Thesis Statement

Foresight should only suffice as mens rea where an outcome is a virtually certain consequence of a defendant’s act so as to allow for the consideration of moral malevolence of the defendant’s, which is crucial in deciding whether or not the defendant is guilty of murder.

Introduction

Intention- which is essential in one’s attribution of blameworthiness- is defined as foresight of an outcome accompanied by “a desire to bring it about.”[1] The test for mens rea is subjective, implying that the actual state of mind of the D must be evaluated to determine its compliance with the mens rea requirements of the defined offence. No comparison is made with the reasonable man.[2]  Where D foresees a probable risk and proceeds anyway, he or she will deemed to be subjectively reckless. If the D is aware that it is highly likely that he or she will cause death, then he will be deemed to possess the mens rea of murder. In such as case, foresight is construed to mean intention and not evidence of intention.

The substitution of foresight for intent would lead to undesirable outcomes as it would represent an objective approach to a subjective question, especially where a particular result was not subjectively intended by D.[3] Where D is certain, near certain or virtually certain about a given outcome, then the evidence is convincing enough for inference of intent. In respect of cases on indirect intent, common law gives juries the discretion to infer intention from foresight, and to narrow it down to foresight of virtual certainty.

 The Mens Rea Requirement

Direct Intention

 Direct intention is when a person (D) directs his mind towards the commission of a prohibited act, knows that the act is prohibited. Where it is D’s desire to kill or cause grievous bodily harm, the reason for his act is immaterial.^[4] The jury must convict where it is established that D had mens rea for murder when he killed. Where D, intending to kill a person, points a gun at the person and pulls the trigger, and kills that person, the prosecution must prove beyond reasonable doubt that the D had malice aforethought. Direct evidence in the form of witness testimony can establish D’s mens rea. The fact that the chances of the result (death) occurring were low is irrelevant.[5] In such cases, courts do not generally guide the jury regarding the meaning of intention. The jury is simply asked to determine, as a question of fact, whether D intended the outcome.

Indirect Intention

 Indirect intention is a consequence other than that intended by D occurs.[6] If, say, D, intended arson as the outcome and death occurred and it is established the death was foreseeable as a virtually certain outcome of D’s act, then he will be said to have intended to kill. D cannot be said to have made a rational and voluntary choice to cause prohibited harm if he or she did not have knowledge of the risk of harm. It is important to establish what D was thinking, intended or believed when he committed the act, his awareness of the potential risk and his attitude towards the risk.^[7] For murder, it must be established that D’s purpose was to kill or that even though his purpose was not to kill, he foresaw death as a virtually certain outcome of his act.

Equating Foresight of Virtual Certainty with Intention

A person (D) can intend a result that is their main purpose, and an undesired outcome if the consequence is a virtually certain result and is foreseen by D as a virtual certainty. In other words, an indirect intention can be inferred from an outcome which is either a precondition to the realization of the desired goal or a virtually certain spin-off of D’s purpose.^[8] Where D is aware that the realization of his aim will inevitably cause the impugned result absent an improbable superseding event, intention can be inferred. In R v Nedrick,^[9] the Court of Appeal directed the jury to determine the probability of the outcome resulting from the D’s intended act, and whether he foresaw the impugned outcome. The court stated that a jury must be satisfied that the D made out that death would be a virtually certain (in the absence of unforeseen intervention) consequence of his deliberate act, then the jury could infer his intention to kill.

In Hyam v DPP,^[10] the House of Lords equated foresight of a certain outcome to mens rea. The court noted that both states of mind (where the prohibited consequence is D’s goal, and where the D is aware that his act is likely to produce the impugned outcome) create intention. Some courts have treated foresight as merely evidence from which inference of intent can be made, as opposed to the position taken by others that foresight of a virtually certain result suffices as mens rea. There must be foresight of a virtual certainty.^[11]

In R v Moloney,^[12] the court rejected the substitution of foresight of a highly likely outcome for mens rea, and stated that in whenever the jury is given directions in respect of foresight of an impugned result it should ask itself whether death or serious bodily injury in a murder trial was an expected consequence of the act of the D, and whether the D foresaw death as a natural result of his act.^[13] The trial court convicted the appellant, directing the jury that he intended to kill his stepfather because he foresaw death or serious injury as a virtually certain result of his actions. The conviction was quelled by the House of Lords on appeal. The House of Lords held that only intent to kill (not foresight of a certain outcome) would be equated with mens rea.

