally disabled that he is unfit to give instructions or properly defend himself.
    • Even if this is not so (ie, not mentally disabled to that degree but still disabled), the defendant might still obtain a special verdict, such as not guilty by reason of mental illness etc.
  • In NSW, all children under 10 are treated as incapable of committing criminal offences.
  • Where a child has reached the age of 10 but not yet 14 they can be held criminal responsibility but there is a presumption that they are incapable of wrongdoing (doli incapax).
    • Presumption must be rebutted by the prosecution before criminal proceedings can be brought against them.[13]
    • Prosecution must prove beyond reasonable doubt that the child knew that the act was morally wrong (not specifically unlawful) 'as distinct from an act of mere naughtiness of childish mischief’.
    • The older the child (the closer to 14), the easier to rebut (and vice versa).

There have been attempts to expand criminal responsibility from simply natural persons to corporations as well. However, the courts have so far not developed a ‘corporate’ state of mind, and instead held that the state of mind of a company is equivalent to the state of mind of selected, high-ranking individuals in the company.

Actus Reus and Mens Rea

[14] These are two essential concepts of the criminal law.

  • Actus reus - a prohibited act. It is the physical element of a crime.
    • An actus reus of each criminal offence is distinctive.
  • Mens rea - intention to commit the prohibited act. It is the physical, or fault, element of a crime.

Structure of establishing a conviction:

  • The first issue in a criminal trial is whether the defendant performed the actus reus.
    • In contesting, the accused may argue that the act did not take place, that someone else did it, etc.
  • Next, the mens rea specified in the offence definition must be satisfied.
  • The accused may then raise a ‘defence’.
    • For ‘defences’ such as self-defence (complete defence), provocation (reduces murder to manslaughter) or others to succeed, the accused does not need to prove them, rather the burden is on the prosecution to negative their existence beyond reasonable doubt (they are thus not considered actual defences, since there is no burden of proof on the defendant).
    • For real defences such insanity, the burden of proof is on the accused. The prosecution must then negative the defence on the balance of probabilities.

Coincidence of Actus Reus and Mens Rea

[15] The general principle is that for an offence to be committed, the prohibited act and the fault element must coincide.[16]

  • If a forbidden act is performed by the accused, but the necessary criminal intent is not possessed at the time, then the accused is not guilty of the offence.
  • This is called the 'snapshot' view, where the exact time of the act is examined as a snapshot.

However, the courts have generally been willing to stretch this general principle by looking at a longer time frame, to avoid a misleading assessment of the defendant’s culpability from taking a ‘snapshot’ at a point in time.

  • Thabo Meli (from England):[17]
    • Facts: a group of men beat a man repeatedly with the intention of killing him. They thought he was dead (he wasn't) and then went and threw him off a cliff, intending to dispose of the body (he then died). They argued that when they actually killed him, there was no intention because they thought he was dead.
    • Held: It is 'impossible to divide up what was really one series of acts in this way. The defendants had a general intention to kill the person and it doesn't matter that they thought he was already dead when they did the final act.
  • Le Brun (from England):[18]
    • Facts: argument between a married couple, the husband struck the wife. He then 'dropped' her on the pavement because he was trying to push her into the house or to cover up the assault. She hit the pavement and died. Argued that he didn't do the second act with intention to kill or hurt.
    • Held: where there is one sequence of events, an interval of time between the two does not exonerate the defendant from liability.
  • Fagan (from England):[19]
    • Facts: Defendant accidentally rolled his car back onto a policeman's foot. When asked to remove it, he initially refused. Argued that when he did the act, he didn't have the intention, it was only formed after.
    • Held: Continuing act or series of acts considered as one and therefore the coincidence of act and intention is still satisfied.

These cases are sort of in conflict with the general principle of 'snapshot' given in Meyers. In general, it would be wiser to rely on the general principle given in Meyers, since it is a fairly recent High Court authority, rather than English authorities.

Actus Reus

See full article: Actus Reus.

Mens Rea

See full article: Mens Rea.

Strict Liability

See full article: Strict and Absolute Liability.

The Burden of Proof

[20] Who has the burden of proof makes a massive difference in a trial. Favourable standards of mens rea (such as intent, the highest standard) are only an illusory advantage if the accused has to burden to disprove it (rather than the prosecution having the burden to prove it).

In theory, the burden of proof should be completely on the prosecution: a defendant is innocent until proven guilty and has the right to remain silent. This means that technically, the defendant should be able to sit there quietly whilst the prosecution proves everything. However, this is not practical, and in several cases, the defendant will have the onus of rebutting a presumption of guilt (eg, drug possession etc).

