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 The general principle of criminal law |
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Author: Robert Wilson
of
5th Floor Wentworth Chambers
This is an extract from Lawbook Company's Nutshell: Criminal Law by Robert Wilson (Sydney: LBC, 1999, 4th ed). LBC Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law. Written in clear, straightforward language, the authors clearly explain the principles, and highlight key cases and legislative provisions for each subject.
The criminal law contains various rules which must be brought into play in determining whether any given conduct by a person is, or is not, a crime. The most fundamental of these rules is the general principle that a crime is constituted by:
(a) certain conduct by an accused person;
(b) which causes a proscribed effect (such as death); and
(c) which is done with a guilty mind - withintention, recklessness or negligence. This principle is derived from the ancient maxim ``actus non facit reum nisi mens sit rea'' (an act does not make a man guilty of a crime unless his mind be also guilty).
Actus reus
The actus reus of a crime is made up of the conduct of the accused and the state of affairs which is the proscribed effect for that particular crime, i.e., (a) and (b) above.
Conduct
It is conduct (including omission) that is made punishable by our law - a guilty mind alone will not suffice: Haughton (1975) AC. The conduct is usually made up of a series or combination of acts carried out by the accused. The conduct may be at large (such as any conduct causing death) or prescribed specifically (such as the making of a false pretence) or by reference to some test (such as in a charge of attempt where the actus reus is conduct which is sufficiently proximate to the completion of the crime).
The conduct must be voluntary. There is no criminal liability for involuntary conduct - i.e., acts done without any control of the mind as, e.g., in the case where a reflex action is produced by pain. As voluntariness is usually presumed unless there is some evidence to the contrary, the issues involved in voluntary conduct are considered later.
Causation and proscribed effect
The conduct of the accused must, at least, substantially contribute to a state of affairs prohibited by the criminal law. It need not be the sole cause thereof. Contribution must be something more than minimal: Cato (1976) WLR; Evans (No. 2) (1976) VR. This involves a dual test; the conduct must cause the result in fact, and then in law. A person may intend to kill another and arrange a meeting to carry this plan into effect. If the intended victim is accidentally killed by some third party on the way to the meeting place, the first aspect is satisfied but not the second. Here the contribution of the accused's conduct is minimal.
The question at issue is always whether the accused's conduct was a substantial cause of the proscribed effect: Hallett (1969) SASR. If it was, it matters not whether there exists some other cause. An assault on a child may be a substantial cause of death despite a refusal by the child's parents to a blood transfusion which may have prevented the child's death: Blaue (1975) WLR.
Note that the definition of a particular crime may include in the actus reus not only the specific conduct and a proscribed effect but also additional particular circumstances. Theft is generally defined as the appropriation of property belonging to another. The circumstance that the appropriated property belongs to another is part of the actus reus. Also, one does not possess nor import heroin unless the substance in one's possession is in fact heroin (apart from any statutory deeming provisions). This must be proved by an analyst. However, where the definition of a particular crime includes some mental element (such as with malice aforethought) that element is not regarded as part of the actus reus - it is considered as part of the mens rea for that particular offence.
The conduct of the accused may consist of a series of acts extending over some period of time. What is the relevant time or determining criminal liability? The answer is that the accused's conduct at any time is relevant provided the casual connection is satisfied. The accused fell asleep whilst driving his car which went out of control and killed a pedestrian. He is guilty of manslaughter by criminal negligence if the evidence establishes that the circumstances under which he fell asleep discloses criminal negligence: Scarth (1945) QSR.
This principle is consistent with the rule, discussed below, that in some circumstances it does not matter that some of the acts done by the accused are involuntary (being asleep when the car went out of control) or are not accompanied by a guilty mind.
Mens rea
The conduct of the accused which has the requisite causal connection must be accompanied by a guilty mind. The doctrine of mens rea requires that at the time of the relevant conduct the accused had a certain state of mind towards her or his own conduct and the forbidden state of affairs which resulted. Under modern law this state of mind may consist of intention, recklessness or, with some conceptual difficulty, negligence.
It has been said that it does not matter if some of the accused's acts are done without mens rea provided mens rea is contemporaneous with other acts by the accused which form part of the overall conduct. This is perhaps a misleading way to state the effects of the principles relating to time, causation and mens rea. The mens rea must always be contemporaneous with some part of the accused's conduct which has the necessary causal connection. If this is so then it does not matter that some other part of the accused's conduct is done without a guilty mind. Where, e.g., a person is assaulted by the accused who thereafter, believing the victim to be dead, disposes of the body in a way which actually causes death, the accused is guilty of murder providing the earlier attack substantially contributed to the death of the deceased and was done with the requisite mens rea. The basis of the causal connection is that if it were not for the earlier attack the disposal of the body would not have taken place: Thabo Meli (1954) WLR; Church (1966) QB.
