‘‘Mens Rea’’

(Assignment of Jurisprudence)

Submitted by:
Abdullah Mahboob
Reg. # 4101/FSL/LLB/F14-A
Program# B.A LLB (Hons) Shariah &Law
(Comparative study of British and Islamic Law)

Submitted To:
Sir Najeebullah khan
Faculty of Shariah & Law
International Islamic University Islamabad
 Contents
1. Introduction

1.1 Definition of Mens Rea

1.2 The meaning of Mens Rea

1.3 Mens Rea standers

2 Important forms of Mens Rea
2.1 Intention
2.1.1 Specific intent and general intent: (United States)
2.1.2 Transferred intent or Transferred Malice
2.1.3 Motive and intention Distinguished—Motive does not affect liability

2.1.4 Where motive is relevant

2.1.5 Cases on Intention
2.1.5.1 Hyam v DPP [1975] AC 55
2.1.5.2 R v Hancock and Shankland [1986] 2 WLR 257
2.1.5.3 R v Nedrick (1986) 83 Cr App 267
2.2 Recklessness

2.2.1 Recklessness as an Interpretation of Malice

2.2.2 Inadvertent Recklessness
2.2.3 Cases on Recklessness:
2.2.3.1 R v Cunningham [1957] 2 QB 396.
2.2.3.2 MPC v Caldwell [1982] AC 341.
2.2.3.3 Elliot v C [1983] 1 WLR 939.
2.2.3.4 Chief Constable of Avon and Somerset v Shimmen (1987) 84 Cr App R 7.

2.3 Negligence

2.3.1 Elements of negligence claims

2.3.2 Presence of a Duty of Care
2.3.3 Someone Breached Their Duty
2.3.4 The Breach Directly Causes Injuries
2.3.5 Proving Monetary Losses
2.3.6 Case example showing the four elements negligence
2.3.7 The four elements of negligence in this scenario
2.3.8 Punitive Damages for Gross Negligence in a Personal Injury Case:

3 Damages in General
3.1 What are Punitive Damages?
3.2 Rationale for Punitive Damages
3.3 Limitations on Punitive Damages

4 Basic mens-rea
5 Mens Rea as to Circumstances

6 Mens Rea in Terrorism Offences

7 Mens Rea for attempt

7.1 Impossible Attempts

8 Interpreting Statutory Criminal Offences

8.1 The Significance of He Kaw The

9 Exceptions of Mens-Rea
1. Introduction:
Mens rea means 'guilty mind'. It refers to the intent of the accused to do the criminal
act and cause the criminal consequences. The determination of mens rea can be done either
subjectively (which usually means a narrow approach) or objectively (which usually entails a
broader approach):

▪ Subjective mens rea - an investigation into the actual state of mind of the
accused person at the time they were committing the alleged offence.

▪ The most difficult to prove, and the highest form of mens rea.
▪ It is the strongest onus for the prosecution.
▪ Most mens rea standards are subjective.
▪ Objective mens rea - what would a reasonable person in their position have been
thinking at the time of committing the act.

▪ That is, a reasonable person when hypothetically confronted with the situation in
which the accused found themselves
▪ A more expansive approach.
1.1 Definition of Mens-Rea:
Mens-rea means “An intention to do a forbidden act.”

According to Samshul Huda, an eminent jurist, “The very corner-stone of criminal

jurisprudence is the Mens-rea.”

It is expressed in Latin Maxim “actus non facit reum nisi mens sit rea” as a fundamental
principle for penal liability.

The Maxim means “the act itself does not constitute guilt unless done with a guilty mind”

Lord Diplok said,

“An act does not make guilty of a crime, unless his mind be also guilty.”

The term “Mens-rea” is not defined in the Indian Penal code. It is defined as the mental
element necessary to constitute criminal liability.

1.2 The meaning of Mens Rea:

A person to be held guilty of a crime, it is necessary that he had an intention to do it.
Similarly, a person to be held guilty of theft, it should be established that he had an intention
to steal. No act of the person was punishable in the absence of mens-rea.

Mens rea is a technical term, and its translation as a “guilty mind” is considered misleading.
Technically, the possible mental attitudes a man may have with respect to the actus reus of a
crime are: intention; recklessness; negligence; and blameless inadvertence. We shall examine
these terms briefly.

