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Generally, in a criminal case, the prosecution must establish a guilty intention, as well as a guilty act. Explain and illustrate these two elements of a crime.

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Introduction

Paper 1, June 1998, Question 9 Trina Soon Generally, in a criminal case, the prosecution must establish a guilty intention, as well as a guilty act. Explain and illustrate these two elements of a crime. (25m) A person cannot ordinarily be found guilty of a serious criminal offence unless two elements are present: the actus reus (guilty act) and the mens rea (guilty mind). A wrongful act on its own therefore cannot usually be criminal unless the wrongful state of mind required for that offence is present. Actus reus is the essential component of a crime that must be proved to secure a conviction, and includes any unlawful act or unlawful omission. Generally, one is not liable by omission, however there are several exceptions, when there is a failure to act under a duty to act. Duty to act can arise from a contract, as in R v. Pittwood, where a railway gatekeeper failed to uphold his duty to shut the gate, resulting in a person's death. ...read more.

Middle

For mens rea to be established, there must be intention, which must be distinguished from motive. In R v. Steane, the defendant was accused of "broadcasting with intent to assist the enemy." The courts held that he was not guilty, because his intent was not to assist the enemy but to save his family from concentration camps. Intention can be direct or oblique, and the two-staged test was developed in R v. Nedrick to determine intention. In Nedrick, the defendant poured paraffin through a letterbox and set it alight just to scare the occupants, but ended up killing two people. It was held that intent couldn't be inferred unless the defendant appreciated that the consequence was a virtual certainty. This principle also applies in R v. Woollin, where the defendant killed his child by throwing him on a hard surface. It was held that intention can only be found where the defendant foresaw the consequence as a virtually certain result of conduct. However, the reverse applies in R v. ...read more.

Conclusion

This is known as "Cunningham recklessness", where the test for recklessness is subjective and the defendant himself must have realized the risk, but nevertheless took it. In R v. Caldwell, an objective test based on standards of a reasonable man was ascertained. Here, the defendant set fire to a hotel, but claimed that he had been so drunk that he risk of endangering other had not crossed his mind. As such, Lord Diplock defined recklessness here as including recognizing a risk, but nevertheless taking and also failing to give any thought to whether there is a risk, when if thought given, it would be obvious there was. Actus reus and mens rea is an erroneous conception, which essentially has no significance in and of itself. Actus reus merely provides a shorthand way of referring to that part of crime concerned with the conduct prohibited by the law. Correspondingly, mens rea is the generic term which refers to the mental element of a crime and is far more elusive than actus reus. A crime is observable and provable through objective evidence, yet, many crimes have more than one mental element, and different types of mens rea may be applicable to different rudiments of the crime. ...read more.

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