CRIMINAL LAW. CRIMINAL LAW Name of the Student: Name of

Running head: CRIMINAL LAW
CRIMINAL LAW
Name of the Student:
Name of the University:
Author Note:

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Introduction:
The issue involved in this case is to identify the liability of Joe for Sam’s death and the
defences Joe might attempt to depend on to support his case.
Discussion:
In the present case, Joe will be first charged with murder contrary to section 18 of the
Crimes Act 1900(NSW), hereinafter referred to as Code1. For all homicide offences, the burden
of proving all the elements of the offence beyond reasonable doubt is on the prosecution as per
the Woolmington principle. The accused is to be presumed to be innocent until the offence is
proved. To prove the murder offence, the prosecution has to prove the charge of murder2.
Charge of murder:
The basic elements to be proved for the offence of murder are the actus reus and mens
rea. The general rule of proving murder is based on the maxim ‘actus non facit reum nisi mens
sit rea’ which means that the offence of murder can be said to be committed when the guilty act
is coupled with guilty mind.
Actus reus:
The term actus rea is a Latin term which means guilty act. It is the physical element of
the crime. It is usually defined as a criminal act that has resulted from voluntary body movement.
It refers to a physical activity that inflicts harm on another person or causes damage to a
1 The Crimes Act 1900(NSW), s. 18.
2 Fitz-Gibbon, Kate, Jude McCulloch, and JaneMaree Maher. "NSW Government Sentencing Council: Review of
sentencing for murder and manslaughter." (2019).

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property. Anything arising from physical assault to causing murder will comprise of an actus rea.
Omission of doing any act as a result of criminal negligence is another type of actus reus. It
involves taking an action that if taken properly and timely could have not resulted into the injury
or harm to another person. The omission can be in the form of negligence on the part of a person
which a reasonable person could have avoided being little more careful and diligent.
The exception to actus reus is when the criminal act was done involuntarily. This
includes acts that are done at the heat of the situation, without proper intention or will. Examples
of such acts are acts done as a result of a spasm, provocation, anger, convulsion or instigation. In
these situations, the intention or will was absent. It is called mens rea or the mental element.
Mens rea:
In He Kaw The v R ( 1985),Brennan J described the mens rea working as the element of
crime related offences3. The general principle in law of England is that unless the mens rea is
present, there cannot be any crime. It was observed by CJ Lord Russel in Williamson v Norris
(1899)4. However it is very difficult to presume the mental condition of the person committing
the crime. Hence in order to establish the presence of guilty mind or mens rea, the elements like
intention, foresight, knowledge or awareness have to be identified and analyzed. In Kural v the
Queen, it has been held by the High Court that since the mental elements change with the facts of
the case, it is not possible to make any exhaustive list of factors that will form the basis of mens
rea5. It changes with cases.
Presumption is usually made that the accused charged with any offence has the evil
intention of doing it. In R v Wampfler, the judges of the New South Wales Court of Criminal
3 He Kaw The v R ( 1985) 157 CLR 523, 582.
4 Williamson v Norris (1899) I Q.B 14.
5 Kural v the Queen.

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Appeal, followed the decision given in the He Kaw Teh v The Queen held that the obligation lies
on the prosecution to prove the mens rea, which is the main obligation, in the cases where mens
rea is presumed to be present, the prosecution has the duty of negating it, the guilt is proved by
the objective criteria of the offence and there is no mens rea in it6. Section 56 of the Criminal
Code (Cth) provides a reasonable that in order to prove guilt; the fault is to be proved for each of
the physical elements of the Commonwealth offence7.
In the present case, the Joe was liable of murdering Sam. The prosecution has the burden
of proving all the elements to the standard of beyond of reasonable doubt as observed in the case
of Woolmington v DPP [1935] which is the landmark case of the House of Lords where the
presumption of innocence was first formulated in the Commonwealth8. According to the
Woolmington principal, the prosecution must prove the guilt of the accused and there is no
burden on the accused to prove his innocence. It is called the ‘golden thread’ which based on the
‘presumption of innocence’ in the English Common law. In the Privy Council case of Jayasena v
the Queen [1970] AC 618, it was observed that the defended is required to collect evidences ‘to
make it possible for a reasonable jury to acquit’9.
In the present case, actus rea was present in the context of positive act and not omission.
There lies a question whether the act of Joe was willed or conscious. When there is nothing to
show that the conduct of the accused is being willed or conscious the presumption is that the act
was voluntary. The accused can rebut it by an evidentiary burden and then the prosecution is
required to prove that the act was voluntary beyond all reasonable doubt ( Falconer 1990 171
CLR 30) as laid in the Woolmington principle. In this case, Joe’s act was voluntary and willed.
6 R v Wampfler.
7 The Criminal Code (Cth), s. 56.
8 Woolmington v DPP [1935] UKHL 1.
9 Jayasena v the Queen [1970] AC 618.