1.3 Mens Rea Standards:

For different crimes, different levels of mens rea is needed (ie, recklessness is
sufficient mens rea for murder, but negligence is sufficient only for manslaughter). The mens
rea standards can be seen as a spectrum ranging from the hardest to prove to the easiest to
prove:

1. Intent. This standard requires that the accused actually intended to do

the actus reus. It is the highest standard of mens rea, and is determined
completely subjectively (inquiry into the mind of the accused).
2. Knowledge/recklessness. This standard requires that the accused
was aware that there are possible (or even probable) harmful consequences of
the action, and yet proceeded anyway. It is determined using a subjective test,
but not as narrow as the one of intent, being a lower standard of mens rea.
3. Negligence. This standard requires that a reasonable and ordinary
person would have known or foreseen that harm was likely to follow from the
actus reus, and proceeded anyway. It is determined using an objective test,
and is a much lower standard of mens rea.

▪ This means that for some offences, an accused can be seen as having mens rea
simply for behaviour falling so short of what a reasonable person would have
done in the same situation.
4. Strict liability. This standard has no requirement of mens rea. However, the
defence of honest and reasonable mistake of fact (HRMF) is available to the
accused (this is discussed more in detail in Strict and Absolute Liability).

▪ Prosecution proves actus reus.

▪ Defence claims/and supports the claim that there was a genuine mistake, and that
it was acceptable according to the objective standard of the reasonable person (a
reasonable person could have made that mistake).
▪ The prosecution must then negative this defence to convict.
5. Absolute liability. This standard has no requirement of mens rea and no
defence of HRMF. The prosecution must merely prove the actus reus in order
to convict the accused. This is the lowest standard of mens rea.

▪ For example, driving with a proscribed level of alcohol.

2. Important forms of Mens-Rea:
Mental States
• Intention
• Recklessness
• Negligence
• Blameless Inadvertence
2.1 Intention (Fore Knowledge + Desire)
Intention means the purpose or desire with which an act is done. To intent is to have
in mind a fixed purpose to produce a particular result. Intentions are two types.

Direct intent (Purpose intent) – It is the typical situation where the consequences of a
person’s actions are desired.

Basic means direct intention – no lesser forms of punishment.

Oblique intent (Foresight intent) – It covers the situation where the consequence is
foreseen by the defendant as virtually certain, although it is not desired for its own sake, and
the defendant goes ahead with his actions anyway.

Specific means a parson can foresee that there is damage – can be decrease punishment.

2.1.1 Specific intent and general intent: United States.

As pointed out the terms specific intent and general intent, it appears, are used in a
slightly different sense as compared to the meaning given to these terms in England. The use
is summarized below.

1. Specific intent crime. If the definition of a crime requires not only the doing of
an act, but the doing of it with a specific intent or objective, the crime is a “specific
intent” crime. It is necessary to identify specific intent for two reasons.

1) Need for Proof. The existence of a specific intent cannot be inferred

from the doing of the act. The prosecution must produce evidence tending
to prove the existence of the specific intent.
2) Applicability of Certain Defence. Some defences, such as voluntary
intoxication and unreasonable mistake of fact, apply only to specific intent
crimes.
3) Enumeration of Specific Intent crimes. The major specific intent
crimes and they require in the United States are as follow:
a) Solicitation (instigation): The intent to have the person solicited commit
the crime;
b) Attempt: The intent to complete the crime;
c) Conspiracy: The intent to have the crime completed;
 d) Premeditation: First degree premeditation murder (where so defined by
statute);
e) Assault: intent to commit a battery;
f) Larceny and robbery: The intent to permanently deprive the other of his
interest in the property taken;
g) Burglary: intent to commit a felony in the dwelling;
h) Forgery: intent to defraud;
i) False pretences: intent to defraud and;
j) Embezzlement: intent to defraud.
1. General Intent: Generally, all crimes require “general intent” which is an
awareness of all factors constituting the crime; i.e., defendant must be aware that
he is acting in the proscribed way and that any attendant circumstances required
by the crime are likely to be present. Thus, to commit the crime of false
imprisonment, D must be aware that he is confining a person, and he is
confinement has not been specifically authorised by law or validly consented to
by the person confined.
2.1.2 Transferred intent or Transferred Malice:
If a defendant intended a harmful result to a particular person or object and, in trying to carry
out that intent, caused a similar harmful result to another person or object, his intent will be
transferred from the intended person to the one actually harmed. Any defence or mitigating
circumstances that the defendant could have asserted against the intended victim (e.g., self-defence,
provocation) will also be transferred in most cases. The doctrine of transferred intent most commonly
applies to homicide, battery, and reason. It does not apply to attempt.

