3 minute read
‘Mens rea’ dictates that “there can be no crime without vicious will” – as anyone who has watched Legally Blonde would know. In the Australian legal system, common law states that there are two components in every criminal offence.
- Mens rea – an evil intention or a knowledge of the wrongfulness of the act
- Actus reus – the physical element of the crime which may be conduct, a result of conduct or a circumstance in which conduct occurs¹
Mens rea is one of the most fundamental protections in criminal law. Our legal system believes it is an important principle that a person generally should not be criminalised for committing a physical act without an accompanying evil intention. This principle reflects the idea that it is “generally neither fair, nor useful, to subject people to criminal punishment for unintended actions of unforeseen consequences unless these resulted from an unjustified risk (i.e. recklessness).”²
All offences require proof of one or more physical elements and most offences require proof of a fault element. Because of the different physical elements of an offence, ‘fault elements’, which has the same meaning as ‘mental element’ or mens rea but is more inclusive in its implied reference, is also used for more accuracy. Fault elements can be divided into four parts; intention, knowledge, recklessness or negligence³.
In many criminal trials, the prosecution must provide evidence to prove that the defendant both broke the law and had the knowledge or intention to commit the crime. However, this does not apply to all criminal matters, in particular traffic offences.
Many traffic offences are considered strict liability offences, which means that it is sufficient to prove that the act occurred and it is unnecessary to prove intent. In such cases, whether or not an offender meant to commit the offence is irrelevant. For strict liability offences, lawyers are unable to argue that the offender had no knowledge or intentions of committing the offence because what counts is whether the offence was committed.
In such cases, the magistrate only needs to be sure that the offender:
- did what the prosecution alleges was done e.g. speeding,
- have no lawful excuse or defence for doing so4.
However, there is a defence of reasonable mistake available5. This means that it is sometimes possible for strict liability traffic offences to be refuted if the offender can successfully argue and provide evidence to show that they were genuinely mistaken and did not know they were committing the offence.
Some common strict liability traffic offences include driving under influence, speeding, failing to wear a seatbelt, drive while disqualified, drive without being licenced and use unregistered vehicle6.
If you do find yourself having to go to court for a traffic offence, one way to show the magistrate that you have learnt from your mistake includes taking a traffic offender program such as our Traffic Offender Intervention Program. Taking a traffic offender program does not guarantee that your sentence will be reduced but can be a factor in the magistrate’s decision amongst other mitigating factors.
Mitigating factors are special circumstances or conditions that can influence a magistrate’s decision on the sentence. In our podcast with Legal Aid criminal lawyer, Joe Harding, we discuss mitigating factors which can include past offences, offender’s cooperativeness and more.
Want to find out more? Check out what lawyer Joe Harding has to say about common traffic offences on our podcast Behind The Road Toll.
Disclaimer: This article does not constitute legal advice. Please seek a professional lawyer for legal advice.
Sources: (1) (2) (3) (4) (5) (6)
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