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Principles - actus reus and mens rea - coincidence

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Actus reus can be a continuing act.

Actus reus may consist of an ongoing course of conduct, and not just one that occurs at one instant in time.

The actus
reus of assault can continue during a long fight. 

 

The actus reus of rape, for example, extends from the moment of initial non-consensual penetration to the moment of withdrawal.

 

If D becomes aware of the absence of consent, he may commit rape by not withdrawing immediately Kaitamaki v The Queen [1985]).

 

Contemporaneity of actus Reus and mens Rea

The general rule is that, to be guilty of a criminal offence requiring mens rea, an accused must possess that mens rea when performing the act or omission in question, and it must relate to that particular act or omission.

 

Coincide, loosely interpreted

However, the courts are sometimes prepared to hold that the must coincide at some point in time, Jakeman (1982)

 

Worked example:

D is planning to poison her husband tomorrow, but kills him in an accident today.  This does not make her guilty of murder.  She may even have been thinking about the planned murder at the time of the accident.  Her delight at her husband's death is also irrelevant.

 

"Continuous Act principle"

It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed on an existing act.

On the other hand, the subsequent inception of mens rea cannot convert an act that has been completed without mens rea into an assault.

 

Miller [1983] concerned the statutory offence of Criminal Damage, where a tramp allowed a house to burn after his cigarette had set fire to a mattress.

 

The House of Lords extended the principle in Fagan, the difference being the use of the word "responsibility" to act. The whole course of conduct of the accused was a continuous act and if at any stage he had the state of mind required by the statute he was guilty.

 

Fagan v Metropolitan Police Commissioner [1969] an example of the ‘continuous act’ principle.

F was directed by a PC to park his vehicle by the kerb, but parked it on the PC's foot.

He did not do so deliberately, but he deliberately left it there after the officer told him told him to remove it from his foot.

There was on ongoing act, which became an assault once F became aware of it.

James J said:

“It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed on an existing act. On the other hand, the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault.” 

"Transaction principle"

Different actions can be treated as a single, extend or continuous 'course of conduct'.

It appears to be necessary that the "continuing act" occurs when D is engaged in some kind of wrongdoing e.g. moving the victim of assault, hiding the body or covering up the crime in some way; not if he is trying to assist the victim.

 

It will then be sufficient if the accused possessed the requisite mens rea at any point during that course of conduct.

 

If D attempts to murder V by beating him to death, and believes that he has done so, but actually kills V by throwing what he assumes to be his corpse over a cliff, D will still be guilty of murder.

Lord Reid in Thabo Meli v The Queen [1954] said;

“…it is much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before, in fact, it was achieved, therefore they are to escape the penalties of the law.”

Same principle applies even if the actions are not pre-planned.

There was no plan in R v Church [1966] D thought he had killed V, so he threw her into the river Ouse, where she drowned. Edmund Davies J said:

'. . . if a killing by the first act would have been manslaughter, a later destruction of the supposed corpse should also be manslaughter'.

Church was followed and extended in Le Brun [1992], D knocked his wife unconscious and tried to drag her into their house. Her head struck the pavement killing her.

In Church
the fatal impact was accidental, but the disposal of the 'body' was deliberate.

 

Le Brun’s killing was an accident  Nevertheless he was guilty of manslaughter there was a continuous course of unlawful conduct.

Le Brun was either trying to cover up the assault or force his wife into the house (which was why they were arguing), but not to help her.

 

If Le Brun had been trying to aid or assist his wife when he attempted to move her, this would have broken the essential nexus between the two halves of the incident.

The two halves of the incident were connected.

 

A similar example cited by Smith & Hogan is a South African case,  Masilela, S v (1968), where V burnt to death after being knocked unconscious by D.

 

Continuing for how long?

It seems that the continuing act will continue for as long as the defendant is about the business of committing or covering up the crime.

 

The mens rea and actus reus can be quite separate in time and geography

In Jakeman (1982) an importation of cannabis offence the mens rea occurred in Ghana, the actus reus was by the innocent agency of Paris air officials who forwarded suitcases.

 

He will not be excused merely because he abandons it before that actus reus is complete.

After inflicting a fatal injury on V with murderous intent, D may repent of his actions and may even do his utmost to save V's life; but if V dies he will be guilty of murder.

 

Mens rea must be for appropriate offence.

In Taaffe, R v (1984) HL D had the mens rea for importing currency, and not for the importing cannabis, which was in his possession.

A further difficulty arose in Attorney General's Ref (No. 4 of 1980) [1981]

In the course of a struggle, D pushed his girlfriend V over a landing rail onto the floor below and then, believing her dead, cut her throat and dismembered her in the bath so as to dispose of her body.

 

It was impossible to establish whether V died in the original fall or whether he killed her (as in Church) by his subsequent actions.

 

Despite uncertainty as to the actual cause of death, he was guilty of manslaughter, only because it could be proved that each of D's acts was performed with the requisite mens rea for that offence.

 

Since the initial fall may well have killed V, it would not suffice to establish mens rea (such as gross negligence) only in the subsequent act of disposal: the prosecution also had to disprove D's claim that he had merely pushed her away in a 'reflex action' when she dug her nails into him in the struggle on the upstairs landing.

 

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