The Anatomy of a Crime

I. Introduction
Crimes vary immensely in gravity, complexity, the kind of harm done, the state of mind required,
and the excuses which may be allowed. In order to ease the task of analysing and applying the
rules relating to any given crime, lawyers traditionally break the definition of the crime into two
parts, the physical which they call the actus reus (Latin for criminal act) and the mental aspect
which carries the corresponding Latin tag mens rea (criminal mind). This traditional usage is
hard-wearing but it is defective because it caters inadequately for a third element which has to
be described in negative terms as absence of a valid defence.

This can be illustrated by a set of simple examples based on murder. In each example a human
being has been killed and the named person is accused. Adam says, I killed him because he
would not hand over the money I demanded and I wanted the onlookers to realise I meant
business. Bill says, I wish I had killed her. She was blackmailing several people. But I did not
do it. It must have been one of the others. Charlotte says, I did kill him but I didnt mean to. I
didnt know anyone was standing behind the target. Doris says, I had to kill him, he was trying
to rape me and it was the only way I could stop him. Most people would have no difficulty,
assuming the parties are telling the truth, in holding that Adam is the only murderer. The various
reasons why the others are not guilty of murder provide us with a means of analysing the basis
for Adams guilt. Bill is not liable because he has not performed the physical act, eventhough he
may have had the state of mind of a murderer. Charlotte is not liable because, though she has
performed the physical act of killing, she has not done so with a sufficiently evil state of mind to
be called a murderer. Doris seems to have killed intentionally and so has performed. It is
physical act together with a murderous state of mind, but the law may excuse her because she
was acting to defend herself from the very serious offence of rape.

These diverse reasons for acquitting Bill, Charlotte and Doris point to an analysis of Adams
guilt. Adam is guilty because he performed the physical act of killing, he possessed the mental
state required of a murderer because he evidently intended to kill, and he could not point to any
excuse which the law would even remotely want to recognise. He is guilty because he
performed the physical act, he possessed the required state of mind and he had no valid
defence.

The rest of this chapter will build upon the three-fold structure just described. A more detailed
application of the analysis will appear in the chapters dealing with specific crimes.

II. The Physical Elements of a Crime (Actus Reus)
There are so many different kinds of crime that a single term like physical act, even if
conveniently obscured by its entombment in its Latin form actus reus, is apt to be misleading.
The physical element of most crimes however is likely to fall under one or more of the following
heads:
A. A physical act by the accused
B. A failure to act (an omission) by the accused
C. A status possessed by the accused person
D. A state of mind on the part of the alleged victim.
A. A physical act

This is the most obvious and often encountered physical element. It may take such forms as
shooting, stabbing, poisoning or touching people or animals or destroying, damaging or taking
property. Many other examples could be given but there is little more that need be said at this
stage. The only problem arises when the action has been performed involuntarily. Can it then be
said to be the act of the accused person? It is tempting to say that there is no act and so no
actus reus in such cases. This provides a means of acquittal where, as will usually be the case,
the defendant is not at fault. But this solution may lead to acquittal where the defendant is at
fault at an earlier stage. The theory that there is no actus reus where the defendant acts
involuntarily provides an excuse for the worthy and unworthy alike. If the involuntary act
is treated as an actus reus, the defendants liability can be assessed by reference to the mens
rea or the availability of a defence. In this way there can be proper discrimination between the
innocent and the blameworthy. This approach also provides a solution to cases where the
definition of the crime requires no act (or omission) but only a status or state of affairs.

B. A failure to act
Harm may occur because a suspect does not prevent it. If Eric stands by and watches a baby
drowning in a puddle of water, there is a sense in which we can say that Eric caused the babys
death, even though Eric has done nothing active to contribute to the tragedy. But the law does
not hold Eric guilty unless he has a duty of care towards the child. There is no general duty of
care. In other words, the fact that Eric has a moral duty to help the child as one human being to
another does not carry with it a legal duty to save the childs life. Something extra is needed to
convert the moral duty into a legal one. That duty can arise because of some special
relationship between the accused and the victim, because the accused has undertaken a duty
or because of some prior act by the accused which imposes on him or her a duty to rectify the
situation. So if Eric is the childs father or if he has agreed to look after the child he will be liable
if he fails to save the child. These rules will be considered in more detail in the section on
manslaughter by omission ,because it is largely in that context that this kind of problem has
arisen. The third type of duty has been imposed in the case of damage to property. In R v
Miller the accused fell asleep on a mattress in another persons house while holding a cigarette.
He woke to find the mattress alight but made no effort to put the fire out. The fire spread and
damaged the premises. The House of Lords held that he was guilty of recklessly damaging the
premises. His positive act of falling asleep with a lighted cigarette in his possession cast upon
him a duty to prevent further damage once he realised that the premises were in danger. The
same kind of reasoning could apply to causing personal injury. So if the accused innocently
injures the victim and fails to obtain help and the victim dies, the accused could be found guilty
of homicide.

Another way in which the law views omissions with greater indulgence than acts is that a
greater amount of fault may be required before a person is made guilty on the basis of an
omission as opposed to a corresponding positive act. Again the law of manslaughter by
omission, which will be considered later, provides a good example of this. Thirdly, a greater
range of defences seem to be available where harm is caused by an omission than is the case
with acts. This has come into prominence with the growing recognition of the right to refuse
medical treatment and will be examined in more detail under the discussion of euthanasia.

