QLD Must actus reus be fully proved before mens rea established ?

[AnthonyC]

My question relates to a couple of different (but related) situations, with the attending actus reus "physical or external elements" and mens rea "fault elements or mental elements".

Must a Court prove the existence of an actus reus (or Criminal Act) first? What if the actus reus is not placed anywhere in the stream of time with certainty? In other words, the actus reus is separated from, and stands alone from, any precise context indicating a mens rea (mental element)

Can such an allegation, if cut loose and drifting on its own, truthfully hold any weight in a Court of Law? If it is not an overt physical act, and not distinguishable from an act that could occur at any time due to misfortune or accident, how does the Court prove that the act is or was a Crime?

Secondly, what if the actus reus (or "denouement") of an allegation described by a Witness is repeatedly referred to by the same Witness as impossible to have been carried out? In other words, they claim they saw you attempt the act but repeatedly protest that it was not possible - effectively rendering it "inchoate". Could such "evidence" reasonably be used peripherally as tendency evidence to support the first proposition above?

If it would not stand on its own a Charge on its own for the purposes of Prosecution, is it fit to be used for the other purpose? How would the probative value of it measure up in relation to the prejudicial effect? (I would think its probative value should be nil?)

At what point does the balance swing between actus reus and mens rea? Could the suggestion of motive potentially overpower the evidence for the act itself, such that the act although unproven seems more concrete in the minds of a Judge or Jury? Do things sometimes go that way?

 

[Iamthelaw]

I don't particularly understand the bulk of your question. In response to your main and also somewhat odd question:

Must a Court prove the existence of an actus reus (or Criminal Act) first?

It's incorrect to say that a court 'must prove' anything. A court must be satisfied that the elements are proven to the requisite burden before it can convict. It is the prosecution who 'must prove' those elements, and they can structure their case more or less how they want. This may come down to the particular strategy the prosecution forms in such a way that they feel would be more compelling and convincing.

So, the answer is no, there is no ordering.

 

[AnthonyC]

So, the answer is no, there is no ordering.

Let me put it another way then. Is 'proving' the actus reus actually took place more of a priority?

If you could put a balance on it - actus reus vs mens rea, would you say 60 / 40 ?

Or could there be a case with significantly more suggestion of mens rea than proof of the other and that would swing the balance in favour of the Court ultimately deciding the act did take place?

 

[Rod]

Is 'proving' the actus reus actually took place more of a priority?

No. There is no priority and it is wrong to think in those terms. Both need to present to be found guilty, though while mens rea applies to most crimes there are some exceptions where mens rea is not needed to be proven.

And the measure of proof is beyond a reasonable doubt. The main aim of the defence in many cases is just to prove reasonable doubt exists.

What if the actus reus is not placed anywhere in the stream of time with certainty?

Then the prosecution may have a hard time proving actus reus by the defendant if the defendant has a solid alibi.

 

[Rob Legat - SBPL]

I'm no criminal lawyer, but from memory where and how intention is factored is dependent on the alleged crime committed. Some crimes do not have an actual mens rea component (i.e. crimes which occur through criminal negligence), such as manslaughter. Other crimes will largely devolve on the state of mind of the perpetrator - namely any 'intent to x' offences.

 

[AnthonyC]

Other crimes will largely devolve on the state of mind of the perpetrator - namely any 'intent to x' offences.

No. There is no priority and it is wrong to think in those terms. Both need to present to be found guilty, though while mens rea applies to most crimes there are some exceptions where mens rea is not needed to be proven.

In QLD, s23 of the Criminal Code states: "(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility."

I am trying to determine the basis for this irrelevance. Does this mean that 1. Once proven (by means of the mens rea and the actus reus), the mens rea is no longer considered part of the equation ? Or 2. The criminal responsibility would be the same for a given actus reus, regardless of mens rea, and therefore the mens rea has no bearing on the matter at all ?

How does the Prosecution go about proving the accused had a 'guilty mind' at the time of the actus reus being carried out ? I ask because, to my mind, anyone who's ever had a Brother and wanted to kill him on occasion surely doesn't want to kill him on every occasion. So therefore I would think the actus reus and the mens rea would be inextricably linked - in other words, they would have to be definitely placed together in the stream of time?

Is there thus a third 'strand' to proving any Crime - the physical element ("the act"), the mental element ("the guilty mind"), and the element of timing? How would this be defined in Law?

 

[Rob Legat - SBPL]

I think you're looking at it in a far too complicated manner. For a start, motive and intent are two completely separate things. Intent is whether I meant to do it - motive is my reason why.

To prove motive the prosecution will look at the accused 's actions, and whether they indicate the existence of intent. These can be actions before, during and after the event. For example, if a driver runs over someone the prosecution might look to see whether the driver could reasonably have stopped or swerved, and whether there is physical evidence of any attempt to do so. They might also note that there were signs the driver stopped afterwards, reversed, and ran over them again.

