Crim Notes
Mens Rea
Lecture 3:
Mens Rea – The guilty mind.
Used to ascertain intention (not motive) to commit an offence.
AR and MR have to coincide and correspond (to the AR) (be present within the
same circumstance) for a crime to have been committed
Coincidence –
General Priinciple is as above however, there are cases of Continuing Acts:
Where the court has found that despite the Mens Rea and AR seeming to occur
separately because the MR was held at one point it can be applied to the
outcome AR.
Thabo Meli v R 1954
Ds planned to murder V. Got him drunk, hit him on the head and threw
him off of a cliff. But still alive when he was thrown. Died as a result of
rolling down the hill and being left there. They were convicted, but
appealed as the exposure had killed him rather than the initial act (blow)
which they had a MR for.
Held: The MR applie to the whole “series of acts” rather than just one AR
and Ds shouldn’t be able to escape the penalties of the law.
R v Fagan 1968
D accidentally drove on to officers foot. Officer told him this, he turned
off his ignition and shouted ‘Fuck You’. Convicted assault. Appealed
based on the unintentionality of the car arriving on the foot.
Held: Sufficient that there was a continuing act of assault during which D
had the relevant MR at some point.
Bridge J dissenting: Believed rather than being an act (like James J in the
majority believed) it was a question of omitting to drive off the foot once
notified. In that case the MR would have to apply to omission to stop
assaulting.
R v Le Brun
,Crim Notes
D punched wife in the jaw. While half-carrying her home she kept falling
down and hitting her head on the pavement. V died. Convicted of
manslaughter and appealed as actual harm happened when he wasn’t
intending to hurt V.
Held: May still have coinciding AR/MR if acts are part of the same series
of events.
o Distinguished Thabo as no preconceived plan to kill or cover up
murder.
o Continuous transaction principle dealt with lack of
contemporaneity of AR and MR.
o Issues of causation – if first act is contributory cause of death then
Ds actions afterwards would not be Novus Actus interveniens.
Correspondence:
The MR must correspond to every element of the AR. Mostly if crime is one of
intent.
Some crimes have an MR for a less serious AR. These are an exception to
principle above - Called Constructive Crimes.
Example: MR of murder is intention to kill or cause GBH. But the MR to
cause GBH (under s20 OAPA) is recklessness/intention but only to cause some
harm. Manslaughter is a constructive crime which only requires MR to an
original unlawful act, not death.
Subjective Mens Rea – What the court finds what D was actually thinking: R v
G 2003 (Two boys light a fire and leave it, it spread and causes 1mil worth of
damage) covered under recklessness.
Objective Mens Rea – What the Court finds the reasonable person would have
been aware of.
Types of MR:
Intention – Where D intends or foresees consequences as a virtual
certainty.
Recklessness – where D foresees consequences as a possibility
(consciously taking an unjustifiable risk)
,Crim Notes
Gross negligence – Court finds a serious breach of duty. (D ought to have
been aware. is this a legitimate type of MR?
Culpability (in order high-low): Intention, Recklessness, Gross negligence,
negligence, Strict Liability.
Intention
There a crimes of specific intent, which require prosecution to establish
intention (highest culpability) rather than recklessness for the AR:
Murder requires intention to cause death or GBH.
s 18 OAPA requires intention to cause GBH
Rape require intention to penetrate.
Moloney (Lord Bridge): Believed ‘Golden Rule’ in crimes of specific intent is
that a judge should make no attempt to explain intent but allow a ‘jury’s good
sense’ to decide if the necessary intent is present.
Intention has no statutory definition but developed through common law.
Direct vs Oblique intention:
Direct Intention – Desire for the AR is present. D has the Aim or purpose
to commit an offence.
Oblique intention – This is the foresight of consequence which is a
virtual certainty and can be further split into two.
The consequence is a Pre-requisite of the desired purpose.
(Speeding to get to work on time)
The consequence is one that is Virtually Certain of
achieving such a purpose.
Older Authorities for Oblique Intention:
Moloney 1985–
D killed his farther in a shooting contest (who could draw first).
Argued it wasn’t his intention to kill.
, Crim Notes
Held: If the jury believed that Death or serious Injury was a natural
consequence of the act, and that D was aware of it, they could
infer he had the intention.
Hancock and Shankland 1986 –
Stricking miners killed a driver by throwing concrete off a bridge.
Convicted at trial, judged directed jury to take Moloney (Lord
Bridge) into account. Appealed to HL.
HL held – Quash murder conviction in favour of manslaughter.
Argued Moloney should have included probability. are the
consequences a ‘natural and probable’. The higher the probability
the more likely intention was present.
The current Authorities on Oblique intention:
Nedrick and Woolin Crystalises the law on oblique intention.
Nedrick 1986 –
D pushed a lit material through a letter box killed two people. He
argued it was his intent merely to scare. In the trial judge directed
jury that if D realized that death was ‘highly likely’, then he was
guilty of murder. Appealed to Cofa
CA held: Appeal allowed the judge should not have made it clear
it was for the jury to infer intention. L Lane CJ: jury not entitled to
infer necessary intention unless there was a ‘Virtual Certainty’ of
the outcome.
Nedrick direction (test) – Subjective part (D’s foreseeability) and
objective part (reasonable foreseeability)
Woolin 1999 –
D lost his temper and three month old child. The child died. In the
trial the judge directed the jury on the basis of Nedrick Direction.
HL – Quashed the conviction on the basis that it was unsafe.
Commenting on trial judges equivocation of substantial risk and
virtual certainty. Affirmed Nedrick with the replacement of ‘infer’
with ‘to find’. Emphasised the decision is always for the jury and
these are just guidance to find intention.
