The Incident and Applicable Laws

Discuss about the Responsibility and Liability in Criminal Law.

Mehmet leaves in Penrith NSW and one afternoon he is visited by members of the club which he is a member. The club’s president (Fat boy Lyons) sends the club members to Mehmet since he is annoyed by him. Fat Boy Lyons is annoyed with Mehemet because he did not attend another member’s funeral and has not repaid a loan of $10,000 loaned to him by Fat boy Lyons. Mehmet invites Mick and Tyson to the house, and they tell him he has been kicked out of the club. Mick tells Mehmet which he should repay the loan in two weeks failure to which Mick will come back and fix him up.

On their way out Tyson picks Mehmets dog as collateral and tells him, he’ll get back the dog when he repays the money. Mehmet is angered by the action of Tyson and picks up a gun from under his bed, checks if it’s loaded and confronts Tyson and Mick. He aims at frightening them so that they can give him back his dog.  When he walks out of the house he sees Mick and Tyson starting their bikes, and he rushes to catch them. When he rushes to catch them, he stumbles on a rock on the pavement making him drop his gun. When the gun hits the concrete it discharges and hits Mick’s right shoulder. Mike rides away injured and Mehmet turns to Tyson telling him to drop his dog or put a bullet through his head. He fires the gun towards Tyson’s direction but he misses him. As Tyson rides away he speeds through a stop sign 50 meters from where Mehmet is standing and collides with another vehicle. Tyson is thrown of his bike and slams through a post he suffers extensive bruises on his torso and shoulders. He also suffers a broken wrist. Tyson remains in pain for a couple of weeks requiring him to attend follow-up medical consultations. A neighbor who sees the incident reports them and they are all arrested. The issue is what criminal charges will be laid against each person and what charges are likely to be successful.

In this scenario, the rules of NSW are applicable. The law applicable to criminal offenses are NSW Act of 1900. The incident happens in Mehmet’s place which is under the jurisdiction of NSW regulations. In all the charges of the three, it is upon the prosecution to prove beyond reasonable doubt that the accused person caused such a crime. The burden of proof on the prosecution to be beyond the reasonable doubt was stated in the case of Woolmongton vs. DPP.

Requirements for Criminal Liability

For a person to be liable for a criminal offence assault, certain requirements need to be there. This includes the capacity to commit an offense, mens rea, actus reus and absence of defenses to negate the criminal liability[1]. In Australia, criminal responsibility starts at the age of 10. Culpability as to the criminal liability is often left to the judge’s discretion with the help of an expert[2].

Actus reus considers the conduct of a person in crimes which will make a person culpable.[3] The conduct needs to lead to a prohibited consequence or offense. The act or omission is required to be voluntary. If a person does not act voluntary, the elements of conduct may not be satisfactory. Therefore for an action to be voluntary, it involves the performance by conscious choice. An actus reus will involve the performance of a positive act or omission.

The general principle is that for a person to be culpable for a criminal charge, they ought to have mens rea. Mens rea is linked to the intention and the state of mind of a person. Sometimes mens rea is linked to omission leading to negligence. Mens rea at common law focuses on what a person knew, or what they intended to determine the state of mind at the time. In criminal offenses, intention is the most culpable element. In He Kaw Teh v R (1985) 157 CLR 523 intention is described as the desire to bring out a certain act. For a person to also be criminally liable, recklessness is considered as a threshold. Recklessness becomes criminal when a person knows a particular outcome is a probable consequence but goes ahead to do a particular action.

MacPherson v Brown gives another perspective of assault depending on how it may be perceived by the victim on how the result will be in their mind. The actus reus required when no physical contact is involved when the mind of the victim making them get into fear of imminent danger or physical contact[4]. The mens rea thus is dependent on how the victim envisions the consequences of the defendants in their mind. In Wayne v Boldison, one should consider whether the result results in an injury which can be referenced to the facts preceding the injury.

