actus non facit reum nisi mens sit rea       ~   Voluntary activity does not make one a criminal unless one's mind is guilty.


Mens rea - 'the guilty mind'

In most offences, one's mens rea must be proven as well as the act which caused the offence (actus reus). The mens rea must coincide with the actus reus, that is, the action and the intent must occur contemporaneously.

Principles of criminal law in New South Wales state that mens rea can be proven if one of the following is present:

(a) intent (basic or specific)

Basic intent: When one foresees the certainty of injury. Intention for say, murder can exist without there being a specific desire to kill. If A burns down a building and kills a watchman, B, even though he had no quarrel with B, intention exists because he foresaw B's death as certain.

Specific intent: Some offences can be committed only if there is a specific intention present, eg. attempted murder (the intention to kill), larceny or attempted larceny (the intention to deprive permanently of property).

(b) recklessness

When cessation of activity likely to cause harm does not occur, the perpetrator is said to have acted with recklessness. The likelihood of harm must be that which would be apparent to a reasonable person.

(c) gross negligence

Acting without the care, skill and foresight of a reasonable person.

EXCEPTIONS

liability for inactivity (inertia rea)

In the case of homicide, inertia rea might exist if (1) Q is in a special relationship with D, or is responsible for a previous act of commission towards him, and (2) knowing he is helpless, does not do what is reasonable to help him.

strict liability

Offences which do not requre mens rea to be proven. For example, most traffic offences are strict liability offences. Attempting to stow away on a train, no matter your intention, would also be an offence.

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