The case of DPP v Smith^[14] founded the principle that mens rea can be inferred from both the natural and probable outcomes of D’s actions of his actions as an incontrovertible presumption of law irrespective of his state of mind. The degree of risk with which D foresees the undesired consequence constitutes evidence for purposes of inferring mens rea.^[15] In other words, proof of foresight of an inferior degree of risk would be required to negate proof of a superior degree of risk. Courts have attempted to distinguish indirect intention from recklessness. Recklessness entails consciously taking an unjustified risk of harm. In some cases, intention has been interpreted narrowly to overlap with motive, while in others, intention has been construed to encompass recklessness.^[16] Inference of mens rea from foresight of a virtually certain outcome is premised on common experience, because objective factors can be disingenuous. D chooses for the undesirable consequences to happen, or is willing for their occurrence. An inference can be drawn from D’s character or attitude, where D exhibits wanton indifference to human life.^[17]

Consideration of Moral Malevolence

Moral Elbow-room

Whereas equating foresight of virtual certainty with intention provides for certainty, it prevents the consideration of the moral malevolence of D’s acts and may lead to wrongful convictions. Whether foresight of virtual certainty should suffice as mens rea is dependent on the moral justification of D’s primary aim.  Inferring intention from foresight of a virtual certain result prevents the jury from seeing a moral dilemma that may exist in a case of indirect intent, which may lead to a conclusion that the jury is not entitled to found intention.^[18] In the event that on the entirety of the evidence tendered there is leeway for more than one interpretation of D’s intent, courts have maintained that the prosecution must prove D’s intent beyond reasonable doubt.

Inference of mens rea from foresight of virtual certainty prevents the jury from judgment from acknowledging that there are instances where a jury should have the option of restraining the meaning of intent to purpose and narrowing constraining the law regarding intention by appreciating the moral line between the direct intent and the oblique intent.^[19] In murder trials, medical doctors have the defence of necessity. In a murder trial for a doctor who, in giving an injection intended to relieve the patient’s pain, causes the patient’s death, intention will be inferred if it is established the doctor was virtually certain the medication would accelerate death.

Courts have recognised the moral dilemma between D’s main purpose and foresight of virtual certainty and limited the interpretation of intention to purpose. A lack of the jury’s discretion in murder trials involving doctors may result in inference of intention from foresight of virtual certainty, thereby leading to unjust convictions. In R v Woollin,^[20] the trial court directed the jury was directed to infer intention from a substantial risk as opposed to the narrower foresight of virtual certainty. A murder conviction was upheld by the Court of Appeal but quashed by the House of Lords, where it was substituted for manslaughter. The court urged the abandonment of the notion of inferring a state of mind from another. The House of Lords redefined intention to kill as encompassing situations where D’s purpose is to kill or cause grievous bodily harm and where D does not intend to kill but he foresees that outcome as a virtually certain consequence of his act.

Conclusion

An indirect intention can be inferred from an outcome which is either a precondition to the realization of the desired goal or a virtually certain side effect of D’s purpose. Where D is fully aware that the realization of his aim will inevitably cause the impugned result absent an improbable superseding event, intention can be inferred. However, the foresight of virtual certainty prevents courts from considering moral malevolence. Moral considerations are essential in determining murder cases. Giving the jury discretion to limit the interpretation of intention allows for the consideration of moral malevolence, and prevents unjust convictions in murder trial

 Bibliography

Andrew Ashworth, Principles of Criminal Law (6^th edn, OUP, 2009).

Alan Norie, Crime, Reason and History: A Critical Introduction to Criminal Law (2^nd edn, Butterworths 2001).

Findlay Stark, ‘It is Only Words: On Meaning and Mens Rea’ (2013) 72(1) The Cambridge Law Journal 155

James David Ohlin, ‘Targeting and the Concept of Intent’ (2013) 35(1) Michigan Journal of International Law 79 http://repository.law.umich.edu/mjil/vol35/iss1/4 accessed 28 November 2017

Jeremy Hodder, Excusing Crime (OUP 2004).

John E. Stannard, ‘Murder and the Ruthless Risk-Taker’ (2008) 8(2) Oxford University Commonwealth Law 137

Jonathan Herring, Criminal Law Text, Cases, and Materials (3^rd edn, OUP 2008).

Jordan W.P. Tang and Rebecca Mahony, ‘Zaburoni v The Queen (2016) 256 CLR 482’ (2016) 37 ALR 554

Kevin Jon Heller, ‘The Cognitive Psychology of Mens Rea’ (2009) 99(2) Journal of Criminal Law and Criminology 317 http://scholarlycommons.law.northwestern.edu/jclc accessed 27 November 2017.

Kimberley K. Ferzan, ‘Beyond Intention’ (2008) 29(3) Criminal Law Review 1147

Michael Moore and others, ‘Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence’ (2010) 5 Current Legal Problems 147.

Michael Moore, Placing Blame (OUP 2010).

Winnie Chan and others, ‘Four Functions of Mens Rea’ (2011) Criminal Law Journal 381

Table of Cases

DPP v Smith [1960] 3 All ER 161 (HL)

Hyam v DPP [1975] AC 55 (HL)

R v Moloney [1985] 1 All ER 1025

R v Nedrick [1986] 83 Cr App 267 (CA)

R v Woollin [1998] 4 All ER 103 (HL)

 Foot notes