# Three Central Objectives - Preservation of morality; and - Prevention of harm; and - Preservation of social welfare. # Burden of proof The burden of proof refers to the duty placed on a party to prove certain facts. It has two different meanings: - The *legal burden of proof*; and - Refers to who bears the risk of losing the case if there is a failure to persuade the trier of fact that a proposition has been made out. - In criminal cases, the Prosecution bears the legal burden; unless. - The defence raises mental impairment or it relates to the DPCSA under s. 5, being drugs found on land/premises occupied by the person in charge (they have to satisfy the court on balance of probabilities) - The *evidential burden of proof*. - Duty to produce sufficient evidence to support a claim. - Prosecution bears evidential burden to prove elements of a crime. - In defences, the accused bears the burden. # The two elements ## Actus Reus **Actus Reus:** the literal 'wrongful act' or the *physical act* of a criminal offence. It might refer to: - A specified form of conduct such as: - An act; or - An omission; or - A state of affairs. - Conduct which occurs in specified circumstances; or - Results or consequences of conduct. There are a number of tests that can be utilised to determine whether an accused's conduct caused the requisite result or consequence to form actus reus. - the reasonable forseeability test (involves examining whether the consequences of the accused's conduct were reasonably foreseeable) - the substantial cause test (whether the acts of the accused are connect with the event to has a substantial causal effect) - the natural consequence test (applies when victims try to escape and are hurt or killed in the process of escaping by the accused) **Mens Rea**: The mental element of the crime. - Intention; or - Knowledge; or - Recklessness # Classification of offences The courts have recognised three classifications of offences: 1. An offence involving *mens rea* as an element; or 2. An offence of *strict liability* where mens rea doesn't need to be proven, but honest and reasonable mistake of fact can be raised as a defence; or 3. An offence of *absolute liability*, where mens rea does not need to be proven. In assessing this, there are four factors must be assessed regarding mens rea: 1. the language of the section creating the offence; and 2. the subject matter of the statute; and 3. the consequences for the community of an offence; and 4. the potential consequences for an accused, if convicted. # Lecture - Knowledge of actus reus is important for SCC, need to be able to point to exactly what accused did. - Third element is **defences** to that offence. - A person cannot be held criminally liable for an offence unless the actus reus is **voluntary**. - If accused is irresistible impulse; still a voluntary act. - e.g. accused is weak willed or acts under that impulse. - internal/external factor test helps in determining sane / insane automatism. - If mental impairment is raised, consider jurisdiction, as Magistrates' have no power to put medical intervention in place, County Court DOES. - **Egg Shell Skull Rule:** You take your victim as you find him. - E.g. against religion to accept blood transfusion as result of stab wound. Still found liable. - if you punch someone with an egg shell skull and they die, you're still liable. - Concurrence has to do with things like theft by finding. It is 'temporal concurrence' or 'temporal coincidence'. - Omissions are things like failing to protect a child from harm, allowing drunks onto licenced premises, omitting to act re: cruelty to animals. Failing to report on SORA as well. - Usually accomplished by **drawing inferences** frm the whole of he evidence; subjective test. - In contested hearing, we are always asking them to **draw inferences** from the evidence before them. - This is because to establish what the accused was thinking; e.g. **mens rea**, realistically an inference is going to be made. - This would be in the absence of admissions to the intention of the accused. - Re: **ICI** the law says that at the time of committing those acts their intention was to **cause that injury**. - Must apply the 'reasonable test', does a person in the accused's shoes, with the same type of intelligence as the accused, have believed that that injury would have been caused. - Shooting, stab wounds, biting, glassing, repeated stomping on the head are all good chances of the court drawing inferences in the intention to injure. - **Mens Rea - Transfered Malice:** Transferred intention. Accused is trying to hurt someone but accidentally hurts another person. - **Mens Rea - Recklessness**: Foresight by the accused of the probable consequence. - We *must* prove that the accused thought that the consequences would probably happen. - This is a subjective test. - Remember it must be from someone of equal reasonableness to the accused. E.g. if the accused is a rock climber and the offence is of similar background/nature, then the reasonable person is a rock climber of equal skill. - **Knowledge (Awareness)**: Some criminal offences require proof or knowledge of facts to prove mens rea. - Indictable assault police requires knowledge person was a police officer. - summary assault police does not. - Knowledge of the probable existence of something is the equivalent to *actual knowledge*. - Distinct difference between knowledge and belief. - Knowledge is accused has no doubt about a fact in issue. - Belief is a state of mind where the accused holds a fact to be true but is not entirely free. - Distinction between belief and suspicion: - Belief is trust or confidence of accepting a thing to be true. - Suspicion is a feeling or state of mind, an impression of the existence of presence. -