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 Exceptions to the general rule 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.
Omissions
The conduct of the accused may consist of inactivity rather than activity. If so, there is no actus reus unless the accused is:
(a) under some duty by statute, common law or agreement to perform the act omitted; or
(b) under some duty by virtue of a special relationship with the victim: Russell (1933) VR . The clearest examples are where a parent fails to obtain medical care or to assist a drowning child. In both cases there is a special relationship and the victim is in a helpless situation; or
(c) under some duty by virtue of some prior act of commission towards the victim, e.g., where a driver fails to assist a pedestrian he has just injured: Miller (1983) All ER; Taktak (1988) NSWLR.
Duties are specified in the Code States.
Strict liability
Certain crimes, usually as the result of legislation, may be committed without any mens rea - the accused acts without intention, recklessness or negligence. The prosecution need only prove the elements in the actus reus in the simpler cases involving strict liability. This situation arises only where the statutory provisions creating the crime, either expressly or impliedly, provide that the crime may be committed without mens rea. This is a matter of statutory construction. For the principles involved, see Cameron (1980) CLR.
The defence of an honest belief, on reasonable grounds, in the existence of circumstances which, if true, would make the accused's conduct innocent is normally available even though mens rea is excluded under the doctrine of strict liability. An offence of strict liability becomes one of absolute liability if this defence is not available as a matter of law - all an accused can do in this situation is deny the actus reus or raise some other affirmative defence which may be available, such as duress: He Kaw Teh (1985) CLR.
Vicarious liability
The general principle as to actus reus and mens rea has the corollary that no person is liable for the crimes of another. This is subject to the principles of complicity (see below) and vicarious liability. Both these exceptions involve derivative responsibility (liability for the crime of another). An accused may be liable under either or both doctrines.
Vicarious liability only applies where a person delegates apublic duty to another which is breached by that other or where a person is responsible for the crimes of an employee in the limited circumstances established by authority; particularly where the crime arises from a statute. A corporation may be liable under this doctrine for the acts of another, particularly its employees.
In addition, a corporation may be liable for a crime as a party thereto as where a person who commits the crime is part of the ``controlling mind'' of the corporation: Hamilton (1988) CLR. Here the corporation is seen as a joint perpetrator rather than as an accomplice (see below). The corporation will normally have available the defence of reasonable precaution and due diligence: Tesco Supermarkets (1972) AC.
Statutes may also expressly provide that a corporation is (vicariously) liable for offences committed by its officers. Specific defences may also be formulated in the statutes.
Transferred malice
The accused's guilty mind need not precisely mirror the elements of the actus reus: Latimer (1886) ER. A person may fire a gun into a crowd at random, thus not intending to kill the particular victim who in fact is killed, or intend to shoot a particular person but in fact kill a bystander. This is sufficient mens rea in the form of intention (ignoring the question of recklessness) as the particular mens rea (intent to kill a particular person) may be transferred and applied to the actual actus reus (the firing of the gun and the killing of the bystander). This doctrine only applies where the means rea to be transferred and the actual actus reus involve the same type of crime (in this case, murder).
Robert Wilson
BA LLM
Barrister
Wentworth Chambers
1999
March, 2001
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