C. Status or state of affairs offences
Occasionally, a person is made liable not for what he or she does or omits to do but for what he
or she is or for the situation in which he or she is found. To make someone guilty of an offence
for possessing some permanent characteristic like colour or race would be the height of
oppression and is not part of Australian law. Status offences found in practice are likely to be
much more involved and are likely to imply some degree of fault somewhere along the line.
Even so, the fact that one is punished in part for what one is rather than what one does or fails
to do is capable of producing injustice, especially when the element of fault which lies behind
the prohibition is missing. The lack of an act or omission on which to pin liability may suggest
that liability can be attracted even where there is no blame attached to the conduct of
theaccused person.

The best known case on a status crime is R v Larsonneur. British immigration legislation made
it an offence for an alien to be found in England without a permit. Miss Larsonneur, a French
woman, was required to leave England. She did so and went to Ireland. She was arrested by
the Irish police and returned to England. She was charged with the offence and argued that
she was not guilty because she had been forced to return to England. The Court of Criminal
Appeal rejected this defence and held that she was guilty of the crime.

This case has been strenuously criticised on the ground that it punished a person who was in
no way at fault. The fact that the legislation punished a status rather than an act or omission
certainly seems to limit the options a sympathetic court might employ to soften the offence in
order to acquit the blameless. One option sometimes adopted is to argue that a person who is
physically forced to do an act is not really acting at all. That argument, which also runs into
difficulties in other aspects of the law, fails to work here because there is no act on which to pin
the argument.

The oppression which seems to be inherent in status offences can be avoided by the analysis
of criminal liability advocated in this chapter, and this can be reconciled with the decision in
Larsonneur once further facts are taken into account. If physical compulsion is seen not as
something which prevents the compelled action from being regarded as an act but as being a
defence in its own right, the fact that there is no positive act in the definition of the crime will not
automatically lead to guilt. But, as with certain other defences, it will only apply if the situation
has come about without fault on the part of the accused.

How does this square with the result in Larsonneur itself? The answer lies in taking account of
further facts which did not appear in the appeal courts judgment but appear from an earlier
stage of the case, the committal proceedings.

From these proceedings it appears that Miss Larsonneur was sent back to England under
arrest because she attempted to avoid the immigration laws by going through a bogus marriage
with an Englishman. By doing so she created the situation under which she was returned to
England by force. Had she returned to France and been kidnapped and taken back to England
by terrorists she would, on the analysis in this chapter, have been entitled to the defence of
physical compulsion.

D. The victims state of mind
Sometimes a persons guilt will depend on the state of mind of the alleged victim. A good
example is consent. Some actions are criminal when performed without anothers consent
butlawful when that consent is given. Rape is a crime which turns on the absence of the alleged
victims consent. Not all crimes turn on the consent of the victim. Consent is irrelevant for
instance in the case of positive acts of murder. In some cases consent may be seen as a
defence but in others it is treated as part of the physical part of the crime. Again rape is a good
example.

III. The Criminal State of Mind (Mens Rea)
With so many different kinds of crime, it is not surprising that a variety of words are employed to
describe the mental element required. The various words used are explained in part by what
was in fashion or thought to be appropriate when the crime was created or developed. Words
like wilful, malicious, wicked, wanton, fraudulent, appear in the definitions of crimes created in
past times while words currently or still in vogue include dishonestly, intentionally, recklessly
and negligently. In some cases the older terms are used interchangeably with the more recent
ones. This is the case of fraud and dishonesty. But in other cases there is a tendency for the
older, more emotion-laden terms to be replaced by or refined in terms of what is taken to be the
greater precision of the more modern ones. The best known example is malice aforethought
which in some States and countries is still the formal description of the mental state required for
murder. Courts which have this term to contend with generally replace it at least in part with
such terms as intention (England) or intention and recklessness (for example, South
Australia and Victoria). Apart from the notion of dishonesty, which relates to a limited though
important range of offences, and taking into account crimes where no mental state must be
proved, the most frequently encountered mental states can be arranged in descending order of
blameworthiness as follows:

A. Intention
B. Recklessness
C. Negligence
D. Absence of Fault

Though there are four different states of mind, there is some blurring at the edges and there are
some sub-categories. There are at least two kinds of intention, recklessness and negligence
and there is the possibility of some overlap between intention and recklessness and
recklessness and negligence. Nonetheless, there are more differences than similarities and
those differences are treated as significant in various parts of the criminal law. The neatest
example is the system of serious injury offences inspired by the work of theEnglish Criminal Law
Revision Committee and introduced by legislation in Victoria in 1986. Under this regime,
causing serious injury intentionally is punishable by up to 20 years imprisonment doing so
recklessly is punishable by up to 15 years and doing the same negligently by five years. Where
serious injury is caused without any of those fault elements, no punishment is provided for at all
by this piece of legislation. As the precise meaning of intention, recklessness and negligence
varies with the type of crime in which they appear, only a general description of those terms will
be given in this chapter. A more detailed discussion will be undertaken when the relevant crimes
are dealt with.