LITIGATION ENVIRONMENT FOR
Conceptual Issues In Crime And Criminal Law
(Essential Elements Of Crime)
AP DR. ZAITON HAMIN
MOHD ROSHIDI BIN NOOR
IC. NO: 770221-03-5137
10 NOVEMBER 2012
Forensic accountants are litigation support / expert witness and financial investigations/ financial detectives who audit, investigate and ascertain the accuracy of financial reporting documents, often in connection with anticipated or ongoing legal action. Forensic accountants may be called upon to testify in court as expert witnesses in criminal and civil litigation and appear in pretrial depositions. Forensic accountants are expected to integrate their accounting, auditing and investigative skills when conducting investigation into financial crimes. Some basic understanding of the legal knowledge is also indispensable. In the light of these statements assess the following matters:
The essential legal elements involved in a financial crime and the effect of their presence or absence in such crime.
A person cannot usually be found guilty of a criminal offence unless two elements are present: an actus reus, Latin for guilty act; and mens rea, Latin for guilty mind. Both these terms actually refer to more than just moral guilt, and each has a very specific meaning, which varies according to the crime, but the important thing to remember is that to be guilty of an offence, an accused must not only have behaved in a particular way, but must also usually have had a particular mental attitude to that behavior. The exception to this rule is a small group of offences known as crimes of strict liability.
The definition of a particular crime, either in statute or under common law, will contain the required actus reus and mens rea for the offence. The prosecution has to prove both of these elements so that the magistrates or jury are satisfied beyond reasonable doubt of their existence. If this is not done, the person will be acquitted, as in English law all persons are presumed innocent until proven guilty – Woolmington v DPP (1935).
An actus reus can consist of more than just an act, it comprises all the elements of the offence other than the state of mind of the defendant. Depending on the offence, this may include the circumstances in which it was committed, and/or the consequences of what was done. For example, the crime of rape requires unlawful sexual intercourse by a man with a person without their consent. The lack of consent is a surrounding circumstance which exists independently of the accused’s act. The types of actus reus are as follows:
Act or Conduct – Must Be Voluntary
If the accused is to be found guilty of a crime, his or her behavior in committing the actus reus must have been voluntary. Behavior will usually only be considered involuntary where the accused was not in control of his or her own body (when the defense of insanity or automatism may be available) or where there is extremely strong pressure from someone else, such as a threat that the accused will be killed if he or she does not commit a particular offence (when the defense of duress may be available).
Omission – Must Be Voluntary
Criminal liability is rarely imposed for true omissions at common law, though there are situations where a non-lawyer would consider that there has been an omission but in law it will be treated as an act and liability will be imposed. There are also situations where the accused has a duty to act, and in these cases there may be liability for a true omission.
Act or omission
It must first be decided whether in law you are dealing with an act or an omission.
Mens rea is the Latin for ‘guilty mind’ and traditionally refers to the state of mind of the person committing the crime. The required mens rea varies depending on the offence, but there are two main states of...
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