Major Criminal Law Issues - Case Study Example

INTRODUCTION The imposition of liability on a defendant charged for the commission of a criminal offence is generally based on the fact that at the time of committing the guilty act, the defendant possessed a guilty state of mind. There has to be a trail of malice afore thought. This is referred to as CONTEMPORANEITY RULE. Substantially, the act of committing a criminal offence is referred to as the ACTUS REUS while the state of mind of the defendant at the time of committing the criminal offence is referred to as the MENS REA. THE ACTUS REUS The actus reus does not just mean the act. It takes into account the circumstances and consequences aimed at establishing the liability of the defendant in a criminal charge. It reasons beyond the mental elements to other facts surrounding the commission of the offence charged. Basically, crime can be categorized into two sets: 1. the conduct crime 2. the result crime CONDUCT CRIME: Where there are conduct crimes, the actus reus in itself is a prohibited conduct. Thus, in a case of dangerous driving, harmful consequences need not be established to prove the defendant's actus reus. [1] RESULT CRIMES: It must be shown that a prohibited result is caused by the conduct of the defendant. In a criminal damage for instance, the actus reus will be that another person's property has been destroyed and or damaged. [2] It is pertinent to state that the conduct of the accused person should be free willed or voluntary in order to incur liability. Acts may sometimes be involuntary. They may result from a wide variety of reasons such as: 1 S.2 Road traffic Act, 1988 2 S.1 Criminal Damage Act, 1971 REFLEX ACTIONS: These are situations where people react to things spontaneously. It can be viewed as a form of automatism but with some dissimilarity. A classical example is illustrated in the case of HILL v. BAXTER [3] where a driver was stung by bees while on steering driving and he lost control of the car. PHYSICAL FORCE: Where conduct is found to be involuntary resulting from a remote force from another person. There will be no actus reus. LEICESTER v. PEARSON [1952] 2 All ER 71 AUTOMATISM: This occurs where the defendant performs an act but is unaware of what he or she doing. It is also the case where due to some external factors; such defendant is not in control of his or her actions. R v. QUICK [4] CAUSATION: At instances where the ascertainment of actus reus requires that certain consequences occur, the prosecution must prove that the defendants conduct actually resulted in the occurrence of those consequences.Thus in a charge of murder, the prosecution must prove that the victim died .[5] It must be established that the victim suffered grievous bodily harm or in a criminal damage, that the property was destroyed or damaged. TWO TYPES OF CAUSATION: 1 Causation of facts which makes use of the "But For" test .R v. WHITE [6] 2 Causation in law for which the defendant's act must be( for example in homicide cases), the "operating and substantial cause of death" R v. SMITH [7] 3 [1958] 1 All ER 193 4. [1973] 3 All ER 347 5 S.18 Offences against the Person Act, 1861 6 [1910] 2 KB 124 7 [1959] 2 All ER 193 MENS REA Mens rea is used to establish criminal liability. The standard common law test is usually expressed with the maxim actus non facit reum mens sit rea, which means that an act will not make a person guilty unless the mind is also guilty. There must be an actus reus accompanied by mens rea to constitute the crime for which the defendant is charged. The exception here is strict liability crimes. Mens rea can be classified into three sub - heads namely; INTENTION - Here the defendant is shown to have foreseen the consequences of his action. RECKLESSNESS - Has been developed in the case of R v. CUNNINGHAM [1957] 2 AER 412. Where recklessness, was said to be requiring a subjective other than objective test. Malice in statutory definition of crime must be considered to require either: (i) The actual intention to inflict a particular harm that was done; or (ii) Recklessness as to ascertain whether such harm will occur or not. CRIMINAL NEGLIGENCE - The difference between criminal negligence and recklessness is in the absence or presence of foresight to prohibit the consequence. Recklessness can be viewed as misfeasance whereas criminal negligence can be viewed as either misfeasance or nonfeasance.e.g. Omissions. WHO HAS THE ONUS TO PROVE MENS REA AND THE ACTUS REUS Fundamentally, the onus of establishing the possession of mens rea and the actus reus by the defendant at the time of committing a criminal offence charged lies primarily on the prosecution. Suffices to state here, that the standard of proof is beyond reasonable doubts .The prosecution has to satisfy the Judge or Jury that the defendant possessed both elements in order to establish his case. Otherwise, the defendant will be acquitted. In the instant case, where Sara picked up a jacket and left the shop without paying for it while on a shopping trip with Rebecca; does not conclusively ground a criminal liability on Sara's part. To establish a defendant's liability, the actus reus and the mens rea must be concurrent at the time of committing the criminal act. The actus reus and the mens rea must be shown to have coincided. Since there are some cases where the literal interpretation of this rule will result in manifest injustice, the courts have made efforts to develop ways of determining the coincidences of the mens rea and the actus reus to include: a. where the event takes place for a period of time; b. where they constitute a course of events. Thus when there is a continuing act of the actus reus, a later mens rea at the time of its continuance may coincide to establish a liability. KAITAMAKI v. R [8]. The courts have also considered the chain of events as another means of ascertaining criminal liability. If it is shown that at some time in the chain of events, the actus reus and the mens rea are present, then a liability ensues. THABO MELI v. R [9] and the case of R v. CHURCH [10] Can a person be held criminally responsible for failing to act The principle here is that there can be no liability resulting from failing to act, unless at the time of failing to act, the defendant was under a legal obligation to have taken positive action. It was held in the case of R v. MILLER that " unless a statute specifically so provides, or .the common law so imposes a duty upon a person to act in particular way towards another a mere omission to act [ cannot lead to criminal liability]".