Criminal Law Decoded: Grasping Physical And Mental Elements

Aug 17, 2023

Basic Concepts of Criminal Law

To be convicted of a crime is a serious matter for any person. What then are the essential elements of a crime? This short article will shed light on some of the fundamental concepts of Criminal Law, namely:

• What is the physical element of a crime?

• What is the mental element of a crime?
  
  

What is the physical element of a crime?

Section 22A(2) of the Penal Code describes the physical element of a crime in the following terms:

“A physical element of an offence refers to any fact, proof of which is needed to establish liability under that offence, and that is not a fault element of that offence.”

In simple terms, the physical element of a crime (also commonly referred to as the “actus reus”) refers to some conduct on the part of a person that runs afoul of the law.

To illustrate the point: An offender (D) punches a victim (V) in the nose. As a result, V sustains bruising to his nose. D would likely be charged for voluntarily causing hurt to V under Section 321 of the Penal Code.

What are the physical elements of D’s Section 321 offence? The first port of call would be the statute itself – i.e., Section 321 of the Penal Code:

“Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said “voluntarily to cause hurt”.”

As can be observed from Section 321 of the Penal Code, the physical elements of A’s crime are:

• The act of A punching B. This is what legal practitioners sometimes refer to as the “Conduct-Type”^[1] physical element of a crime.

• The bruising to B’s nose – i.e., the hurt caused to B. This is what legal practitioners sometimes refer to as the “Consequence-Type” physical element of a crime.
  
  

What is the mental element of a crime?

Section 22A(1) of the Penal Code describes the fault (or mental) element of a crime in the following terms:

“A fault element of an offence refers to any state of mind, proof of which is needed to establish liability under that offence, including but not limited to intention, wilfulness, knowledge, rashness and negligence.”

In simple terms, the mental element of a crime (also commonly referred to as the “mens rea”) refers to the state of mind of an offender. Put another way, the mental element of a crime simply refers to the ‘guilty mind’ or ‘fault’ of an offender. Generally speaking, a person can only be convicted of a crime if both the physical and mental elements of a crime are satisfied.

Why does the law place a requirement of fault on the part of an offender? The answer is simple, and is best illustrated with a simple example:

Person A places his black-coloured Gucci wallet on a table. Person B also places an identical black-coloured Gucci wallet on the same table. Person A then mistakenly takes Person B’s wallet.

Is Person A guilty of theft? The instinctive answer is no. Why? Because Person A never intended to dishonestly take Person B’s wallet. Simply put, Person A cannot be faulted for taking Person B’s wallet.

However, there are some offences which have no ‘fault’ element. Such offences are known as strict liability offences. This means that only the physical elements of a crime need to be satisfied (see Section 26H of the Penal Code). However, the General Defences in Chapter IV of the Penal Code, including criminal lawyers, are still available to an accused charged with a strict liability offence. Further the accused will have recourse to a further defence of ‘reasonable care’ under Section 26H(4) of the Penal Code.

There are 4 main types of ‘fault’ in the Penal Code, namely: (a) intention; (b) knowledge; (c) rashness; and (d) negligence. These are legal terms of art, and are defined in Sections 26C, 26D, 26E, and 26F of the Penal Code respectively. These sections are set out below:

Section 26C of the Penal Code:

• A person is said to do an act intentionally where that person does an act deliberately.
• A person is said to cause an effect intentionally where that person does anything that causes an effect —
  
  • with the purpose of causing that effect; or
  • knowing that that effect would be virtually certain (barring an unforeseen intervention) to result.
• To avoid doubt, a person does not intend or foresee a result of his acts by reason only of it being a natural and probable consequence of those acts.
• To avoid doubt, nothing in this section prevents a court from relying on a person’s foresight that a certain effect was a probable consequence of his act as a basis to draw an inference that the person caused that effect intentionally.

Section 26D of the Penal Code:

• Whoever does an act with awareness that a circumstance exists, will exist, or is virtually certain (barring an unforeseen intervention) to exist, is said to do that act knowingly in respect of that circumstance.

• Whoever does an act with awareness that an effect will be caused, or is virtually certain (barring an unforeseen intervention) to be caused, is said to do that act knowingly in respect of that effect.

• Where doing an act knowingly is a fault element of an offence, that fault element is also established where that act is done intentionally or with wilful blindness.

Section 26E of the Penal Code:

• Whoever does any act knowing that there is a real risk that a particular circumstance exists or will exist is said to do that act rashly in respect of that particular circumstance, if it would have been unreasonable to have taken that risk.

• Whoever does any act knowing that there is a real risk that an effect will be caused is said to do that act rashly in respect of that effect, if it would have been unreasonable to have taken that risk.

• Where doing an act rashly is a fault element of an offence, that fault element is also established where that act is done intentionally or knowingly.

Section 26F of the Penal Code:

• Whoever omits to do an act which a reasonable person would do, or does any act which a reasonable person would not do, is said to do so negligently.

• Where doing an act negligently is a fault element of an offence, that fault element is also established where that act is done intentionally, knowingly or rashly.

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[1] Of course, such conduct must be done voluntarily. In practice, however, this is not an issue for the majority of cases.