1 ACTUS REUS & CAUSATION I. ACTUS REUS (GENERAL) 1.

A person cannot ordinarily be found guilty of a serious criminal offense unless two elements are present: A. The actus reus or guilty act. B. The mens rea or guilty mind. II. ACTUS REUS (WHAT IS IT?) 1. An actus reus consists of more than just an act. A. It includes whatever circumstances and consequences are required for liability for the offense in question, i.e. all the elements of an offense other than the mental element. 2. Note: Some crimes (e.g. murder and criminal damage) require the production of consequences or results. 3. Note: Other crimes (e.g. theft and rape) merely require a course of conduct. 4. Authority: Deller [1952] - D had made what he thought was a false representation in order to sell his car. In fact the representation was true. III. ACTUS REUS (VOLUNTARY CONDUCT) 1. To incur liability, the accuseds conduct must be voluntary. 2. There are a variety of circumstances in which the accuseds conduct will not be voluntary, i.e. in which it will be involuntary: A. Automatism This occurs when D performs a physical act or acts but is unaware of what he is doing, or is not in control of his actions. B. Physical force The conduct may be involuntary in that it is physically forced by someone else, in which case there will be no actus reus. C. Reflex actions Sometimes people can respond to something with a spontaneous reflex action over which they have no control. (Example - Hill v Baxter [1958] where driver is stung by swarm of bees and loses control of car.) 3. State of Affairs cases Where actus reus consists of circumstances and sometimes consequences but no acts. (These are being rather than doing offenses.) Examples: A. Being drunk while driving. B. Drug possession. C. Illegal possession of a deadly weapon. D. Liability for others (i) Vicarious liability and (ii) doctrine of innocent agency. 4. Authority: R. v Larsonneur [1933] - Frenchwoman, required to leave the UK, did so by going to Eire (Ireland). She was deported from Eire and handed to the police in the UK. (i) Principle: Actus reus may be (a) an act, (b) an omission, or (c) a state of affairs. 5. Authority: Winzar v Chief Constable of Kent [1983] - D convicted of being found drunk on a highway contrary to s 12 of the Licensing Act 1872. I. CAUSATION (GENERAL) - Questions of causation can present problems in the consideration of

2 actus reus. A. In result crimes (i.e. where a consequence is part of the actus reus), not only must the prosecution prove a forbidden act in forbidden circumstances, but it must also prove the Ds conduct caused the required consequence (often difficult to do). 1. Murder is the major example of a result crime (i.e. consequence is part of the actus reus). Four main problem areas: A. When is the act a substantial cause of death? B. Cumulative and alternative causes. C. What is the legal effect of an intervening event? D. What is the legal effect of negligent medical treatment? II. CAUSATION (SUBSTANTIAL CAUSE OF DEATH) - For liability, Ds conduct need not be the sole or even the main cause of death, but it must be a substantial cause. A. This is impossible to quantify precisely. B. Ds act must have had a significant effect, a more than minimal effect, to be an operating and substantial cause, but it is not necessary to give a jury technical instructions on this matter. 1. Authority: Notman [1994] - D charged at a policeman and the policeman tried to protect himself by tripping d. In doing so he injured his own ankle. III. CAUSATION (CUMULATIVE OR ALTERNATIVE CAUSES) - Easier to establish liability if Ds act was one of a number of cases that, cumulatively, could be said to have caused the harm, than if it is merely one possible alternative cause. 1. Authority: Watson [1989] - V was elderly and frail. He was burgled by D. Following that and consequent visits by the police and council repairmen, he suffered a heart attack and died. A. Comment: Such a situation is different from that where there are possible alternative causes. In such a case causation is more difficult to establish. IV. CAUSATION (INTERVENING EVENTS) - Sometimes, after the Ds initial act and before the required consequence occurs, there is an intervening act or event that contributes to that consequence. 1. An intervening act can break the chain of causation and defeat Ds charge of liability if the following is shown: A. The intervening act was completely unconnected with Ds act. B. The intervening act was unforeseeable. C. The intervening act brought about the consequence on its own. 2. The intervening act must have been free, voluntary, and informed. 3. Note: If the consequence is caused by a combination of the two causes and Ds act remains a significant cause, then D will still be liable. 4. Authority: R. v Malcherek [1981] - Defendant stabbed his wife in the stomach. In the hospital she was put on a life-support machine. After a number of tests showed that she was brain dead, the machine was turned off. A. Law: Discontinuance of treatment by switching off a life-support machine does not break the chain of causation. The original injury was still a substantial and operating cause of death. B. Comment: The court applied the normal substantial and operating cause test: the cause of death was the wound inflicted by the defendant, not just the lack of a life-support machine. C. Comment: Notably, had the machine been switched off by an intruder then the intruder could

