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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]).
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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.
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Coincide, loosely interpreted |
However, the courts are sometimes prepared to hold that the must coincide
at some point in time,
Jakeman (1982)
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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.
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"Continuous Act principle" |
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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.
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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.”
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"Transaction principle" |
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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.”
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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.
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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.
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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.
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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. |
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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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