A shoots at B, intending to kill him Because of bad aim, he hits C, killing him. Is a guilty
of C`s murder? Yes. His intent to kill B transferred to C. note that A may also be guilty of the
attempted murder of B.

A shoots at B, intending to kill him He hits C, only wounding him. While A may be
guilty of attempted murder of B, is he also guilty of attempted murder of C? No. Transferred
intent does not apply to attempt.

In Islamic law, the Hanbali school of acknowledges transferred malice, but the majority of
the schools are reluctant to do so.

2.1.3 Motive and intention Distinguished—Motive does not affect

liability:
The motive for a crime is distinct from the intent to commit it. A motive is the reason
or explanation underlying the offence. It is generally held that motive is immaterial to
substantive criminal law. A good motive will not excuse a criminal act. On the other hand, a
lawful act done with bad motive will not be punished.

An impoverished woman steals so that her hungry children may eat. Despite her motive--
feeding her children—the women could be held criminally liable for her acts because her
intent was to steal. (Note: Hadd cannot be applied in this case.)
 Sometimes, when we speak of motive, we mean an emotion such as jealousy or greed, and
sometimes we mean a specific of intention.

D intendeds (a) to put poison in his uncle’s tea, (b) to cause his uncle’s death and (c) to
inherit his money. We would normally say that (c) is his motive, which is also intended if we
look at the “desired consequences” test. The person why it is considered merely a motive is
that it is a consequence ulterior to the mens rea and actus reus.

2.1.4 Where motive is relevant:

In some exceptional cases motive is relevant.

1. In a prosecution for libel, if the civil law defences of fair comment or qualified
privilege re available at all, thy may be defeated by proof of motive in the sense of
spit or ill-will.
2. As evidence, motive is always relevant. Thus, if the prosecution can prove that D
have a motive for committing the crime, they may do so sense the existence of a
motive makes it more likely that D in fact did commit it. Men do not always act
without a motive.
3. Motive is important again when the question of punishment is in issue. When the
law allows the judge discretion in sentencing, he will obviously be more leniently
disposed towards the convicted person who acted with a good motive. In other cases,
it may help in the commutation of a sentence.
2.1.5 Cases on Intention:

2.1.5.1 Hyam v DPP [1975] AC 55.

The defendant, in order to frighten Mrs Booth, her rival for the affections of Mr X,
put burning newspaper through the letterbox of Booth's house and caused the death of two of
her children. She claimed that she had not meant to kill but had foreseen death or grievous
bodily harm as a highly probable result of her actions. Ackner J directed the jury that the
defendant was guilty if she knew that it was highly probable that her act would cause at least
serious bodily harm.

Although Lord Hailsham LC stated that he did not think that foresight of a high degree of
probability is at all the same thing as intention, and it is not foresight but intention which
constitiutes the mental element in murder, the House of Lords (by a 3-2 majority), held that
foresight on the part of the defendant that his actions were likely, or highly likely, to cause
death or grievous bodily harm was sufficient mens rea for murder.

2.1.5.2 R v Hancock and Shankland [1986] 2 WLR 257.

The defendants were striking miners who threw a concrete block from a bridge onto
the motorway below. It struck a taxi that was carrying a working miner and killed the driver.
The defendants argued that they only intended to block the road but not to kill or cause
grievous bodily harm. The trial judge directed the jury on the basis of Lord Bridge's
statements in Moloney (ie, was death or grievous bodily harm a natural consequence of what
was done, and did the defendants foresee that consequence as a natural consequence?) and
the defendants were convicted of murder.
On appeal a verdict of manslaughter was substituted by the House of Lords who reaffirmed
that the prosecution has to establish an intention to kill or do grievous bodily harm on the part
of the defendant. Lord Scarman felt that the Moloney guidelines on the relationship between
foresight and intention were unsatisfactory as they were likely to mislead a jury. Lord
Scarman expressed the view that intention was not to be equated with foresight of
consequences, but that intention could be established if there was evidence of foresight. The
jury should therefore consider whether the defendant foresaw a consequence. It should be
explained to the jury that the greater the probability of a consequence occurring, the more
likely that it was foreseen, and the more likely that it was foreseen, the more likely it is that it
was intended. In short, foresight was to be regarded as evidence of intention, not as an
alternative form of it.

