Criminal Law

Elements of a criminal offence:

A criminal offence consists of 2 basic elements: actus reus and mens rea.
Actus reus = the guilty act (conduct)
Mens rea = the mental mind (mental state)
Theft: dishonestly appropriating property belonging to another with the
intention of permanently depriving the other of the property. On is guilty of
theft only if both his conduct and mental state satisfy the requirements of
the actus reus and mens rea of theft.
Function of Criminal Law:
Definition of a crime:
A crime or criminal offence is a legal wrong and the wrongdoer who
committed the crime may be punished according to legal procedure. A
criminal offence can only be created by the Legislative Council through
enactment of legislation and sanctions are stipulated by statute.
Process: investigation, prosecution, trial of a criminal offence, appeal against
the court's findings
One must be proven guilty of a crime that he possesses every element:
criminal act (actus reus) + requisite state of mind (mens rea) + causation +
concurrence (of Act and State of Mind)
If the prosecution is unable to prove all of the elements, there can be no
conviction. Before he may be convicted of a crime, the prosecution must
show that the person committed an act prohibited by some law, or failed to
act when he had a legal obligation or duty to do so. This principle is referred
to as the actus reus. The law does not punish mere criminal thoughts, nor
does it punish a person for his status. As a rule, legal liability is typically
based upon an affirmative physical act by the person charged, but in some
instances liability can rest upon a failure to act, if it is determined that a
person had a legal obligation to act under the circumstances. The act or the
conduct may consist of the physical movement of a person, such as pulling
the trigger of a gun or breaking into a house to commit theft, or it may
consist of verbal acts that induce fear in a victim. Possession can also form
the basis of criminal liability even though it does not seem like an act, as
long as the prosecutor can prove that the defendant knowingly had custody
or control over the contraband.
Criminal act requirement:
(a) Voluntary Act
The act must be voluntary. Examples to be excluded: epileptic seizures
while driving and kill innocent bystanders or spasms, reflexive actions, or

actions while sleepwalking or in some other form of unconscious state.

The acts carried out by the sleepwalker are held to be not voluntary for
purposes of criminal liability because the action is not under the volition
of the actor, the first element of the crime (a voluntary act) is missing.
Other examples: hypnosis or brainwashing (the wills of these people have
been compromised by some form of mind control).
(b)Act vs Status
The criminal law does not punish thoughts, emotions, personality or
character. However, statutes prohibit being in public while drunk was held
to be constitutional.
(c) Possession
Mere possession of property often involves no physical action to gain
control of the contraband item. Mere possession was not a crime because
no act was involved. The rationale is that the act requirement is complied
with because the defendant either actively procured or received the
items, or violated the legally imposed duty to divest himself of control as
soon as possible upon discovering the illegal nature of the possession.
Therefore, possession crimes might be considered crimes of omission
because the individual did not divest themselves of contraband once they
had knowledge, and this omission created criminal cuplability.
In order to be convicted of a crime, the accused must have committed a criminal act (or
omission). The act may involve an actual physical movement, or it may consist of verbal
acts. One cannot be punished for evil intent alone, nor for any status (such as being an addict
or an alcoholic). When criminal liability is based upon the defendant's affirmative act, there
usually must be a showing that he made some conscious movement, gowever, possession
crimes have been upheld even if there is no proof of a conscious movement related to the
contraband.
Criminal Omission:
Though in the usual case an affirmative act is required for criminal culpability, in some instances,
liability can rest on the failure to act. This is referred to as criminal omission, acts of
omission, or in some instances, failure to act. There are many statutes that make failure to act
a violation of the law, e.g. failure to register for the draft or failure to prepare income tax returns.
Although the cases concerning failure to act generally arise in homicide cases in which the
defendant's conviction is predicated on the theory that the defendant failed to take steps to save
the victim's life, the rationale also applies in other cases. The rule is that the defendant's omission
will support a finding of criminal liability when it is shown that he was under a legal duty to act
and that it would have been possible for him to act. In Jones v United States, the court held that a
person who failed to act may be found guilty of homicide, if there existed a duty, e.g. where a
statute imposes a ditu to care for another; where one stands in a certain status relationship to
another; where one has assumed a contractual duty to care for another; and where one has
voluntarily assumed the care of another and so secluded the helpless person as to prevent the
others from rendering aid. FAILURE TO RENDER ASSISTANCE MURDER