Criminal law: ‘mens rea’ and the guilty mind

by The FindLaw Team

It’s probably not too controversial of a statement to make; that the law is filled with many confusing terms and that’s not even including Latin – which also sometimes features in law. One Latin term that has a prominent role within criminal law is that of mens rea: which refers to the state of mind of a person committing an offence, whether it was expressed or implied. However, it is also essential to note that there must also be a criminal act that has been committed, and not just a mere thought. And for those fans of Latin, the maxim of cogitationis poenam nemo patitutr: ‘no one is to be punished for their thoughts’ is probably the most pertinent in this respect. However, the dictum that best encapsulates mens rea was stated by Brian CJ – and approved by Latham CJ in Greene v The Queen, who noted that: “The thought of man is not trialble, for the devil himself knows not the thought of man”.

How is ‘mens rea’ established?

Using the dictum of Brian CJ as our basis, in trying to ascertain the mental element of a person when committing an offence is impossible. Therefore, when trying to establish the elements of a guilty mind, will depend on the nature of the offence, and can also include, intention, foresight, knowledge or awareness. In Kural v The Queen, the High Court stated:

“Because the mental elements in different crimes vary widely it is impossible to make a statement which is universally valid for all purposes about the essential elements of a guilty mind. Depending upon the nature of the particular offence the requirement of a guilty mind may involve intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence. Where the offence charged is the commission of a proscribed act, a guilty mind exists when an intention on the part of the accused to do the proscribed act is shown. The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done.”

When is ‘mens rea’ presumed to be an element?

A presumption is often made when an accused has been charged with committing an offence is that they have possessed the requisite evil intent. However, the presumption can potentially be displaced either through statute law or by the subject-matter with which it deals, and both considerations must be made as pointed out by Wright J in Sherras v De Rutzen.

To provide further clarity in regards to mens rea, Jordan CJ in the case of R v Turnball in the NSW Criminal Court of Appeal, noted:

“[A]ssuming his mind to be sufficiently normal for him to be capable of criminal responsibility, it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing.”

However, it should be noted, that the mental element cannot be established by opinion or belief, and that the appropriate standard of proof when demonstrating mens rea is still imperative.

‘Mens rea’ and statute law

In R v Wampfler, the justices in the New South Wales Court of Criminal Appeal, used the judgment from the High Court in He Kaw Teh v The Queen as a basis, stated that for the purpose of considering criminal intent, statutory offences fall into the following categories:

• the obligation is on the prosecution to prove mens rea, which is the original obligation
• offences in which mens rea is presumed to be present, unless, and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal, then it is the responsibility of the prosecution of negativing such a belief beyond reasonable doubt
• the guilt of a person is established by the objective ingredients of the offence, and mens rea has no part in the committing of the offence.

If you are experiencing any difficulties with a criminal matter, it is vital that you seek the help of a lawyer who will be able to assist you with your issue.


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