3 be said to have caused the victims death and broken the chain of causation. D. Principle: Only if the medical treatment is manifestly wrong and the original wound is no longer an operating and substantial cause of the injury will the medical treatment break the chain of causation. 5. Authority: R. v Pagett [1983] - D held a woman in front of him as he fired at armed police. The police returned fire, killing the woman. A. Law: D was found to have caused the womans death despite the actions of the police. A defendant need not be the sole cause or even the main cause it being enough that his act contributed significantly. B. Law: The court also stated that causation is a question for the jury to decide on the facts but must be decided in accordance with legal principles. C. Comment: The Court asserted that Ds act had caused the death because the intervening act by the police had been a foreseeable consequence of his action and thus had not broken the chain of causation. D. Principle: The defendants conduct does not have to be the sole (or main) cause of a result, but it must more than minimally contribute to it. 6. Act of the victim: If the intervening act is an act of the victim himself, then the court would ask whether his response was within the range of responses that might be anticipated. If so, it would not break the chain of causation. 7. Authority: R. v Roberts [1972] - D was convicted of assault occasioning actual bodily harm, after trying to remove the clothes of a woman driving with him and tugging at her coat. She jumped from the car, sustaining actual bodily harm. A. Ds appeal included the claim that it was necessary to prove that he foresaw she might jump from the car. (Dismissed) B. Law: Prosecution must prove that the D caused the injury in fact and law. This was established since the womans response was reasonably foreseeable as likely to happen as a result of the defendants conduct. C. Law: It is not necessary to show that the defendant himself foresaw this might happen, but only that a reasonable person would. D. Comment: CA asserted that where a victim is injured in attempting to escape from threatened violence, the test of causation is: Was it the natural result of what the (accused) did, in the sense that it could reasonably have been foreseen as the consequence of what he was saying or doing? E. Principle: The chain of causation is broken only if the victim does something so daft that no reasonable person could be expected to foresee it. 8. Act of the victim (refusal to accept medical treatment): Such a refusal is not an intervening act and it will not break the chain of causation. 9. Authority: R. v Blaue [1975] - D stabbed victim who died after refusing a blood transfusion because she was a Jehovahs Witness. A. Law: The operative cause of the victims death was the stab wound and not her refusal of treatment. B. Law: The chain was not broken by the refusal because D must always take his victim as he finds him. C. Comment: The rule, stated as obiter, that a victim is taken as found (which covers physical and other attributes) prevents a break in the chain even though it may be an unforeseeable abnormality. D. Comment: Herring points out: It may be argued that Blaue was a special case which in fact

4 was about freedom of religion. The argument could be that normally the jury should consider whether the victims response was reasonably foreseeable, but that the court was unwilling to ask that question here because it might require that they consider whether the exercise of religion was unreasonable. E. Comment: The question of reasonability in a case like this is entirely immaterial; whether reasonable or not, the victims refusal of treatment fails to break the chain of causation. F. Principle: An abnormality in the victim will not break the chain of causation, even if it is not reasonably foreseeable. G. Principle: The defendant must always take his victim as he finds him. 10. Act of victim (actively interferes with own medical treatment): 11. Authority: R. v Dear [1996] - D stabbed victim with a knife. While in the hospital victim may have made the wounds caused by defendant worse by reopening them. Victim died from his wounds. A. Law: Even if the victim had deliberately reopened the wounds (not completely clear) the jury was still entitled to find that the wounds inflicted by the defendant were an operating and substantial cause of the victims death. B. Comment: Herring notes that this is a rather problematic decision that is not readily reconcilable with either Roberts or Blaue. This is because it is not unreasonable to claim that the victims act was free, voluntary and informed, thus breaking the chain of causation. C. Comment: Indeed, the basis of this claim could be the principle from Roberts that holds a chain of causation to be broken only if the victim does something so daft that the reasonable person would not foresee it. Reopening ones wounds could certainly be so characterized. D. Comment: In general, this case is difficult to reconcile with either Roberts or Blaue. V. CAUSATION (NEGLIGENT MEDICAL TREATMENT) - A final set of cases where causation problems arise are those concerning negligent medical treatment of the original injury in homicide cases. 