Mens Rea
Lecture 3:
Mens Rea – The guilty mind.
Used to ascertain intention (not motive) to commit an offence.
AR and MR have to coincide and correspond (to the AR) (be present within the
same circumstance) for a crime to have been committed
Coincidence –
General Priinciple is as above however, there are cases of Continuing Acts:
Where the court has found that despite the Mens Rea and AR seeming to occur
separately because the MR was held at one point it can be applied to the
outcome AR.
Thabo Meli v R 1954
Ds planned to murder V. Got him drunk, hit him on the head and threw
him off of a cliff. But still alive when he was thrown. Died as a result of
rolling down the hill and being left there. They were convicted, but
appealed as the exposure had killed him rather than the initial act (blow)
which they had a MR for.
Held: The MR applie to the whole “series of acts” rather than just one AR
and Ds shouldn’t be able to escape the penalties of the law.
R v Fagan 1968
D accidentally drove on to officers foot. Officer told him this, he turned
off his ignition and shouted ‘Fuck You’. Convicted assault. Appealed
based on the unintentionality of the car arriving on the foot.
Held: Sufficient that there was a continuing act of assault during which D
had the relevant MR at some point.
Bridge J dissenting: Believed rather than being an act (like James J in the
majority believed) it was a question of omitting to drive off the foot once
notified. In that case the MR would have to apply to omission to stop
assaulting.
R v Le Brun
,Crim Notes
D punched wife in the jaw. While half-carrying her home she kept falling
down and hitting her head on the pavement. V died. Convicted of
manslaughter and appealed as actual harm happened when he wasn’t
intending to hurt V.
Held: May still have coinciding AR/MR if acts are part of the same series
of events.
o Distinguished Thabo as no preconceived plan to kill or cover up
murder.
o Continuous transaction principle dealt with lack of
contemporaneity of AR and MR.
o Issues of causation – if first act is contributory cause of death then
Ds actions afterwards would not be Novus Actus interveniens.
Correspondence:
The MR must correspond to every element of the AR. Mostly if crime is one of
intent.
Some crimes have an MR for a less serious AR. These are an exception to
principle above - Called Constructive Crimes.
Example: MR of murder is intention to kill or cause GBH. But the MR to
cause GBH (under s20 OAPA) is recklessness/intention but only to cause some
harm. Manslaughter is a constructive crime which only requires MR to an
original unlawful act, not death.
Subjective Mens Rea – What the court finds what D was actually thinking: R v
G 2003 (Two boys light a fire and leave it, it spread and causes 1mil worth of
damage) covered under recklessness.
Objective Mens Rea – What the Court finds the reasonable person would have
been aware of.
Types of MR:
Intention – Where D intends or foresees consequences as a virtual
certainty.
Recklessness – where D foresees consequences as a possibility
(consciously taking an unjustifiable risk)
,Crim Notes
Gross negligence – Court finds a serious breach of duty. (D ought to have
been aware. is this a legitimate type of MR?
Culpability (in order high-low): Intention, Recklessness, Gross negligence,
negligence, Strict Liability.
Intention
There a crimes of specific intent, which require prosecution to establish
intention (highest culpability) rather than recklessness for the AR:
Murder requires intention to cause death or GBH.
s 18 OAPA requires intention to cause GBH
Rape require intention to penetrate.
Moloney (Lord Bridge): Believed ‘Golden Rule’ in crimes of specific intent is
that a judge should make no attempt to explain intent but allow a ‘jury’s good
sense’ to decide if the necessary intent is present.
Intention has no statutory definition but developed through common law.
Direct vs Oblique intention:
Direct Intention – Desire for the AR is present. D has the Aim or purpose
to commit an offence.
Oblique intention – This is the foresight of consequence which is a
virtual certainty and can be further split into two.
The consequence is a Pre-requisite of the desired purpose.
(Speeding to get to work on time)
The consequence is one that is Virtually Certain of
achieving such a purpose.
Older Authorities for Oblique Intention:
Moloney 1985–
D killed his farther in a shooting contest (who could draw first).
Argued it wasn’t his intention to kill.
, Crim Notes
Held: If the jury believed that Death or serious Injury was a natural
consequence of the act, and that D was aware of it, they could
infer he had the intention.
Hancock and Shankland 1986 –
Stricking miners killed a driver by throwing concrete off a bridge.
Convicted at trial, judged directed jury to take Moloney (Lord
Bridge) into account. Appealed to HL.
HL held – Quash murder conviction in favour of manslaughter.
Argued Moloney should have included probability. are the
consequences a ‘natural and probable’. The higher the probability
the more likely intention was present.
The current Authorities on Oblique intention:
Nedrick and Woolin Crystalises the law on oblique intention.
Nedrick 1986 –
D pushed a lit material through a letter box killed two people. He
argued it was his intent merely to scare. In the trial judge directed
jury that if D realized that death was ‘highly likely’, then he was
guilty of murder. Appealed to Cofa
CA held: Appeal allowed the judge should not have made it clear
it was for the jury to infer intention. L Lane CJ: jury not entitled to
infer necessary intention unless there was a ‘Virtual Certainty’ of
the outcome.
Nedrick direction (test) – Subjective part (D’s foreseeability) and
objective part (reasonable foreseeability)
Woolin 1999 –
D lost his temper and three month old child. The child died. In the
trial the judge directed the jury on the basis of Nedrick Direction.
HL – Quashed the conviction on the basis that it was unsafe.
Commenting on trial judges equivocation of substantial risk and
virtual certainty. Affirmed Nedrick with the replacement of ‘infer’
with ‘to find’. Emphasised the decision is always for the jury and
these are just guidance to find intention.
