Crime and the Criminal

Process

Components of Criminal Offences (2)

Mens rea
Attemps: mens rea
Creating ‘facts’ through interrogation
RECAP
• 3 categories of actus reus:

• Conduct elements: conduct elements comprise acts and omissions

• Consequence or result elements: e.g. results or consequences of murder

• Circumstance elements: circumstance in which conduct, or the consequence, occurs

TODAY’S CLASS
The mental elements applicable to the actus reus elements
Questions to consider:

 How are MR standards related to AR elements?

 What are the different MR standards and what do they require the prosecution to prove?
 What role does MR play in attempt cases?
 Why are police interviews so important for constructing evidence of MR?
 MENS REA – THE ‘GUILTY MIND’
The mens rea - the fault or mental element, aka the guilty mind

Terms relevant to mens rea Terms irrelevant to mens rea

• Intent • Motive
• Recklessness • Premeditation
• Knowledge • Wicked
• Negligence • Maliciously
 MENS REA – THE ‘GUILTY MIND’
Precise mens rea, and the test for the mens rea (e.g. what ‘recklessness’ means) will vary depending
on:
• The corresponding physical element (the mens rea for acts will differ from the mens rea for circumstances and
results)
• The specific offence in question: circumstantial
• From time to time there are ‘ulterior intent’ elements, where there is a mens rea element with no corresponding
actus reus.

Identifying the mens rea is a question of statutory construction, with some offences expressly setting
out the mens rea, and others leaving it to judicial imagination:

express
Crimes Act 1900 (NSW)
s 18(1): alternative MR
standards
open category
 THE MENS REA FOR CONDUCT ELEMENTS: INTENT
• The mens rea for each conduct element is almost always intent.

• Intent can be:

Basic: intention with respect to the conduct itself

Specific: intention with respect to results or consequences
Ulterior: additional mens rea element not related to the actus reus

Example: A shoots B with intent to kill

Whether A shot B intentionally basic
is… intent
Whether A intended to kill B is…specific intent
 MENS REA: INTENT

• Definition of intent? It is a matter for the common law:

”When directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration
or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the
necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to
the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid
misunderstanding: R v Moloney [1985] AC 905; R v Hancock [1986] 2 WLR 357; R v Woollin (1999) 1 Cr App Rep
8 (HL)”

• Criminal Code (Cth) is illustrative (does not apply to state [NSW] offences, so please do not cite in an
exam):
MENS REA: INTENT

Example of basic intent

Specific intent. See Table

 MENS REA: INTENT

Example of ulterior intent

Additional objective (commit any serious indictable offence) beyond the act itself
(entering the building as a trespasser)
THE MENS REA FOR CONSEQUENCE ELEMENTS

RELEVANT TERMS:

INTENT = purpose or object

RECKLESSNESS = awareness of risk (probable or possible)

NEGLIGENCE = reasonable person would have realised the risk

ABSOLUTE LIABILITY
 INTENTION WITH RESPECT TO CONSEQUENCES
Term irrelevant to mens rea: motive
• Distinction between purpose (intent), desire, and motive:
“In ordinary parlance, purpose, desire and motive may be used interchangeably. However, in law motive describes the
reason that prompts the formation of the accused's intention. The accused may fire a pistol at his business partner. His
intention or purpose in pulling the trigger may be to kill. His motive for forming that intention may be to avoid repaying
a debt he owes to his partner. Where liability for an offence requires proof of the intention to produce a particular result,
the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in
the conduct. Purpose here is not to be equated with motive.” Zaburoni v The Queen (2016) 256 CLR 482 [17] (Kiefel,
Bell, and Keane JJ).

• The Criminal Code (Cth) [s 5.2(3)] definition appears to be broader than the common law definition in Zaburoni:
 RECKLESSNESS WITH RESPECT TO CONSEQUENCES
• The meaning of recklessness differs from offence to offence. But broadly speaking:
“[r]ecklessness describes a state of mind in which a person adverts to the risk that particular conduct may result in particular harm
and, with that awareness, engages in that conduct. A person may be more or less reckless depending upon the person's awareness of
the likelihood of the risk materialising”: Zaburoni v The Queen (2016) 256 CLR 482 [42] (Kiefel, Bell, and Keane JJ).