1. In general, the courts are now very unwilling as a matter of policy to find that medical treatment has broken the chain of causation when it follows an initial unlawful act by someone else. 2. Authority: R. v Jordan [1956] - D stabbed victim who died a few days later following treatment for the wound. The wound had almost healed and the immediate cause of death was the medical treatment, described as palpably wrong. The victim had unnecessarily been given an antibiotic to which he was allergic. A. Law: The evidence was sufficient to conclude that the direct and immediate cause of death was a separate and independent feature (the treatment) and not the stab wound. B. Comment: It was suggested that where death arose from normal treatment for an injury, the injury could be said to be the cause of death. C. Comment: However, in this case the treatment was abnormal and therefore broke the chain of causation. D. Principle: If an event intervenes between the defendants conduct and the result, it may be a novus actus interveniens (a new operative cause), breaking the chain of causation. 3. Authority: R. v Smith [1959] - D stabbed victim, causing internal injury. A medical officer, not realizing the nature of the injury, gave thoroughly bad treatment. Victim died within two hours of being stabbed but might not have died if given different treatment. A. Law: Death resulted from original wound which was still an operating and substantial cause of the death despite other operative causes. B. Comment: The court distinguished Jordan [1956] as a very particular case, depending on its

5 exact facts. C. Comment: The chain of causation will be broken (as in Jordan) only if the original wound is merely the setting in which another cause operates, i.e. only if the second cause is so overwhelming as to make the original wound merely part of the history. D. Comment: Note also the view in Airedale v Bland [1993] that allowing a patient to die of a pre-existing condition does not, in law, amount to causing the death. The death is still treated as caused by the pre-existing condition. E. Comment: Overall, the distinction between Smith and Jordan seems to be that in Jordan the wound, having practically healed, ceased thereby to be an operating and substantial cause of the victims death. F. Principle: An intervening event will not break the chain of causation if the defendants conduct is still an operative and substantial cause of the result. 4. Authority: R. v Cheshire [1991] - D shot victim in the abdomen and thigh. Victim subsequently developed breathing difficulties, necessitating a tracheotomy. Two months after the shooting, the wounds had practically healed but the victim died from complications caused by the tracheotomy. A. Law: The complication from which the victim died was a direct consequence of the defendants conduct, which was still a significant cause of the death. B. Law: This was not an extraordinary or unusual case where treatment was so independent of the defendants conduct and so potent in causing death as to exonerate the defendant. C. Comment: Factually, the case is similar to Jordan, since the original wound had ceased to operate. D. Comment: However, only treatment that is so extraordinary as to be independent of the defendants conduct breaks the causal chain. E. Comment: Obiter in Cheshire suggests that incompetence does not of itself render treatment abnormal in the sense of extraordinary. F. Principle: To operate as a novus actus interveniens, the intervening event must be so potent and independent of the defendants actions as to render those actions insignificant. I. OMISSIONS (GENERALLY) - A positive duty to act exists in the following circumstances: A. Special relationship. B. Voluntary assumption of responsibility. C. Duty under a contract. D. Creation of a dangerous situation. E. Statutory duty. F. Law enforcement situation. G. Ownership/control of property (possibly) (ex. Publican failing to intervene with post-hours drinking). H. Continuing act (Fagan) I. Novel situations (European Court of Human Rights held not necessarily retrospective legislation). II. OMISSIONS (SPECIAL RELATIONNSHIP) - A special relationship between the defendant and the victim can create a duty. 1. Examples: (A) parent and child and (B) people in positions of authority or responsibility. 2. Authority: R. v Gibbins & Proctor [1918] - A father and his common law wife failed to feed his child who died as a result. A. Law: Father guilty of murder, having breached duty owed by parents to their children. B. Principle: A duty to act may arise from the close relationship between defendant and victim.

