"The general principle remains that a person is not guilty for omitting to do something." Discuss.

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                                                                                Ayesha

“The general principle remains that a person is not guilty for omitting to do something.”  Discuss.

The law will punish someone if they are under a duty to act but omit to do so.  It must be decided, however, whether in law you are dealing with an act or an omission.  There are three types of situations where this question comes up; continuing acts, supervening faults, and euthanasia.  

In continuing acts the concept was used in the Fagan case (1969), where the defendant drove over the policeman’s foot.  At the time,  the defendant did not have the mens rea for driving over the policeman’s foot, which therefore, was an omission and not an act.  He had the mens rea when he was on the foot and would not move.  It was held that driving on the policeman’s foot and staying there was a continuous act, followed by an omission, and during the continuous act the defendant had the mens rea, and was therefore liable.  Another example of a continuing act is in Kaitamaki (1985), where the defendant was charged with rape because at the time of penetration, he thought that the woman was consenting, yet he did not withdraw when he had realized that she was not consenting.

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A supervening fault is where a person who is aware that they have done something in order to endanger someone’s life or property, and does nothing to stop any harm occurring; the original act is treated as the actus reus of the crime.  It is when a defendant does not have the mens rea when the original act is committed but when they do not do anything to stop any harm being done that they have caused (to start an action and then just move on).  For instance in R V Miller (1983), the defendant was he creator of ...

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