The following chapter describes problems found in the literature concerning the law as it touches the lives of people in the Northern Territory.
The concept of mens rea in criminal law
Mens rea is one of two pillars our criminal law is built upon. The concept of mens rea, Latin for “guilty mind,” allows the criminal justice system to distinguish someone who set out with the intention to commit a crime from someone who did not mean to commit a crime. Mens rea refers to what the offender was thinking and his intent at the time the crime was committed. The concept was first used in the writings of the English jurist Edward Coke between
1860-1865. Coke promoted that an act does not make a person guilty of a crime unless their mind is also guilty.
The phrase first appeared in the Leges Henrici Primi or Laws of Henry I, a legal treatise, written around 1115, that records the legal customs of medieval England, in the description of perjury. Reum non facit nisi mens rea (an act is not necessarily a guilty act unless the accused has the necessary state of mind required for that offence) was taken
from a sermon by St. Augustine, which is also thought to be the source of a similar maxim in Coke's Third Institutes,the first major study of English criminal law: "actus non facit
reum nisi mens sit rea" (the act is not guilty unless the mind is guilty).
Mens rea is the mental element of a crime. It developed from the growing realisation that offenders could not be found guilty of a crime if they had an innocent mind, for example, if they had made a mistake. It is often called “criminal intent” and has become a required
element of most criminal offences in most law systems. In Australia, it is reflected in section 5.6 of the Criminal Code, which creates a rebuttable presumption that to establish guilt, fault must be proven for each physical element of a Commonwealth offence.
In He Kaw Teh v R in1985, Judge Brennan explained: “It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either knows the circumstances which makes the doing of that act an offence; or does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.”
The connection between trauma in the brain, because of disadvantage, and mens rea is seldom mentioned.
The consequence of free-will-skepticism is that men's rea becomes the Achilles heel of criminal law. Mens Rea defences are automatism, duress, mistake, lawful correction, mental illness, necessity, and self-defence. Note that trauma is not on this list. This is a problem. Someone who behaves in an anti-social manner as the result of trauma in the brain may be acting automatically because of that trauma. They may be acting under duress of that
trauma, but such reasoning is not likely to be accepted in courts. Someone who is traumatised is not insane or mentally ill. Hence, the full weight of criminal law comes down on the young and vulnerable, traumatising them further and setting them up for further catastrophe.
This is why Michal Zacharski in Mens rea, the Achilles’ Heel of Criminal Law asks: “How is it possible that contemporary jurisprudence has not developed a more dependable legal means of recognising a defendant’s state of mind?
Image: Mens Rea, True Crime Podcast
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