Assault occasioning actual bodily harm is defined as any injury or hurt which makes one uncomfortable or interferes with the health.. The injury or harm need not to be permanent, this definition was given in R vs. Donovan. Under this type of assault, the accused does not have to intend to be reckless; because the harm arises from the action, thus making the accused liable of a criminal offense. This offence is more serious than common assault. This type of assault has to have both actus reus and mens rea present. In Mehmet’s case, we see the mens rea of recklessness to be present, when Mehmet checks whether the gun is loaded. He wants to scare them, but making sure that a gun is loaded could recklessly lead to the harm of Mehmet’s victims. Mehmet was aware that using a gun could lead to dire consequences. He had a pre-meditation on shooting; it does not matter whether it is to scare Tyson and Mick. For a person to be culpable, mens rea and actus reus need to be consistent.

Actus Reus and Mens Rea

In the scenario in regards to Mick, Mehmet does not have the mens rea when the gun hits the ground and shoots hitting Mick. There is no voluntary movement of the muscle, and the act occurring is involuntary. In the case of Fagan vs. Metropolitan Commissioner of police, we see the accused is guilty of an offense of omission despite not having the mens rea. In this case, we see that the accused was asked to stop by a police officer and when he was reversing his car he stepped on the officer’s foot. He was charged with assault, and on an appeal, he was still convicted. Some of the issues raised in this case were whether the prosecution had proven facts which lead to assault. The court held that omission could not amount to an assault, but actus reus and mens rea need to be established at the same time. In the case he had driven on the foot of the officer, and he refused to remove the car, hence at the point battery continued to occur.

In this case, the issue of voluntary or involuntary action could make the charges not succeed. This is because, sometimes if a person does not act voluntary, by movement of their muscles and the consciousness of the mind they cannot be held liable. This was observed in the case of Bratty v AG, where the court defined an involuntary act as an act not done through a person’s;’ consciousness in moving their muscles or by spasms. This case goes to proof actus reus, and it was held that if it’s involuntary then a person will not be guilty of assault. On the other hand, we see recklessness makes a person culpable. In recklessness, when a person takes a subjective risk, knowing the consequence, but goes ahead to perform an act, they will be held liable. In handling weapons and guns, one is usually required to handle them diligently. Failure to which accidents occur, making one culpable for criminal liability. In the scenario, Mehmet loads the gun, with the intention of scaring Mick and Tyson, but in the process, the gun discharges involuntarily. Mehmet is indirectly responsible for assault for loading the gun and making sure that it is in a position which could lead to assault. In this case, Mehmet has the mens rea, although the actus reus is involuntary. If Mehmet proves that he could not have shot at Mick, then his liability could be discharged. In this case, the prosecution has the burden of proving actus reus.

Different Types of Assault

Common assault occurs when a person is in fear of imminent danger or fear of apprehension. Battery occurs when a person applies force to the other without legal excuse, permission or any justification. The definition of assault and battery are seen in the case of Darby v DPP, where assault causes a person to be in fear of apprehension, or immediate infliction and battery is the actual force inflicted upon a person. Psychic assault can be proven to exist through words spoken in threatening circumstances. It needs not to be only words. In Barton v Armstrong it was held that words spoken need to be accompanied by threatening circumstances. In these case threats over the phone amounted to assault. Armstrong had threatened Barton into signing an agreement to purchase all his shares; When Barton sought damages, he said he only signed the agreement because of Armstrong’s assault. In R v Ireland, the defendant made several silent calls to a woman for three months. The woman had decided to end their relation, and he could not accept. In protest he made the silent calls coupled with taking photos of her, appearing in her house and wrote offensive emails and cards to her neighbors. Consequently, she became depressed. When the defendant was charged the court asked whether the psychiatric harm can lead to body injury. In this case, the victim was suffering from depression. As a result, hence the accused was found guilty.