Some of these issues were discussed in Woolmington v DPP:[21]

  • Facts: the defendant was accused for murdering his wife and appeared to be guilty on the facts. The trial judge instructed the jury that they should find him guilty unless he can convince them he is innocent.
  • Held: the judge giving such a direction means that the judge has decided the outcome of the case, which is not the common law. This identified the 'golden thread' of criminal law - the prosecution has to prove in a positive way each element of an offence beyond reasonable doubt.

The Golden Thread in Practice

[22] Despite the golden thread being a primary principle of the criminal law system, it has been abrogated by various legislation.

  • Absolute and strict liability offences are clear abrogations of the golden thread.
  • Drugs legislation is a controversial example of a statutory reversal of the burden of proof (deemed supply or possession etc)

The degrees of burdens of proof was discussed by the Australian Senate:[23]

  • Persuasive burden of proof (general 'burden of proof') - this is a burden of proof of persuading the jury to believe the allegation beyond all reasonable doubt.
    • It is the usual burden of proof required by the prosecution as per the golden thread principle.
  • Evidentiary burden of proof - this is a duty to show that there is sufficient evidence to raise an issue.
    • It is not a full burden of proof like the persuasive one is - it is merely a burden to produce some evidence which might dispute a presumption the court is under.
    • The defendant usually has such an evidentiary burden for things like an HRMF - merely to bring some evidence which suggests there might have been HRMF.
    • Whether an evidentiary burden of proof has been satisfied is determined by the judge.
    • After such a determination, the prosecution will have a persuasive burden of proof to refute the contention (ie, beyond all reasonable doubt).

Unfortunately, several statutory provisions place a persuasive burden on the accused, despite this abrogating the golden thread. Evidential burdens are also increasingly added on, such as in cases of intoxication, mistake, duress, self-defence etc. The Criminal Code (Cth) extensively uses evidential burdens.

Beyond All Reasonable Doubt

[24] It has been repeatedly stressed that a judge cannot attempt to explain to the jury what 'beyond a reasonable doubt it' is - it means exactly that.[25] A trial where a judge attempted to further explain to the jury what beyond reasonable doubt means will be a miscarriage of justice.

This is exemplified in Murray:[26]

  • Facts: the trial judge told the jury to decide which version of the story they prefer, the accused or the prosecution.
  • Held: the choice is not about which version is preferable, it is about whether the prosecution has proved the matter beyond a reasonable doubt. There is no comparative process between the versions - were you persuaded or not?

Proof in Practice

[27] The trial in common law jurisdictions is adversarial, with the prosecution and defence pitted against each other as combatants. The adversarial trial does not attempt to find "the truth". The issue is whether the prosecution has proved the precise components of the offence charged beyond a reasonable doubt. It is not required to show what "actually happened".

In D McBarnet, Conviction, Doreen McBarnet, writing about magistrate courts in England and Scotland, seeks to explain how it is that "in such a situation of ambiguity, conflict, subjectivity, fading or moulded memories, the judges of the facts can so readily find themselves convinced beyond a reasonable doubt".

  • Prosecutors do not have to prove everything a jury might want to know, they only have to produce a sufficiency of evidence. Juries have to be convinced beyond reasonable doubt - but they cannot choose the issues that they have to be convinced about.
  • Advocates are not concerned with truth but with persuasion as they are employed by the client to speak on behalf of them.


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


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. (1843) 10 C & F 200
  2. [1995] 2 WLR 383.
  3. (1997) 147 ALR 440.
  4. Thabo Meli [1954] 1 All ER 373; Le Brun [1992] 1 QB 61; Fagan [1969] 1 QB 439.
  5. [1935] AC 462.
  6. Thomas (1960) 102 CLR 584; Dawson (1961) 106 CLR 1; Murray (2002) ALJR 899.
  7. Textbook, p. 312.
  8. Textbook, pp. 312-4.
  9. Textbook, pp. 314-5.
  10. Textbook, pp. 315-7.
  11. HLA Hart, ‘Punishment and Responsibility’ (2008) in Textbook, 316-7.
  12. Textbook, pp. 319-22.
  13. C (A Minor) v DPP [1995] 2 WLR 383.
  14. Textbook, pp. 323-4.
  15. Textbook, pp. 324-5.
  16. Meyers (1997) 147 ALR 440.
  17. [1954] 1 All ER 373.
  18. [1992] 1 QB 61.
  19. [1969] 1 QB 439.
  20. Textbook, pp. 399-400.
  21. [1935] AC 462.
  22. Textbook, pp. 401-4.
  23. Australia, Senate Standing Committee on Constitutional and Legal Affairs, The Burden of Proof in Criminal Proceedings, Parliamentary Paper 319/1982 in Textbook, pp. 402-4.
  24. Textbook, p. 405.
  25. Thomas (1960) 102 CLR 584; Dawson (1961) 106 CLR 1.
  26. (2002) ALJR 899.
  27. Textbook, pp. 405-9.
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