2.1.5.3 R v Nedrick (1986) 83 Cr App 267.

A child had burned to death in a house where the defendant had, without warning, put
a petrol bomb through the letter box. He admitted to starting the fire but stated that he only
wanted to frighten the owner of the house. The Court of Appeal overturned the murder
conviction and substituted a verdict of manslaughter as the judge had misdirected the jury.

Lord Lane CJ provided a model direction for a jury about intent in a murder case where the
defendant did a manifestly dangerous act and someone died as a result. Lord Lane CJ
suggested that when determining whether the defendant had the necessary intent, it might be
helpful for a jury to ask themselves two questions: (1) How probable was the consequence
which resulted from the defendant's voluntary act? (2) Did he foresee that consequence?

• If he did not appreciate that death or serious bodily harm was likely to result from his
act, he cannot have intended to bring it about.
• If he did, but thought that the risk to which he was exposing the person killed was
only slight, then it might be easy for the jury to conclude that he did not intend to
bring about the result.
• On the other hand, if the jury were satisfied that at the material time the defendant
recognised that death or serious bodily harm would be virtually certain (barring some
unforeseen intervention) to result from his voluntary act, then that is a fact from
which they may find it easy to infer that he intended to kill or do serious bodily harm,
even though he may not have had any desire to achieve that result.

2.2 Recklessness:
Recklessness occurs when the actor does not desire the consequences, but foresees the
possibility and consciously takes the risk. It is classed with intention for all legal purposes.
2.2.1 Recklessness as an Interpretation of Malice:
Over time it seems that “reckless” became used as an interpretation of “malice” which
had been a mens rea requirement of several statutory offences. Many of these offences
survive today, such as malicious wounding under the Offences against the Person Act 1861,
but others, such as offences under the Malicious Damage Act 1861, have since been replaced.
This development commenced in the last quarter of the nineteenth century, in cases such as
Pembliton, and Welch and by the case of Martin Smith states that “recklessness”
was “increasingly assuming a meaning of conscious risk taking”. The judges using the term
seem not to have considered the need for a clear definition of it; such definition did not
appear until the beginning of the twentieth century and has been accredited to Professor
Kenny. Kenny’s definition of malice, which originally appeared in 1902 but continued to be
referred to in later editions of his book edited by Turner, was that: In any statutory definition
of a crime, malice must be taken not in the old vague sense of wickedness in general but as
requiring either (1) An actual intention to do the particular kind of harm that in fact was done;
or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen
that the particular kind of harm might be done and yet has gone on to take the risk of it).
Kenny’s explanation of the meaning of recklessness in the context of crimes requiring malice
was officially endorsed in the Court of Appeal’s judgment in Cunningham, a case of
maliciously administering a noxious thing, and was also adopted in relation to malicious
wounding and assault. For some time the law seems to have worked fairly satisfactorily,
using the Cunningham test of recklessness in relation to offences requiring malice, such as
non-fatal offences against the person and offences punishing damage to property. In relation
to the latter offence it was thought necessary to modernise the law and so the Criminal
Damage Act 1971 amended the statutory requirement of “malicious” criminal damage to a
requirement of “recklessness”.

2.2.2 Inadvertent Recklessness:

Inadvertent recklessness is a term used to describe a state of mind where the accused
acted in a way which creates an obvious risk, and without giving any thought to that risk. In
other words.

▪ In the case of obvious risks, the failure to even consider that the behavior may
have harmful outcomes is sufficient for criminal behavior.

▪ Obvious risks are risks that would be obvious to a reasonable person.

▪ It is distinguished from normal recklessness in that the accused gave no thought to
the to the risk, whereas in normal recklessness, the accused considered the risk
and then acted regardless.
▪ Inadvertent recklessness is a blurring of this subjective mens rea requirement
(used for recklessness) and an objective ‘reasonable person’ test (used for
negligence).

2.2.3 Cases on Recklessness:

2.2.3.1 R v Cunningham [1957] 2 QB 396.

The defendant had broken a gas meter to steal the money in it with the result that gas
escaped into the next-door house. The victim became ill and her life was endangered. The
defendant was charged under s23 of the Offences against the Person Act 1861 with
"maliciously administering a noxious thing so as to endanger life". The Court of Appeal,
allowing the defendant's appeal held that for a defendant to have acted "maliciously" there
had to be proof that he intended to cause the harm in question, or had been reckless as to
whether such harm would be caused. In this context recklessness involved the defendant in
being aware of the risk that his actions might cause the prohibited consequence.