 

[Iamthelaw]

Let me put it another way then. Is 'proving' the actus reus actually took place more of a priority?

Not at all.

As Rod and Rob have pointed out, there are crimes where intention does not need to be proven (strict/absolute liability offences).

In QLD, s23 of the Criminal Code states: "(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility."

I am trying to determine the basis for this irrelevance. Does this mean that 1. Once proven (by means of the mens rea and the actus reus), the mens rea is no longer considered part of the equation ? Or 2. The criminal responsibility would be the same for a given actus reus, regardless of mens rea, and therefore the mens rea has no bearing on the matter at all ?

How does the Prosecution go about proving the accused had a 'guilty mind' at the time of the actus reus being carried out ? I ask because, to my mind, anyone who's ever had a Brother and wanted to kill him on occasion surely doesn't want to kill him on every occasion. So therefore I would think the actus reus and the mens rea would be inextricably linked - in other words, they would have to be definitely placed together in the stream of time?

I don't practice in Queensland.

However, I note that you're looking at one subsection out of the whole section, including the part that actually qualifies the operation of the section as being subject to negligent acts and omissions. The section seems to mainly address criminal responsibility and is divided into 2 components, voluntariness and accident. s23(1)(a) requires that the relevant act be voluntary (an example of an involuntary act would be a reflex reaction or spasm etc. Why is it expressly stated in the provision? My guess would be because there's a presumption that the relevant act is usually voluntary. s23(1)(b) is just the reasonable foreseeable test. s23(1A) seems to codify the eggshell skull rule in that defendants must take their victims as they find them; excluding the defence of accident etc. ss 3 sets out that there is scope to declare motive as relevant to the intention or act/omission to act. However for the purposes of the operating provision it is immaterial.

Regarding intention v motive. I mirror Rob's comments and add simply - Intention is a question of fact rather than law and is inferred based on the facts.

Is there thus a third 'strand' to proving any Crime - the physical element ("the act"), the mental element ("the guilty mind"), and the element of timing? How would this be defined in Law?

Short answer, (only because I don't plan on teaching substantive criminal law). Yes, temporal coincidence; the requisite mental element must be present when the acts occur.

 

[AnthonyC]

Regarding intention v motive. I mirror Rob's comments and add simply - Intention is a question of fact rather than law and is inferred based on the facts.

Short answer, (only because I don't plan on teaching substantive criminal law). Yes, temporal coincidence; the requisite mental element must be present when the acts occur.

Thank you for your detailed explanation on s23, it definitely helps.

I am having a great deal of trouble reconciling all this with what I observed in my own Court matter.

1. By juxtaposition of different allegations in the Court Brief, it was made to appear I had the necessary mental element - an unrelated allegation being placed in time 'the night before' when no such claim was ever made by anyone anywhere in the testimony. The significance of this is that this particular charge involved an act that could not be seen as criminal unless there was criminal intent.

(I realise this only had the desired effect of making it look like there was a Case and getting it out the front gate, but this attempt still has significance in light of the matters discussed. Particularly in relation to the requisite mental element being present when the acts occur).

2. There were two notable things about the actus reus for which I was eventually charged. First, it was only "tacked on" as an afterthought. The Complainant had already related the circumstances from start to finish more than once without so much as a mention of the actus reus. Only after prompting by the interviewer was the actus reus then raised - but at first in relation to a completely different circumstance. The Complainant quickly realised her 'error' and changed her story to say it happened during the other situation. The interviewer then repeats the whole saga with the inclusion of the actus reus, and says "Is that what happened?" to which the Complainant replied "Yeah". The Complainant suggested it happened as I was getting on my feet to stand up. There is no other substantial mention of the actus reus anywhere else in the testimony, apart from a very vague description of the Crime by the Complainant as "a sort of grabby feeling" (I think I can safely say the allegation was on the extreme low end of the scale). The actus reus being so ill-defined and the extremely vague and tenuous link to the supposed mens rea seems to me to break all the rules?

3. The one piece of supposedly corroborating evidence was something the Witness repeatedly said wasn't possible and can't be done. The Complainant states that she and her mother were also of this belief. However, when I stated the same thing the Prosecution put forward that "He can't possibly have known unless he attempted it" and then proceeded to use this to make a major prejudicial point with the Jury. So there you don't have an actus reus, you have an "attempt", and that supposed attempt is going to be used for maximum prejudicial effect despite its probative value being for all intents and purposes, nil.

Everyone tells me what "should" happen in a Court but the above is as plainly and distinctly as I can state the facts of the matter on a public forum. I probably would have had a good case on Appeal, if I'd been able to obtain one, but that's another story.

Any insights from anyone are most welcome. I just want to understand what happened. If the rules are what they are, and I was fairly convicted I will accept that.

 

[Rob Legat - SBPL]

There's little to no chance anyone would be able to give any insight without a full accounting of the facts and circumstances posed to the court.