Cases - actus reus and mens rea - coincidence (contemporaniety)

AG's Ref (No. 4 of 1980) [1981] CA

[Coincidence of actus reus and mens rea]
D, in the course of a struggle pushed his girlfriend head first over the landing rail so that she landed on her head on the floor below. Believing her to be dead he then dragged her upstairs by a rope around her neck. Finally he cut her throat with a knife before cutting up the body in a bath and then disposing of it.

Held: It was impossible to establish whether V died in the original fall or whether he killed her by his subsequent actions.

A manslaughter conviction was possible, despite uncertainty as to the actual cause of death, but only if 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.

Guilty gross negligence manslaughter.

Church, R v (1965) CA

[Coincidence of actus reus and mens rea- actus reus can be continuing]
D took V (a married woman) to a van for sexual purposes. V mocked D and slapped him D knocked V unconscious. Unable to revive her he panicked and threw her into a river. V drowned.

Held: D's conduct amounted to a series of acts, which culminated in her death and thus constituted manslaughter.

Edmund Davies:

'an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.'

”A grosser case of criminal negligence it would be difficult to imagine.”

Guilty of manslaughter.

Fagan v Metropolitan Police Commissioner [1968] QBD

^[Assault - definition - apprehension of immediate force - contemporaneity of actus and mens - battery - inflicting unlawful personal violence - intentionally or recklessly – indirect force - coincidence of actus reus and mens rea - actus reus 'continuing act principle']
D assaulted PC Morris by parking his car on his foot. Initially he drove onto the officer’s foot accidentally. When first asked to remove the car he refused but eventually complied.

Held: Failure to act could not constitute an assault, but the actus reus was a continuing act and coincided at some point with the requisite mens rea.

An assault is any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence.

James:

"A mere omission to act cannot amount to an assault."
"For an assault to be committed both the elements of actus reds and mens rea must be present at the same time.'
'It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed upon an existing act."
"On the other hand, the subsequent inception of mens rea cannot convert an act which has been complete without mens rea into an assault."

Where an assault involved a battery, it matters not whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender. To constitute this offence, some intentional act must have been performed; a mere omission to act cannot amount to an assault.
If the act, as distinct from the results thereof, is a continuing act, there is a continuing threat to inflict unlawful force. If the assault involves a battery and that battery continues, there is a continuing act of assault.

Guilty

Comment: For an omission amounting to an assault see Santana-Bermudez, DP P v (2003) DC

Jakeman, R v (1982) CA

[Coincidence of actus reus and mens rea - actus reus committed by innocent agent]
D was importing two suitcases of cannabis from Ghana. She left the suitcases at Paris and the French authorities assumed it had been misrouted and forwarded it to England. She claimed to have repented during the flight backing this up by not claiming the suitcase; this did not amount to a defence.

Held: The mens rea existed at the start of the journey, the actus reus was completed, albeit by an innocent agent. The offence therefore contained the required elements.

Guilty

Kaitamaki v The Queen [1984] PC (New Zealand)

^[Coincidence of actus reus and mens rea - actus reus 'continuing act principle']
D broke into a young woman's flat and twice raped her. D claimed that the woman consented or he honestly believed that she was consenting. On the second occasion after he had penetrated her he became aware that she was not consenting but he did not desist from intercourse.

Held: Sexual intercourse starts on penetration and "continues" until it stops. If the act continues when consent is withdrawn the offence is complete. Since rape is defined as "having" intercourse without consent a man was guilty of rape within the section if he continued intercourse after he realised that the woman was no longer consenting.

Guilty

Le Brun, R v [1991] CA

[Coincidence of actus reus and mens rea - actus reus 'continuing act principle']
D knocked his wife unconscious. He dragged her away to avoid detection, whist dragging her she hit her head on the kerb fracturing her skull, and she died.

Held: The original unlawful act with its accompanying mens rea was not the direct cause of death, but the unlawful act and the act causing death were part of "the same sequence of events", and that was sufficient.

Guilty manslaughter

Masilela, S v (1968)

[Coincidence of actus reus and mens rea - actus reus 'continuing act principle']

"D intending to kill P, knocked him unconscious and, believing him to be dead, set fire to the house. P died from the fumes. If he had not been unconscious he would have been able to walk out, so knocking him unconscious was a cause of death. But it is probable that the chain of causation would be regarded as broken if the house had been set on fire by a tramp who happened to come along after D's departure."

From Smith & Hogan 10th ed p94.

Miller, R v [1983] HL

^[Coincidence of actus reus and mens rea - actus reus 'continuing act principle']
D a vagrant was sleeping in a building, and fell asleep on his mattress. When he woke up, he saw that his cigarette had caused the mattress to smoulder. Instead of calling for help, just moved into another room. The fire flared up and spread.

Held: He was convicted of arson, not for starting the fire but for failing to do anything about it.

Lord Diplock:

"...I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence. I venture to think that the habit of lawyers to talk of "actus reus," suggestive as it is of action rather than inaction, is responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English law."

Guilty of arson (criminal damage by fire)

Taaffe, R v (1984) HL

^[Coincidence of actus reus and mens rea - must have correct mens rea appropriate to the act]
D wrongly believing that importing currency was illegal sought to smuggle several packages from Holland. He had been enlisted by a third party to import cannabis. There was no such offence of importing currency and he could not be liable for attempting a crime that does not exist.

Held: For this offence D must be judged on the facts as he believed them to be. His mens rea for an non existent crime could not be imported to the smuggling of drugs.

D's mistake of law could not convert the importation of currency into a criminal offence: and importing currency is what D had assumed he was doing.

Not guilty
This has become know as the "Taaffe defence" much favoured by smugglers

Thabo Meli v R [1954] PC (South Africa)

[Contemporaneity of mens rea and actus reus applies to actions as a whole - coincidence of actus reus and mens rea - actus reus 'continuing act principle']
D and accomplices took V to a hut and beat him over the head intending to kill him. They rolled his body over a cliff to make the death appear accidental. In fact, the victim survived both the beating and the fall from the cliff, but died from exposure shortly afterwards.

Held: Actus and mens were present throughout; no need to separate them, there was a causal link. Where the actus reus consists of a series of linked acts, it is enough that the mens rea existed at some time during that series, even if not necessarily at the time of the particular act which caused the death.

Lord Reid:

"[It is] ... impossible to divide up what was really one series of acts in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan; and 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."

Guilty of murder