2.2.3.2 MPC v Caldwell [1982] AC 341.

The defendant, who had been sacked from his employment at an hotel, became drunk
and returned at night to the hotel, setting it on fire. There were ten people resident in the hotel
at the time, but the fire was discovered and extinguished before any serious harm could be
caused. The defendant pleaded guilty to criminal damage but pleaded not guilty to the more
serious charge of criminal damage with intent to endanger life or recklessness as to whether
life would be endangered. he argued that due to his drunken state it had never crossed his
mind that lives might be endangered by his actions, he had simply set fire to the hotel because
of his grudge against his former employer.

The House of Lords re-affirmed Cunningham as a form of recklessness in criminal law, but
introduced an alternative form of recklessness based upon the defendant's failure to advert to
a risk which would have been obvious to the reasonable person. Lord Diplock held that a
defendant was reckless as to whether he damaged property if he created a risk of damage
which would have been obvious to the reasonable man and either -

* had not given any thought to the possibility of such a risk when he carried out the act in
question, or

* had recognised that there was some risk involved and nonetheless went on to carry it out.

2.2.3.3 Elliot v C [1983] 1 WLR 939.

The defendant, an educationally subnormal 14-year-old schoolgirl, had entered a

neighbour's garden shed, poured white spirit on the floor and ignited it. The defendant then
fled as the shed burst into flames. The magistrates dismissed the charge of criminal damage
on the basis that she gave no thought to the risk of damage, and that even if she had, she
would not have been capable of appreciating it. The prosecution appealed and the Divisional
Court, allowing the appeal, held that this was irrelevant to the issue of recklessness. When the
court in Caldwell had talked about an "obvious" risk, they had meant obvious to the
reasonable man if he had thought about it, and not obvious to the defendant if he had thought
about it.

2.2.3.4 Chief Constable of Avon and Somerset v Shimmen (1987) 84 Cr App R 7.

The defendant was a martial arts expert who was demonstrating his skill to friends by
performing a move which he anticipated would bring his foot within inches of a shop
window. He had miscalculated the risk, and he broke the window. The argument that he was
not reckless because he had given thought to the risk but mistakenly believed that he had
minimised it, was rejected by the Divisional Court because he knew there was some risk. The
defendant was found guilty of causing criminal damage.
2.3 Negligence
Negligence is not taking care, where there is a duty to take care. Negligence or
carelessness indicates a state of mind, viz., absence of a desire to cause a particular
consequence. In criminal law the negligent conduct amounts to mens-rea.

According to Jay M. Feinman of the Rutgers University School of Law:

"The core idea of negligence is that people should exercise reasonable care when they act by
taking account of the potential harm that they might foreseeably cause to other people." [2]

2.3.1 Elements of negligence claims:

Some things must be established by anyone who wants to sue in negligence. These are
what are called the "elements" of negligence.
Some say there are three elements – conduct, causation and damages. Most say there are four
– duty, breach, causation, and damages – or five – duty, breach, actual cause, proximate
cause, and damages. Each is correct depending on how much specificity is needed. "The
broad agreement on the conceptual model", writes Professor David W. Robertson of
the University of Texas at Austin, "entails recognition that the five elements are best defined
with care and kept separate. But in practice", he goes on to warn, "Several varieties of
confusion or conceptual mistakes have sometimes occurred."
2.3.2 Presence of a Duty of Care:
The first element is establishing the presence of a duty owed by one person to another.
People have a duty to act in a reasonable manner toward others. Each unique personal injury
claim starts with identifying this duty.

Examples of Duty of Care:

▪ Drivers have a duty to their passengers and other drivers to operate their vehicle
carefully.
▪ Retail stores have a duty to their customers and employees to keep their floors clear of
slippery substances and other hazards.
▪ Companies have a duty to their customers to make sure their products are safe.
▪ Doctors have a duty to their patients to treat them in a medically-appropriate manner.
2.3.3 Someone Breached Their Duty:
The second element is a breach of the duty owed by one person to another. A person
breaches their duty by failing to act in a reasonable manner toward another person.

Examples of Breach of Duty:

▪ A reckless driver causes an auto accident.

▪ A company manufactures a defective product that injures a customer.
▪ The host of a party fails to clean up a spill, and a guest is injured when he slips and
falls on it.
▪ A doctor prescribes the wrong medication, and the patient is hospitalized.
2.3.4 The Breach Directly Causes Injuries:
The third element is when the breach of duty becomes the direct cause of another person's
injuries. The type and severity of injuries must be related to a failure to act in a reasonable way. The
source of the breach could be a person, business, organization, or other entity.