6 3. Doctor-Patient Relationship: This can cause particular difficulties where the patient is severely handicapped. A. Although there is no separate rule within criminal law that exculpates doctors who do not treat these patients, it is clear that the extent of a doctors duty in such case is a very complex issue, and that the use of medication or extraordinary medical treatment may not be compulsory. B. This issue has been considered more recently in civil cases. 4. Authority: Airedale NHS Trust v Bland [1993] - A patient had been in a persistent vegetative state for over three years. The doctors and family wanted to withdraw treatment and artificial feeding and the health authority successfully applied for a court order to do so. A. Law: In light of the patients condition and views of the medical personnel, the declaration was granted. B. Law: Although a doctor is under a duty to act in the best interest of his patient, continuation of treatment is not always to be considered as such. C. Law: In this case, since there was no chance of recovery, withdrawing treatment would not breach the doctors duty. D. Comment: This case further illustrates the difficulties involved in classifying conduct as an act or omission. E. Comment: The court stated that it was always unlawful to take positive steps to end a patients life. It was only where the case was one of omission that it might be lawful because no duty was breached. F. Comment: This means that liability turns on how the conduct is classified: Is withdrawing treatment an act or an omission? G. Principle: A person may be discharged from his duty to act, incurring no liability for an omission thereafter. II. OMISSIONS (VOLUNTARY ASSUMPTION OF RESPONSIBILITY) - Someone who voluntarily assumes responsibility for another person also assumes the positive duty to act reasonably for the general welfare of that person and may be liable for omission which prove fatal. 2. Authority: R. v Gibbins & Proctor [1918] (Second examination) - Father and his common law wife failed to feed his child who died as a result. A. Law: Father guilty of murder, having breached duty owed by parents to their children. B. Law: Fathers female companion guilty of murder. Although not the mother of the child, she had assumed responsibility by living with the father and child. C. Principle: A duty to act may arise from the close relationship between defendant and victim. D. Principle: A duty to act may also arise through voluntary assumption of responsibility for another person, particularly where one assumes the positive duty to act reasonably for the welfare of that person. 3. Authority: R. v Stone & Dobinson [1977] - An aged woman lived with her brother (Stone) and his common law wife (Dobinson). She refused to eat and became seriously ill and bedridden. For a number of reasons, the defendants failed to summon medical help and the sister eventually died. A. Law: The assumption of a duty could be inferred from the facts that (a) both defendants were aware of her condition; (b) she was a blood relation of Stone, living in his house; and (c) Dobinson had undertaken the duty of trying to wash and feed her. B. Comment: Reference to Stones relationship with the deceased suggests a common law duty based on special relationship, but it is unlikely that such a duty would have been owed if she had not been living in his home. C. Comment: There was no such relationship with Dobinson, but she had apparently assumed a

7 duty by trying to care for the deceased. D. Comment: Does this mean that Dobinson would have been under no duty if she had not acted at all? What about Stone? E. Principle: A duty to act may arise from the close relationship between defendant and victim. F. Principle: A duty to act may also arise from a voluntary assumption of responsibility for another person, particularly where one assumes the positive duty to act reasonably for the welfare of that person. III. OMISSIONS (DUTY UNDER A CONTRACT) - A person may be under a positive duty to act because of his obligations under a contract. The duty may be to the other contracting party or to a third party. 1. Authority: R. v Instan [1893] - D lived with her aged aunt who died after defendant failed to feed her or get medical help when she became unable to care for herself. A. Law: Defendant was under a duty because food was paid for by the aunt, who relied on the niece as her only source of maintenance. B. Comment: A common law duty could arise from the familial relationship, but it is doubtful whether such a duty arises where the parties are of full age and capacity. C. Comment: A common law duty could also arise because the aunt depended on the niece, who had voluntarily assumed such a duty. D. Comment: Moreover, the court felt that the duty could arise from a contract, implied from the circumstances of the case. E. Principle: A duty to act may arise through contract. 