• Central concept: foreseeing (being aware of) some risk, with the magnitude of that risk varying from
offence to offence:
• For murder, the requirement is that the accused foresee the probability of death: Crabbe (1985) 156 CLR 464
• For grievous bodily harm, the requirement is that the accused foresees the possibility of death: Aubrey (2017) 260 CLR 305

5.4(3) of the Criminal Code (Cth)

Again, not applicable to state offences
 NEGLIGENCE WITH RESPECT TO CONSEQUENCES

• Negligence involves an objective standard: reasonable man

*more than the civil standard of negligence as applicable in tort law
≠ from intent and recklessness: about the defendant

• Example: Criminal negligence manslaughter

“in circumstances which involved such a great falling short of the standard of care which a
reasonable man would have exercised and which involved such a high risk that death or grievous
bodily harm would follow that the doing of the act merited criminal punishment”: Nydam [1977] VR
430 (see also Lavender (2005) 222 CLR 67).
 NEGLIGENCE WITH RESPECT TO CONSEQUENCES

Statutes:

Criminal Code (Cth) definition: federal

THE MENS REA FOR CIRCUMSTANCE ELEMENTS

RELEVANT TERMS:

KNOWLEDGE (everyday meaning)

RECKLESSNESS = awareness of risk (probable or possible)

STRICT LIABILITY = absence of an honest and reasonable mistake of fact

ABSOLUTE LIABILITY
 KNOWLEDGE WITH RESPECT TO CIRCUMSTANCES
• The most culpable mens rea for circumstance elements is knowledge

• Knowledge = subjective question of what the Defendant in fact knew or was aware of

Example:

Criminal Code (Cth) definition

 KNOWLEDGE AND BELIEF
• Belief = subjective question of what the Defendant believed to be true, irrespective of whether that
was in fact true.
The Guide for Practitioners to the Commonwealth Criminal Code notes: “The significance of the reference to “belief ” is not
immediately apparent. The most obvious distinction between knowledge and belief is that one can believe, but one cannot
know, something that is false in fact … A requirement of belief might be taken to require something less than the degree of
conviction required for knowledge, but something more than the pallid substitute of mere suspicion.”
 RECKLESSNESS WITH RESPECT TO CIRCUMSTANCES

• Recklessness with respect to circumstance can be:

Advertent
Inadvertent

• Advertent recklessness: largely mirrors recklessness for result or consequence elements.

E.g. for sexual offences, where one avenue to proof of guilt is that the accused was reckless as to whether the complainant
consented, the question is whether the accused was aware of the possibility that the complainant was not consenting. Hemsley
(1988) 36 A Crim R 334.
 RECKLESSNESS WITH RESPECT TO CIRCUMSTANCES

• Inadvertent recklessness: available for some offences and constituted where the accused fails to
advert to the circumstance at all.

Not available for common assault. In Macpherson v Brown (1975) 12 SASR 184, Bray CJ commented:

“It is much to be desired that the word ‘reckless’ should be confined to action where the relevant consequences are adverted
to even if not desired … It is contrary to fundamental principles and the whole tenor of modern thought to judge a man in a
criminal court, except under statutory compulsion, not by his actual intention, knowledge or foresight, but by what a
reasonable and prudent man would have intended, known or foreseen in the circumstances’
 RECKLESSNESS WITH RESPECT TO CIRCUMSTANCES
• Inadvertent recklessness: available for sexual offences.
Kitchener v R (1993) 29 NSWLR 696:
“To criminalise conscious advertence to the possibility of non-
consent, but to excuse the reckless failure of the accused to
give a moment's thought to that possibility, is self-evidently
unacceptable. In the hierarchy of wrongdoing, such total
indifference to the consent of a person to have sexual
intercourse is plainly reckless, at least in our society today.
Every individual has a right to the human dignity of his or her
own person. Having sexual intercourse with another, without
the consent of that other, amounts to an affront to that other's
human dignity and an invasion of the privacy of that person's
body and personality … Such a law would simply reaffirm the
view that our criminal law, at crucial moments, fails to provide
principled protection to the victims of unwanted sexual
intercourse, most of whom are women. Our law is not
unprincipled or inadequate in this regard.” (Kirby P)
 MENS REA STANDARDS

• Subjective mens rea elements require the Crown to prove what was in the accused’s mind at the time
that the relevant act was committed (e.g. when A shot B, what was going through A’s mind?)