Examples of Direct Injuries:

▪ A speeding driver causes an auto accident and someone is injured: the act of speeding
is the direct cause of the injuries.
▪ A company manufactures a defective product and a customer is injured while using it:
the product directly caused the injury.
▪ A homeowner fails to clean up a spill from the floor, and a guest slips and is injured:
the failure to clean up the spill is the direct cause of the injury.
▪ A patient's condition worsens because of a prescription error: the treating doctor's
action in prescribing the wrong medication is the direct cause.
2.3.5 Proving Monetary Losses:
The fourth element is closely tied to each of the first three. When a duty exists, and a
breach of that duty directly causes an injury, the injured person is responsible for proving
the nature and extent of his injuries.

Documented evidence of the injuries and related expenses is critical for recovering any
settlement or court judgment against the responsible party.

Without documentation, the person claiming injuries will have a very difficult, if not
impossible time negotiating their claim. The first three elements of negligence do not confirm
the nature and extent of injuries, nor the financial costs related to those injuries; they must be
separately proven.

Examples of Proof of Losses:

▪ Hospital treatment records and corresponding medical bills

▪ Doctors' diagnosis and prognosis of the injury
▪ Physical therapy and chiropractic records and bills
▪ Receipts for out-of-pocket costs related to the injury (e.g. medications, crutches,
bandages, hospital parking fees, etc.)
Once you understand the elements of negligence, you can begin matching them to the facts
of your case. Your goal is to convince the claims adjuster to approve your settlement demand.
To do that, you must prove their insured was negligent. Proving your case should not be
complicated. You simply must gather all the information that supports your claim. Then use it
to show how the facts of the accident come together to form negligence.

2.3.6 Case example showing the four elements negligence:

On a clear evening, John is driving home from work at the posted speed limit. The highway
has four lanes, two running north and two running south. He's on the inside lane driving north. He
comes to an intersection with a green traffic light. The light is red for traffic approaching in the
opposite lane (heading south).

A driver in the southbound lane suddenly decides to make a left turn. Unable to stop, John slams into
the southbound driver's side door, seriously injuring both drivers and totaling their cars. John is taken
by ambulance to the hospital, where he's diagnosed with several broken ribs, a herniated disk, and a
broken left femur.

2.3.7 The four elements of negligence in this scenario are:

▪ The at-fault driver had a clear duty to drive in a reasonable and safe manner.
▪ He breached that duty when he illegally ran a red light and crossed in front of John.
▪ His breach of duty to drive safely was the direct cause of John's injuries.
▪ His negligence resulted in John's medically documented injuries and related monetary
losses, such as medical bills, lost wages, etc.
Now that you understand the four elements of negligence, you're closer to
successfully negotiating your injury settlement. The claims adjuster will respect your effort to
present your information clearly. That respect will benefit you throughout the course of your
negotiations.

2.3.8 Punitive Damages for Gross Negligence in a Personal Injury Case:

Punitive damages are rare in injury cases, and are meant to punish the defendant.
Here's how they work.

The general public is probably familiar with the term “punitive damages” due to high-
profile jury verdicts. However, where a case proceeds to trial, punitive damages are awarded
in a very small percentage of injury cases. In order to be awarded punitive damages, the
defendant’s behaviour must be especially reprehensible and deserving of punishment.

In this article we'll explain what punitive damages are and when they might be awarded in a
personal injury case.

3 Damages in General:
Damages are generally awarded to compensate an injured person for the harm caused
by the defendant’s actions. There are a number of different types of compensation for an
injury, including compensation for physical pain and suffering, physical impairment, mental
anguish, loss wages, and medical expenses.

For example,

Suppose, Tom was injured in a car accident where the other driver (Mark) was at fault. Tom
can recover damages for permanent lost mobility in his arm, for missing two months of work,
and for his medical expenses. Tom’s damages would be awarded based on the money he lost
as a result of Mark’s actions, and based on the negative impact the accident has had on his
life.
3.1 What are Punitive Damages?
Unlike regular damages, punitive damages are meant to punish and are not directly
tied to a tangible injury. They're not technically meant to compensate the plaintiff for a
specific loss, although the plaintiff is the one who ends up receiving punitive damages from
the defendant.

So, when will punitive damages be possible? In many states, a finding of punitive damages
requires intentional misconduct or gross negligence. Other states require a defendant to act
with recklessness, malice or deceit. Punitive damages can be awarded in most cases, but are
generally not included in a breach of contract case.