2. Authority: R. v Pittwood [1902] - A railway gatekeeper, whose duties involved shutting a gate when trains passed, forgot to shut the gate. An oncoming train killed a person crossing the track. A. Law: The conviction was based on the duty imposed by his contract of employment. B. Law: It did not matter that the contract was between him and a third party (his employer). C. Principle: A duty to act (even to a third party) may arise through contract. IV. OMISSIONS (DUTY DUE TO CREATION OF A DANGEROUS SITUATION) - If the defendant has acted positively although innocently to create a state of affairs that might cause damage or injury, and subsequently becomes aware of the danger he has created, there arises a duty to act reasonably to avert that danger. 1. Authority: R. v Miller [1983] - D accidentally set fire to a mattress by falling asleep with a lighted cigarette. When he awoke, he failed to take any steps to extinguish the fire or prevent further damage. A. Law: Arson can be committed by act or omission. B. Law: Where a defendant creates a dangerous situation and it is within his power to counteract that danger, a responsibility arises to do so. C. Comment: For example, in a case on manslaughter, R. v Khan (Rungzabe and Tahir) [1998] (CA), a duty to call for medical help was capable of arising where the defendants had supplied the victim with heroin and failed to act when she became comatose. D. Comment: The duty is simply to take reasonable steps (safely open to the defendant) and only arose because the defendant created the danger in the first place. E. Comment: Lord Diplock contrasted the case of a passive bystander who sees a fire but is under no duty to act. F. Principle: A common law duty to act may arise from creating a dangerous situation. V. OMISSIONS (STATUTORY DUTY) - In some circumstances statute makes it a criminal offense to omit to do something.

8 1. For example, s 170 of the Road Traffic Act 1988 makes it an offense, if one is involved in an accident, to omit to either report it within 24 hours to the police or to give all relevant details to any other person at the scene of the accident reasonably requesting them. I. COINCIDENCE OF ACTUS REUS AND MENS REA (GENERAL) - Actus reus and mens rea must coincide in time for there to be criminal liability. 1. The courts have developed ways of finding such coincidence when the events take place over a period of time and constitute a course of events: A. Continuing act. B. One transaction. II. CONTINUING ACT Here it is said that an actus reus is a continuing act and that it and a later mens rea can therefore coincide. 1. Authority: Fagan v Metropolitan Police Commissioner [1969] - D drove his car onto a policemans foot. This may have been accidental but then he deliberately refused to move. A. Facts: At his trial defendant claimed that the original act was not assault because he lacked mens rea and the rest of his conduct was an omission which could not amount to assault. B. Law: It is certainly true that assault cannot be committed by omission. However, the assault in this case was not complete on mounting the officers foot but continued until the car was removed. Therefore, failing to remove the car was not a mere omission but part of a continuing act. C. Law: In other words, the actus reus was not complete at the time when the mens rea was formed and it was not necessary for mens rea to be present throughout the continuing act. D. Comment: Fagan would have been acquitted if his conduct could only be described as an omission. E. Comment: For other examples of the consequences and difficulties involved in categorizing conduct, see R. v Miller [1983] and Airedale NHS Trust v Bland [1993]. F. Principle: In general, the actus reus and mens rea of a crime must be contemporaneous (coincide in time). G. Principle: Where an actus reus initially occurs without mens rea, comtemporaneity may be achieved if the actus reus is construed as a continuing act and mens rea occurs during its continuance. 2. Authroity: R v Kaitamaki [1984] - D was charged with rape. His defense was that when he penetrated the woman he thought she was consenting. When he realized that she objected he did not withdraw. A. Held: (PC) The actus reus of rape was a continuing act, and when D realized that V did not consent (and he therefore formed the necessary mens rea) the actus reus was still in progress and there could therefore be coincidence. B. Principle: In general, the actus reus and mens rea of a crime must be contemporaneous (coincide in time). C. Principle: Where an actus reus initially occurs without mens rea, comtemporaneity may be achieved if the actus reus is construed as a continuing act and mens rea occurs during its continuance. III. ONE TRANSACTION - Here courts consider a continuing series of acts to be one transaction for the purposes of the criminal law. 1. If actus reus and mens rea are both present at some time during this transaction, then there is