[11] 8 [1985] AC 147 9 [1954] 1 WLR 228 10 [1966] 1 QB 59 11 [1983] 1 All ER 978 The difference between positive act and omission was outlined in the case of BLAND [12] where euthanasia by means of ending a patient's life, such as administering a drug to bring about his death was held to be unlawful. However withdrawing medical treatment, including artificial feeding, from an insensate patient with no hope of recovery when it was known that the result will be death was said to be lawful if it was in the patient's best interest not to prolong his life. WHAT IS THEFT By virtue of S.1 (1) of the Theft Act, 1978 as amended in 1996; "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intent of permanently depriving the other of it; thief and steal shall be construed accordingly". By the above definition, it is settled that certain elements must be present in order to establish an act of theft: i. There must be a property (S.4 of the Theft Act, 1968) ii. The property must belong to another (S.5 of the Theft Act,1968) iii. There be a dishonest appropriation of that other's property (S.2 of the Theft Act,1968) iv. There must be an intention to permanently deprive the other of the said property. (S.6 of the Theft Act,1968) (1) On whether Sara committed a crime of theft, where she absentmindedly left the store without paying; will not prima facie posit an act of theft going by the definition provided in S1 of the Theft Act, 1968 as amended in 1996. The operating word here is "absentminded" meaning that there was no intention (mens rea) to so appropriate (actus reus) the jacket as hers without making payments. However; her claim that she had no memory of the incident goes to suggest a denial of the act; thus, establishing the mens rea and the actus reus concurrently. 12 [1993] 1All ER 821 In the instance, if there are medical records to show Sara's short memory as a result of some ailment, medications taken or evidence of an event capable of impairing Sara's mind; then that can be used to mitigate the charge. See DPP v. BEARD [13]; also the cases of R v. TANDY [14]; R v. WOOD [15]. My point is that as motive is distinct from mens rea, evidence of motive or absence of motive is relevant (but not essential) evidence for making inferences for the purposes of proving or disproving the actus (issues of identity) or the mens. Otherwise, a claim of lack of memory will not indemnify Sara since ignorance of the law amounts to no issue. (2) On whether Sara committed a crime of theft where she hid the jacket in her bag and left the store: The conduct of Sara demonstrates clearly, the concurrence of the mens rea and the actus reus. The fact that Sara hid the jacket in her bag is an act (guilty act) pre-conceived (guilty mind). It justifies the definitive ingredients of theft in S.1 [16]. Sara will be criminally liable for the charge of theft under this circumstance. This is an example of a crime held to be of specific intent. R v. SHEEHAN [17]. Also R v. CHURCH supra (3) On whether Sara committed a crime of theft where she believed her friend Rebecca had already paid for the jacket: As a duty due to the defendant's prior conduct, the law is that if the defendant accidentally commits an act and subsequently becomes aware of the danger he or she has created, there arises a duty to act reasonably to avert that danger. R v. MILLER [18]. Thus, where Rebecca was believed to have paid for the jacket, Sara had no intention (guilty mind) to dishonestly appropriate and deprive the owners of their property.S.2 (1) (a) Theft Act, 1968.Sara should pay as she is now aware that her friend Rebecca did not pay for the jacket. 13 [1920] AC 479 14 [1989] 1 All ER 267, CA 15 [1981] 74 Cr.App.R.312, CA 16 Theft Act, 1968 17 [1975] 1 WLR 739 18 [1983] 1 All ER 978 REFERENCES (1) Asif Tufal, [2002], Criminal Principles. Retrieved May 3, 2006 from the law teacher.net website: http://www.lawteacher.net/Criminal/Principles/Actus%20Reus%20Lecture.htm (2) Asif Tufal, [2002] Mens Rea 2 - Contemporaneity Rule. Retrieved May 3,2006 from the lawteacher.net website: http://www.lawteacher.net/Criminal/Principles/Mens%20Rea%20Lecture%202.htm (3) All England Law Reports, [1958], Published by London: Butterworths. (4) 1 All England Law Reports, [1993], Published by London: Butterworths. (5) 1 All England Law Reports, [1989], Published by London: Butterworths. (6) 1 All England Law Reports, [1983], Published by London: Butterworths. (7) Appeal Cases Reports [1920], Published by the incorporated Council of Law Reporting for England and Wales. (8) Appeal Cases Reports [1985], Published by the incorporated Council of Law Reporting for England and Wales. (9) 2 All England Law Reports [1959], Published by London: Butterworths. (10) 3 All England Law Reports [1973], Published by London: Butterworths. (11) Criminal Damage Act, [1971] (12) 2 King's Bench Report [1910], Published by the incorporated Council of Law Reporting for England and Wales. (13) Offences Against The Persons Act, [1861] (14) Road Traffic Act, [1988] (15) Theft Act, [1968], [online source]. Retrieved May 3, 2006 from the swab.co.uk website: http://www.swarb.co.uk/acts/1968TheftAct.shtml (16) Wikipedia,[2006],Actus Reus [online source],Retrieved from the wikipedia free encyclopedia website: http://en.wikipedia.org/wiki/Actus_reus (17) Wikipedia, [2006], Mens Rea [online source], Retrieved May 3, 2006 from the wikipedia free encyclopedia website: http://en.wikipedia.org/wiki/Mens_rea (18) 74 Criminal Appeal Reports, [1981] Published by London: Butterworths. (19) Weekly Law Reports, [1954] and [1975] Published by Paliwala et al (20) Criminal Justice Act, [1988], Documentary evidence [online source]. Retrieved May 3, 2006 from the Google website: http://www.google.ca/searchhl=en&q=criminal+justice+act+1988&meta Read More