3.2 Rationale for Punitive Damages:

Punitive damages are meant to punish and to deter similar wrongful or repugnant
conduct.

In the car accident example above, suppose that Mark intentionally sideswiped Tom’s car
after he thought that Tom cut him off on the highway. Mark engaged in intentional
misconduct and purposely hit Tom’s car. Tom should be awarded damages to compensate
him for his injuries. Also, Tom would have a good claim for punitive damages. Tom can
argue that Mark should be punished for intentionally causing his injuries and should be
punished to deter other people from acting in the same dangerous manner.

3.3 Limitations on Punitive Damages:

Some states like Florida place limitations or “caps” on punitive damages awards.
Florida does not allow a punitive damage award to exceed three times the amount of the
award of compensatory damages or $500,000, whichever is higher. Check the law in your
state or talk to an attorney to find out whether such caps are in place where you live.

4 Basic mens-rea:
Basic mens rea

• Intention
• Recklessness
From the range of mental attitudes discussed above, it is obvious that the most blameworthy
state of mind, with respect to an actus reus, is intention. This is followed by recklessness,
negligence and blameless inadvertence, in that order. To determine guilt, a line needs to be
drawn somewhere within this range. The common law, though not always, drew the line
between recklessness and negligence. The recklessness man was liable, the negligent man
was not. Basic mens rea would include intention and recklessness with respect to all those
circumstances and consequences of the accused’s act (or state or affairs) which constitute the
actus reus of the crime in question.
5 Mens Rea as to Circumstances:
The actus reus of many offences does not require proof of a consequence, simply the
completion of the act in certain circumstances. In such cases, the mens rea might be a part of
the 'circumstance' part of the actus reus.

▪ For example - Rape. Even if it is established that there was no-consent, the
defendant might argued that he was not aware that there was no consent (a mens
rea issue).
▪ There are different ways of looking where consent is placed - whether it is a part
of the act (ie, the act of rape being a package of 'non-consensual sex') or whether
it is a part of the circumstance (i e, the act is merely sex, and it is the circumstance
of being non-consensual that makes it rape).
▪ According to where consent is placed, different standards of mens rea are required
(e.g, intent, recklessness, negligence etc.), and thus, whether it is judged
subjectively or objectively.
6 Mens Rea in Terrorism Offences:
In terrorism offences, the primary mens rea issue often relates to the fact/circumstance
that the organization is a terrorist organization. Accordingly, the higher the mens rea that can
be proved, the higher the sentence will be (i e, proof of intent would mean a greater sentence
than proof of recklessness, whilst negligence is not sufficient).
7 Mens Rea for attempt:
While actus reus elements of attempt are being watered down, this is not happening
with regard to mens rea.

▪ The mens rea for an 'attempt' is narrower or potentially narrower than the mens
rea for the completed crime.
▪ Only intent is relevant in terms of mens rea.
▪ Thus there is an insistence on proof of a high degree of culpability in the mens rea
requirement.
In Knight, the High Court ruled that the intention that must accompany a crime of attempt is
the intention to commit the complete offence.

▪ Facts: Knight was convicted of attempted murder resulting from an altercation

with Salvo, during which Knight fired two shots. The second shot (which was the
 basis for the attempted murder charge) hit Salvo. Knight appealed against his
conviction, arguing that the Crown had failed to prove that he had the requisite
intention to kill at the time that the gun was discharged.
▪ Held: The appeal was dismissed.

7.1 Impossible Attempts:

Especially in the law of attempt, there appears to be a decreased concern with actus
reus, and an increased focus on the accused’s state of mind as the demonstration of
criminality.

▪ While the attempt to do the ‘impossible’ was not previously a crime, the influence
of drug laws and other developments has led the courts to increasingly hold that
there is no difference.
▪ For example, regarding the offence of supply, s 40 (1) of the Drug Misuse and
Trafficking Act 1985 (NSW) deems a substance to be what the defendant believes
it to be (i e, if the defendant was selling something he believes to be a drug, it is a
drug in the eyes of the law regardless of whether it actually is).

8 Interpreting Statutory Criminal Offences:

When legislation is silent on the question of mens rea (ie, the statute only specifies the
actus reus), there is a presumption that mens rea is still required. The leading case in
Australia for this is He Kaw Teh:

▪ Even when the legislation is silent on the question of mens rea, there is a
presumption that mens rea is still required.
▪ This presumption can be rebutted in three ways.

