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Indeed as a general rule, it is acceptable that “a person is not criminally responsible for any act or omission unless he did the act voluntarily and with a blameworthy state of mind.”
To discuss the statement above, it is very important to define the term criminal or criminally responsible. It will also be important to identify the basic principles of criminal liability, understand the concepts of Actus reus and mens rea and distinguish between their constituent elements, causation and its ingredients, differentiate among the concepts of motive, intention knowledge and recklessness.
What is a crime?
It is necessary to define crime as many scholars have different definitions and it is accepted that not one definition suites all schools of thoughts. Crime is defined as an act or omission to act which constitutes an offense or abrogates the norms of society or statutes of a country and is punishable by law. Punishment include incarceration and or payments of fines.
Crime is prosecuted by the state as it is deemed to be a wrongful act committed against entire society as opposed to individuals or institutions.
Having defined crime, it will be important to identify its constituents. For a criminal liability to be established, elements of a crime that is alleged to have been committed need to be established, such elements as forbidden conduct or conduct that is prohibited otherwise known as ACTUS REUS.
This is the guilty act or an omission to act that an accused may have been alleged to commit. Actus reus may also include external elements otherwise referred to as circumstances. In certain instances, such as murder and assault, it is not sufficient to prove only actus reus. The result of the wrongful or prohibited act also must be proved. At law, the evil in the mind has no place to be considered a wrong. Until that evil thought is actualised by action. That is to mean that the prosecution must establish that the offender committed the offence, there shall be no criminal liability. This is demonstrated in the case of R V. Deller (1952) 36 Cr. App R 184. Deller took his car to a trade-in. he represented that there was no money owing on it. He believed that there were payments outstanding. It looked as if he had made a false pretence. He was arrested and charged with false pretence. The evidence before the court was that he had a loan on the car; the loan was void and in law did not exist. In essence, he did not own any debt. His representation turned out to be true, though he mistakenly believed it to be false. The Court of Criminal Appeal quashed the defendant’s conviction on the ground that the prosecution had failed to prove that the pretence was false. It can be seen that in Criminal law, one cannot be criminally liable of an offence simply because you believe that you are guilty. It is for your accused (prosecution) to prove the whole of the actus reus. The defendants’ guilt in this case is in the realm of thought and that won’t do. A belief cannot make a lawful act unlawful.
R v Dadson (1850) In this case, a constable guarded a corpse from which wood had been stolen on several occasions in the past. The constable saw the victim came out of the corpse, carrying wood. The victim had stolen the wood. The constable shot at and injured him, and was charged with shooting with intent to cause grievous bodily harm. At that time, stealing was felony only if a person had two previous convictions and it was lawful for a constable to shoot an escaping felony. The Court found that the victim had two previous convictions but not known to the constable. The constable was convicted. The court of Criminal appeal held that an accused did not have a defence unless he was aware of the facts justifying the defence at the time of the offence. As such, the mens rea did not matter but rather the act of shooting an unarmed suspect.
Omission.
At Criminal law, generally, the rule is that there cannot be any criminal liability for failure to act. However, there are exceptions to the general rule. Where one is under duty to act as imposed either by statute or general responsibility of their duty on shift wilfully neglect to act and the resultant effect of the omission is a wrongful outcome, such a person will be held criminally liable. Duty to act may also be attributed to close family members where they owe a duty of care to help the disabled. Duty of care may arise where the physically disabled will rely on a family member for rescue from a difficult situation.
Another exception to actus reus is an involuntary act. This, at law is known as automatism. If a defendant commits a prohibited act and done so without his free will and with no fault of his own, he is not in control of his actions when occasioning the prohibited consequence or engaging in a prohibited conduct, he should not be held criminally liable. Such a person is described as ‘automatic’. That they were in a state of automatism.
From what is contained herein, it can be said that the actus reus contains the following elements.
1. an act or an omission to act
2. occurring in a defined surrounding or circumstances
3. resulting in (or causing) any requisite prohibited consequence
In the Zambian penal code, Cap 87, there are examples of actus reus such as
S, 66(1) of the penal code, cap 87 provide that
(a) any person who, without the permission of the president, trains or drills any other person to the use of arms or practices of military exercise, movements, or evolution or
(b) is present at any meeting or assembly of persons, held without the permission of the president, for the purpose of training or drilling of any other person to the use of arms or the practice of military exercise, movements, evolution ; is guilty of a felony and is liable to imprisonment for 7 years.
(2) Any person who, at any meeting or assembly held without the permission of the
President, is trained or drilled to the use of arms or the practice of military exercises,
Movements, or evolutions, or who is present at any such meeting or assembly for the
Purpose of being so trained or drilled, is guilty of a misdemeanour. Other examples of actus reus are provided for in S 75 of the penal code, cap 87 .
a person who takes part in an unlawful assembly is guilty of a misdemeanour and is liable to imprisonment for 5 years.
MENS REA
The second element is the guilty mind otherwise known as the mens rea. Criminal liability should not be established by the proof of actus reus alone. In most of the cases involving criminal conduct, criminal liability rests upon the prosecution to prove culpability in the sense that at the time the accused person conducted themselves in a prohibited act or omission he did so with malice aforethought. There must have been present in the accused person a certain state of mind and that the accused was aware of their actions even though they never meant to harm or kill someone as they commissioned in a prohibited act or omission. This is referred to as the mens rea under the English Criminal law. As opposed to the literal meaning of malice as ill-will and aforethought as pre-meditated, Malice aforethought should be understood from a statutory interpretation as the state of the mind of the accused person at the time of the commissioning of the prohibited act or omission. This should be seen as the actual intention of the accused to cause harm that was in fact occasioned, also that the accused person was reckless as to whether such harm was to occur or not.
Most crimes, including common-law crimes, are defined by statutes that usually contain a word or phrase indicating the mens rea requirement. A typical statute, for example, may require that a person act knowingly, purposely, or recklessly.
Sometimes a statute creates criminal liability for the commission or omission of a particular act without placing or considering a mens rea. These are called strict liability statutes.
If such a statute is construed to purposely omit criminal intent, a person, who commits a crime may be criminally liable even though he or she had no knowledge that his or her act was criminal and had no thought of committing a crime. All that is required under such statutes is that the act itself is voluntary, since involuntary acts are not criminal.
Occasionally mens rea is used synonymously with the words general intent, although general intent is more commonly used to describe criminal liability when a defendant does not intend to bring about a particular result. Specific intent, on the other hand is another term related to mens rea, describes a particular state of mind above and beyond what is generally required. Common-law burglary requires breaking and entering into the dwelling of another with an intent to commit a felony therein. These crimes and others that require a specific-intent element are called specific-intent crimes and are distinguished from general-intent crimes. General-intent crimes require only a showing that the defendant intended to do the act prohibited by law, not that the defendant intended the precise harm or the precise result that occurred.
Courts have defined specific intent as the subjective desire or knowledge that the prohibited result will occur (People v. Owens, 131 Mich. App. 76, 345 N.W.2d 9041983). Intent and motive are commonly confused, but they are distinct principles and differentiated in the law. Motive is the cause or reason that prompts a person to act or fail to act. Intent refers only to the state of mind with which the act is done or omitted. Because intent is a state of mind, it can rarely be proved with direct evidence and ordinarily must be inferred from the facts of the case. Evidence of intent is always admissible to prove a specific-intent crime, but evidence of motive is only admissible if it tends to help prove or negate the element of intent.