Generally, the accused must have mens rea of some form with regard to all the elements of the actus reus. Statutes may qualify this to some extent, particularly with regard to the onus of proof (e.g., Crimes Act 1914 (Cth), s. 14; Customs Act 1901 (Cth), s. 233B(1A)). In the absence of such qualification the prosecution must prove mens rea as to the accused's conduct, as to any relevant circumstances within the definition of the crime charged and as to the prohibited consequences. Mens rea as to conduct may be challenged by the defence of involuntariness (see below) but this should really be seen as a challenge to the actus reus. A true challenge as to mens rea normally relates to either the element of relevant circumstances (I did not know it was heroin) or the element of proscribed effect (I did not intend to kill that person). It is with regard to the latter element that mens rea in the form of intention, recklessness or negligence has traditionally the most relevance. Mens rea as to relevant circumstances is of particular relevance to the various drug offences. The general question is whether the accused was aware of what he or she was doing and was also aware of what results would follow.
Intention
An accused acts intentionally with regard to a given consequence by desiring to bring about that consequence or by merely foreseeing (i.e., knowing) that it would come about as a result of her or his conduct. These two tests may cover the same ground (as when the accused shoots at the victim wishing to cause death), but not always. If the victim is out of range the accused may desire the death although it is not foreseen as certain. Alternatively, a shot may be fired only with the desire to destroy the lock on a door but where the accused knows that the victim is directly behind the door and will be struck by the bullet. The accused acts intentionally with regard to the death of the victim in both cases. It is difficult to distinguish the latter case from recklessness.
An accused acts intentionally with regard to a given circumstance if he or she knows that circumstance to be a fact: He Kaw Teh (1985) CLR.
Recklessness
This question arises where there is no intention as defined above. The accused acts recklessly by consciously disregarding the existence of a relevant circumstance or the risk that the conduct may bring about a forbidden consequence. The accused removed a gas meter (to obtain money inside) whereafter escaping gas from the pipe caused injury to a person sleeping nearby. He has mens rea as to this injury if he foresaw that the removal of the meter might cause injury to someone but nevertheless removed it: Cunningham (1957) QB.
The risk must be substantial. In the case of murder the risk will be substantial where it is probable, i.e., something more than a mere possibility: Crabbe (1985) CLR. For other crimes a possible risk will suffice: Coleman (1990) NSWLR. The risk must also be unjustifiable (cf. the doctor who performs an emergency operation with almost no chance of success). Thus the accused must be aware that the risk exists (in order to disregard it) and that it is unjustifiable. If the accused realises that the consequence may happen it is of no moment that the degree of probability is underestimated. If the accused believes the consequences to be impossible he or she is inadvertent as to the risk and therefore cannot be said to be reckless. If the probability of occurrence of the consequences is in fact very slight there is no causation. The accused must also be aware that the risk of the consequences is unjustified in the sense that, it must be shown that he or she is aware of facts, which if true, would make it unjustifiable to disregard the risk. Whilst the accused is entitled to be judged on the facts as he or she believes them to be this element is still objective. An accused cannot argue that he or she believed the risk to be justifiable if, on the facts, an objective assessment is made by the jury that in truth the risk was not justifiable. Thus an accused's actual state of mind (a subjective test) is excluded: see La Fontaine (1976) CLR.
In the Code States the test is whether there is a "real chance" as to the risk: Boughey (1986) CLR.
Negligence
The question here is whether an accused ought to have considered relevant circumstances or consequences. Negligence applies to only a few crimes (e.g., manslaughter and s. 54 of the Crimes Act 1900 (N.S.W.)). The test is objective - whether the conduct of the accused involves a great falling short of the standard of care which a reasonable person would have exercised: Nydam (1977) VR; Evgeniou (1964) CLR. Would a reasonable person have foreseen, and avoided, a certain consequence or have been aware of the existence of a particular circumstance and avoided acting in such a manner. Pointing a gun which is not known to be loaded and pulling the trigger involves negligence as to circumstance (that the gun was in fact loaded) and to consequence (the killing of the victim).
Generally, the accused's state of mind here is irrelevant, though the actual conduct must of course be voluntary. Also, the knowledge of the accused (if he or she is, e.g., a firearms expert in the above example) may be relevant to show that no reasonable person, with such knowledge, would behave as the accused did. It has been said that if the accused has less knowledge than the reasonable person this will not help her or him. But is this so? Consider the case of an ignorant savage who has never before seen a firearm. Even a reasonable person, given such a circumstance (total unfamiliarity with the object), would not foresee the possibility of causing death. It has been said that the degree of negligence must be of sufficient magnitude so as to merit criminal punishment (Nydam, op cit) or so as to amount to "wickedness" (Taktak (1988) NSWLR).
Accident
An accused who raises a general defence of accident is really denying criminal liability because:
(a) there is no causal connection between the accused's conduct and the prohibited effect; or
(b) the accused's conduct is involuntary; or
(c) the accused acted without intention, recklessness and negligence.
This is the position in the common law States and also, it seems, in the Code States where a specific defence of accident is provided for.
This article should be read in conjunction with Exceptions to the general rule
Robert Wilson
BA LLM
Barrister
Wentworth Chambers
1999
March, 2001
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