1. Subject matter: if the words suggest that the parliament intended otherwise.
2. Nature of offence and punishment: if the offence and punishment are fairly
trivial, it might not necessitate a mens rea requirement.
3. Whether having no mns rea will help enforcement: if the enforcement of the
law is likely to be assisted by removing a mens rea requirement from this
offence (within reason).
▪ In offences where specific circumstances are an element of the actus reus (eg,
assault of a police officer, rape), mens rea will not be satisfied unless the
prosecution proves that there was no honest and reasonable mistake on behalf of
the defendant (ie, that he knew or reasonably should have known of the
circumstances).
8.1 The Significance of He Kaw The:
He Kaw Teh provides a framework for analysing statutory criminal offences created
under NSW legislation. It is authority to the proposition that all statutory criminal offences
fall into the following three categories.

1. Offences where the prosecution is obligated to prove mens rea.

2. Offences where mens rea is presumed unless there is proof of an HRMF
(called 'strict liability' offences).
3. Offences where mens rea plays no part (called 'absolute liability' offences).
As such, a major part of He Kaw Teh is the classification of strict and absolute liability
offences, the former being protected by the HRMF 'defense'. The courts have been reluctant
to classify offences as absolute liability offences:

▪ In Hawthorn (Department of Health) v Morcam Pty Ltd, the court suggested that
absolute liability should not be imposed where the imposition would not assist in
preventing the offence. In that case, the imposition of an absolute liability would
not have been a deterrent because the accused was under an HRMF.
▪ In CTM, the High Court indicated that a Parliamentary desire for absolute
liability in an offence should be made clear by ‘express language or necessary
implication’.

▪ In other words, Parliament should manifest an intention that it does not want
people acting under a HRMF acquitted.
It is interesting to note that despite the statement in He Kaw Te that there is a presumption
that mens rea is still required even where legislation is silent (thus falling into category 1),
courts almost always interpret such cases as falling into category 2 or 3 (meaning the
presumption has been rebutted).

▪ This is probably because most of the times the prosecutions don’t even argue that
it falls into category 1.
▪ Category 2 of strict liability is seen as a halfway point between categories 1 and 3:
the onerous burden on the prosecution to prove actual state of mind and the very
harsh nature of absolute liability where only actus reus needs to be made out.
9 Exceptions of Mens-Rea:
According to Wright.J the mens-rea is an essential ingredient in every offence except
in three cases:
Cases which are not criminal but are prohibited in the public interest under penalty

Public nuisance.

Cases which are in the form of criminal cases but actually are for enforcing a civil right.
Therefore, there can be no crime without an evil mind and hence, the essence of an offence is
Mens-rea.
Biblography
42
At common law malice has carried various different meanings, particularly in relation
homicide. See: Horder, “Two Histories and Four Hidden Principles of Mens Rea” [1997] 113
LQR95. These discussions will be confined to “malice” in statute from the mid-nineteenth
century onwards.
43
s.20.
44
(1874) 2 C.C.R. 119. Here the offence alleged was one of unlawfully and maliciously
breaking windowunder s.51 of the 1861 Act. Smith notes that Blackburn J seems to have
used “reckless” in the subjective sense in that he said that D’s act would be malicious if D
knew the natural consequences of his act would be to break the glass, although that was not
his wish, and he was reckless whether he did it or not. However, Lord Coleridge
CJ in the same judgment combined his use of the word “reckless” with “reasonably”,
seemingly mixing subjective and objective fault elements. Smith, above n.9, p.164.
45
(1875) 1 QB 23 .
46
(1881) 8 QB 54.
47
Smith,above n.9, p.165.
48
Turner, Kenny’s Outlines of Criminal Law, 19th ed., 1966, Cambridge University Press,,
para.158a.This is the definition of malice attributed to Kenny by the Court of Appeal in
Cunningham. Note, however, that Horder suggests that this is not Kenny’s original definition,
and attacks Turner’s definition as paraphrasing Kenny in a misleading way. He criticises the
Court of Appeal in Cunningham for not paying closer attention to what Kenny
himself said, suggesting that Cunningham should not be regarded as a landmark in legal
thinking about the meaning of malice: Horder, aboven.34, pp.114-118.
49
[1957] 2 QB 396.
50
Offences Against the Person Act1861, s.23.
51
Under Offences Against the Person Act 1861, s.20 in Mowatt [1968] 1 QB 421.
52
Including assault occasioning actual bodily harm under Offences Against the Person Act
1861,s.47, in Venna[1976] Q.B. 421.

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