In the case of Mehmet, we see psychic assault where Tyson is in fear of imminent danger. When Mehmet takes the gun, they run fearing that they might get shot. Assault occurs when Mehmet picks his gun and confronts both Tyson and Mick. Assault to Tyson occurs when Mehmet tells him to put his gun down, or he will put a bullet through his head. In Moments case, we particularly see a conditional threat where Mehmet asks Tyson to return his dog, or he will put a bullet through his head. The mens rea and the actus reus exist. Mehmet shoots at Tyson but he misses. Tyson may not be liable prima facie for the injuries occasioned when Tyson gets into an accident, but he could be liable for the psychic assault, leading to the accident. Tyson on the other hand has the burden of proofing that the psychic assault led to his harm eventually, and Mehmet should be held liable for the injuries he occasioned from the accident.

Psychic Assault and Liability

Larcency involves taking a person’s property without their consent. It also involves taking something fraudulently or with intent to deprive the owner permanently. Such action is carried out in bad faith and involves anything that can be deprived permanently, as defined in Llich V R (1987)[5].

Not all property can be stolen in common law. The property being stolen should be capable of being taken away. Therefore, this means that has to be physical and tangible and carry value, even if it’s of minimal value. In R v Morris, switching of labels to pay a lower price was considered theft[6]. The court held that Actus reus existed to complete the offense of theft. One of the arguments was that switching labels did not amount to appropriation. Mens rea will be considered absent when a person genuinely believe they have a lawful claim to the property. The claim ought not to be reasonable but should be done in good faith. In R V Lopatta (1983) the accused took oil worth $5000 from his employer believing money was owed to him. In this case, the prosecution had to exclude the right of a claim beyond reasonable doubt. The court held that an offense is only established when there is intent to defraud and honest claims cannot be considered property offenses. If an owner consents to the removal of property, then larceny is not there.

In the above scenario, we see that Tyson is culpable for larceny because, although he takes Mehmet’s Dog in his presence, he is not taking it in good faith. He is also taking it forcefully attempting to run away with the dog because they immediately start their bikes so they can speed off. The dog has sentimental value to the owner that why he tries to defend it even if it means inuring other people. Tyson also takes it with intent to permanently deprive him of his dog, and Mehmet does not consent. The main test of mens rea is whether Tyson wants to deprive Mehmet. This is evident, because if Mehemet does not fulfill the condition for giving the loan owed to Fat Boy Lyons, Mehmet may not see his dog ever again. Also, this possibility is what makes Mehmet act up. Tyson could use the defense of lawful claim to the dog since Mehmet owes them some money. This claim may however not pass because he does not take the dog in good faith. Also, the sentimental value of Mehmet to the dog may not be equated to the money owed, unless Tyson intends to sell it. In this situation, he takes it as collateral and whether he has a lawful claim or not may be upon the discretion of the court.

Mick can be charged with psychic assault because he threatens Mehment. He threatens Mehment that if he fails to repay the money owed to their group leader; he will come and fix him up himself. In this scenario, it does not matter whether the Act happens, but what is important is whether Mehmet believes that the action will happen and Mehment fears for imminent danger. In this case, actus reus is absent, but the mens-rea is present. The mens rea present meets the threshold of the Amstrong V Barton. The circumstances plus the threatening words make the threat imminent. If anything were to happen to Mehment as a result of the assault, Mick could be culpable. The burden of proofing assault, in this case, will be on the prosecutor and the prosecutor might find it difficult proving consequence of the assault.

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Bratty v A-G for NI [1963] AC 386

Darby v DPP (2004) 61 NSWLR 558; (2004) 150 

Bartson v Armstrong [1976] AC 104.

R v Ire Ilich v R – [1987] HCA 1 – Ilich v R (03 February 1987) – [1987] HCA 1 land [1997] 3 WLR 534 

R v Lopatta (1983) 35 SASR 101

R v Morris [1983] 3 WLR 697