The Elements of Criminal Liability

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The Elements of Criminal Liability


"Actus non facit reum nisi mens sit rea", or "an act does not make a man guilty unless his mind be also guilty (Burgess, 2004, p.8)." In criminal law, for an individual to commit a crime, there must be present two elements. They are: •Actus Reus (meaning guilty act – or omission); and

•Mens Rea (meaning guilty mind).

Actus Reus is the guilty act or omission in the commissioning of a crime. In short, it is what the offender does or doesn't do which results in a crime taking place. Mens Rea is the guilty mind behind the crime. It is what tells the offender that what they are doing or not doing is wrong but they do it regardless. An act can be described as an action carried out by the offender in order to commit the crime. On the other hand, an omission is the opposite, where an offender neglects to take action to prevent a crime. To omit something is to leave it out, failure to act (Halsey, 1986, p. 704). For example: Watching someone have a heart attack and no attempting to render assistance or call an ambulance could be classified as an omission. The failure to render assistance or calling an ambulance resulted in the person's death.

These elements can also be described as a physical element and a fault element. The Commonwealth Criminal Code of Australia sets out that the physical elements of an offence must include an element of conduct involving the offender. Conduct may be an act, an omission, a state of affairs or some combination of those elements (AIJA Magistrates' Conference, July 2001, p. 6). The Code also defines five distinct fault elements: intention, knowledge, recklessness, dishonesty and negligence (AIJA Magistrates' Conference, July 2001, p. 6).

Majority of crimes require not only the proof of an action or omission having been perpetrated by the offender but a guilty mind must also be established before a person can be convicted. In other words, the prosecution must prove...
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