Legal Eagle : Accused's mental state plays role in criminal trials

July 24, 2017
The Falmouth Courthouse.

The truism that "an act does not make a man guilty, unless his mind be also guilty" is indeed a profound statement on the criminal law. Most of the serious crimes that occur daily in Jamaica require, apart from the actusreus, a specific state of mind of the accused who commits the crime. The specific state of mind is called the mensrea, while the actusreus is the actual action of the accused.

In Jamaica, like many other parts of the world, many crimes that are not very serious require no mensrea, only proof that the accused committed the offence. These are known as strict liability crimes. A good example of a piece of legislation that provides for strict liability is the Dogs (Liability for Injuries by) Act, which outlines the civil liability of owners of dogs when someone is injured due to dog bites, or the killing of cattle and sheep.

Where the law requires that the prosecution prove the guilty mind of the accused, the burden would be on the prosecution to prove that the accused intended to commit the crime, or foresaw a certain result and proceeded nonetheless. Therefore, the state of mind of the accused is an important ingredient of the crime in a criminal matter. However, a guilty mind does not always mean that the prosecution will secure a conviction, because the accused might have a valid defence in law. For example, he may kill someone intentionally yet not be guilty of murder as the intentional killing was done in self-defence.




Depending on the legislation, the court has to determine what is the mensrea to be proved, especially when there is no word in the legislation which speaks to the mental element. In directing a jury on the mental element of a crime, the judge must be careful to avoid elaboration or paraphrase the intent, thus leaving it to the jury's good sense. In assessing the state of mind of the accused, the court has to determine if the accused were aware of the risk or consequences before he proceeded to act.

Some laws use words such as knowingly, intend to defraud, fraudulently, negligently, recklessly, maliciously, causes, permits, dishonestly, believing, intentionally, wilful, deliberately or other words. These words are intended to point the prosecution to the mental element to be proved. In most cases, the preferred approach is to give these words their ordinary meaning.

Generally speaking, the court must also grapple with whether or not the test to be applied to the state of mind of the accused is an objective test or a subjective test. A case in point is that of self-defence. The law allows a person, who is attacked or who believes he is about to be attacked, to defend himself by using reasonable force that must be proportionate to the attack.

The law on self-defence has been settled for sometime now. The UK Privy Council in the Palmer's case [1971] gave the classic definition of self-defence. A critical part of the mensrea element is that the accused had an honest belief in facts, if true, would justify self-defence and that the accused used force he thought was reasonable to defend against threats or danger, which he honestly believes to exist. This is obviously the subjective test, as the jury must determine the belief of the accused.

It must also be borne in mind that motive to commit the crime is irrelevant in making a determination on the guilty mind of the accused.

The public must be careful in passing judgement on persons who are arrested for alleged criminal activities, as on most occasions what makes the news is a graphic description of the actusreus. However, at trial, the prosecution must also prove the guilty mind or the mensrea, which is hardly ever known in the early stages of any police investigation.

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