LAWS2708 - Elements of Criminal Responsibility

What are the three steps to establish criminal responsibility according to He Kaw Teh v The Queen (1985)?

1. Proof of voluntary occurrence of physical elements; 2. Proof of mental elements; 3. Absence of any defences

What is the meaning of the Latin maxim "actus non facit reum nisi mens sit rea"?

The act does not constitute guilt unless the mind is guilty (the main elements of crimes are twofold: harm and fault)

Under s 3.1(1) and s 3.2 of the Criminal Code (Cth), what must the prosecution establish?

An offence consists of physical elements and fault elements; prosecution must establish both to prove guilt

What does s 23 of the Criminal Code (Qld) address?

One of the greatest deficiencies of the Code; translated from Italian Penal Code; articulates minimum threshold for criminal liability in Qld regarding will or state of mind

What are the three parts of s 23 of the Criminal Code (Qld)?

s 23(1)(a): no criminal responsibility for acts/omissions occurring involuntarily; s 23(1)(b): no criminal responsibility for unforeseeable consequences; s 23(2): accused's intention is immaterial unless express element of offence; s 23(3): motive immaterial unless expressly declared

What is the principle of contemporaneity?

Act and intent must coincide - the physical act must be 'infused' with the state of mind (Meyers v The Queen (1997); Baker v The Queen [2010])

What did Thabo Meli v The Queen [1954] establish?

The principle of "criminal enterprise" - where the accused engages in a series of acts to achieve a particular objective according to a preconceived plan, contemporaneity is present even if mental element was missing at one stage

What did Fagan v Metropolitan Police Commissioner [1969] establish?

The principle of "continuing act" - if the mental element was present before the physical element was acted, the mental element could be superimposed upon the physical elements where the act is continuing

Under s 4.1 of the Criminal Code (Cth), what are the three types of physical elements?

1. Conduct (act/omission/state of being); 2. Result/event occurring from conduct; 3. Circumstances in which conduct/event takes place

What are the three categories of conduct as a physical element?

Act (doing something); Omission (not doing something); State of affairs (being something)

What are the types of duties that can give rise to criminal liability for omissions?

1. Duty based on personal relationship/guardianship; 2. Duty based on contractual or assumed responsibility; 3. Duty based on prior dangerous act or control over harm

What duties are imposed by ss 285 and 286 of the Criminal Code (Qld)?

s 285: duty of persons in charge of minors to provide necessaries of life; s 286: extends duty to provide necessaries for child under 16 regardless of lawful custody, including precautions to avoid danger

Under s 23(1)(a) of the Criminal Code (Qld), when is a person not criminally responsible?

For an act or omission that occurs independently of the exercise of the person's will (involuntary conduct)

What did R v Falconer (1990) state about the requirement of will?

"The requirement of a willed act imports merely a choice, consciously made, to do an act of the kind done" - substantially the same as common law requirement of voluntariness

What is the difference between s 23(1)(a) involuntariness and s 27 mental impairment?

s 23(1)(a): non-insane automatisms from external factors (prosecution bears burden, leads to acquittal); s 27: mental impairment/insanity (accused bears burden, leads to qualified acquittal under mental health legislation)

What does s 23(1)(b) of the Criminal Code (Qld) provide?

A person is not criminally responsible for consequences that are neither intended nor foreseen by the accused and are not foreseeable by an ordinary person (cannot be raised for criminal negligence)

What does s 23(1A) of the Criminal Code (Qld) provide?

If victim suffers death or grievous bodily harm only from their own weakness or unexpected defect, the result will not be exempted by s 23(1)(b)