9 liability. 2. Authority: Thabo Meli v R. [1954] - In pursuance of a preconceived plan to kill and evade detection, the defendants assaulted the victim. Believing him to be already dead, they staged an accident by dropping the body over a cliff where the victim ultimately died from exposure. A. Law: The first act(s), done with mens rea, did not cause death and the act(s) which did cause death were not accompanied by mens rea. B. Law: However, the acts were not separate. They were all part of the plan and therefore represented one series of acts during which actus reus and mens rea were present. C. Principle: Where a series of acts culminate in the actus reus, and mens rea existed before but not at the time of the actus reus, comtemporaneity is achieved if the series of acts are a continuous transaction connecting actus reus and mens rea. 3. Authority: R. v Church [1966] - D was convicted of manslaughter, having assaulted the victim with intent. Believing the victim to be dead, he threw her body in a river where she died from drowning. A. Law: The jury was entitled to treat the series of acts as one course of conduct. Therefore, because the first act would establish (at least) manslaughter if the victim had died, the defendant was guilty even though he lacked mens rea at the time of doing the act that caused death. B. Comment: The court also felt that murder was possible if the series of acts were designed to cause death or grievous bodily harm. C. Comment: There was no preconceived plan as in Thabo Meli [1954] nor did the court explain why, in the absence of such, this could still be viewed as one transaction. D. Comment: Explanation comes in Le Brun [1992]. E. Principle: Same as Thabo Meli. 4. Authority: R. v Le Brun [1992] - In the course of an argument defendant hit his wife, causing her to become unconscious. In dragging her away thereafter, he caused her death by accidentally dropping her body. A. Law: Where there is a time interval between the act done with mens rea (the original assault) and the act that causes death, there may still be a conviction if all the acts are part of the same sequence of events (the same transaction). B. Law: This is easily established where the subsequent actions are designed to conceal the original act done with mens rea. (Applies to Church as well.) C. Comment: The court distinguished Thabo Meli [1954] because there was no preconceived plan. Moreover, unlike Thabo Meli or Church, the defendant did not believe he was disposing of a corpse. D. Comment: The court approved a distinction between subsequent acts by which the defendant was trying to assist the victim (such as trying to get the body to the hospital) and acts not so designed (such as disposal or trying to conceal the original act). The latter established the continuous transaction whereas the former might not. E. Comment: This case also raises an issue of causation. If the first act is a contributory cause of the death and accompanied by mens rea, there is no difficulty with contemporaneity and the defendant is guilty because his subsequent acts do not operate as a novus actus interveniens. F. Principle: Acts designed to evade liability do not break the chain linking the original act to the death, but acts designed to assist the victim might. 5. Authority: Attorney-Generals Reference (No. 4 of 1980) [1981] - Defendant slapped victim, causing her to fall downstairs and bang her head. He dragged her upstairs by a piece of rope tied around her neck, cut her throat, dismembered her body and disposed of the pieces. A. Problem: Prosecution could not prove which act caused her death and the judge directed an

10 acquittal. B. Held: (CA) It was not necessary to prove which act caused death as long as the jury was satisfied that each possible cause was accompanied by the relevant mens rea. C. Law: However, if the jury felt that any one of the relevant acts was not accompanied by mens rea, they must acquit even where satisfied that the remaining acts were so accompanied. D. Comment: A conviction for manslaughter was possible because evidence suggested that all of the acts were accompanied by the mens rea of manslaughter. E. Principle: If the defendant commits a number of different acts and the prosecution cannot prove which one caused the specified result, the defendant must be acquitted unless mens rea accompanied each of the acts that may have caused the result.