To avoid the difficulty of proving subjective mens rea, Parliament, from time to time, has legislated:
• Objective mens rea standards, such as strict liability standards -> where the Defendant’s subjective
intent is not relevant, but where there is an element that the Defendant must have lacked an honest and
reasonable belief in a state of affairs that would render their conduct innocent.
* Defence = absence of an honest and reasonable belief
 MENS REA STANDARDS

• The wholesale removal of mens rea standards, being absolute liability offences -> where the
Defendant’s subjective intent is not relevant, and the Defendant will be guilty irrespective of whether
they were labouring under an honest and reasonable belief in a state of affairs that would have
rendered their conduct innocent.

* Unlike strict liability, where the defence of mistake of fact may be available, absolute liability bars this
defence. This means that even if the defendant made a reasonable mistake about the facts of the
situation, they can still be found guilty.
 DETERMINING MENS REA

• Common law offence: analysis of relevant precedent

• Statutory offence: statute interpretation (presumption: MR is required)

 MENS REA: ATTEMPT

• Where there are multiple avenues to satisfy the mens rea for an offence, the mens rea for the attempt
version of that offence is the one for the intentional version of that offence.

E.g. Murder can be satisfied with an ‘intent to kill’ or an ‘intent to inflict grievous bodily harm’.

Attempted murder can only be satisfied with an intent to kill.

Knight (1992) 109 ALR 225 (HC) = guilty of recklessly causing serious injury instead of attempted murder
 MENS REA: ATTEMPT

• Impossible attempts: Increased focus on mens rea

• Law allows for Defendants to be convicted where they hold a relevantly guilty mind even where it
was impossible for the offence to be completed
Most common example is controlled operations for drug importation cases, where law enforcement authorities might be
aware of an offence about to take place, and switch actual prohibited substances with dummy packages.

Precedent: Mai (1992) NSWCAA

Shift away from general principles of criminal law towards accommodating the demands of law enforcement
 MENS REA: ATTEMPT

• Impossible attempts: Increased focus on mens rea

• Law allows for Defendants to be convicted where they hold a relevantly guilty mind even where it
was impossible for the offence to be completed
Most common example is controlled operations for drug importation cases, where law enforcement authorities might be
aware of an offence about to take place, and switch actual prohibited substances with dummy packages.

Precedent: Mai (1992) NSWCAA

Shift away from general principles of criminal law towards accommodating the demands of law enforcement
 CREATING “FACTS” THROUGH INTERROGATIONS
• Police interrogation – constructing a case against the suspect

 In theory, police interrogation is to elicit relevant facts

 In practice, police interrogation seeks a confession consistent with the police desired account. This is done by the type of
questions –

1. Leading questions: You intended to injury him, didn’t you?

2. Statement questions: suspect is defied to contradict or invited to confirm a statement

3. Legal-closure questions: forcing information into a legally significant category

4. Imperfect syllogistic questions: induces the suspect to accept that an erroneous proposition logically follows from
accepting unarguable propositions. Act (not disputed) + Consequence (not disputed) = guilty? (what about mens rea?)
 EXERCISES

Conduct Circumstance Consequence

Actus reus
Mens rea
 EXERCISES

s 33(1)(a)

Conduct Circumstance Consequence

Actus reus
Mens rea
 EXERCISES

Conduct Circumstance Consequence

Actus reus
Mens rea
 EXERCISES

Conduct Circumstance Consequence

Actus reus
Mens rea
NEXT CLASS

COMPONENTS OF CRIMINAL
OFFENCES (4)
Strict Liability
Interpreting Statutory Offences

Readings:

Textbook, pages 213-219, 192-210