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Concurrence ofActus Reus and Mens Rea

As a generał rule, the actus reus and mens rea of a crime must coincide in time. That is, the behavioural and circumstantial elements of the actus reus must occur at the same time as the mens rea requirements are satisfied. Unless there is a moment in time, a scintilla temporis, at which these elements are all present, the crime is not committed. Consider the following illustration:

D is an assassin who has been hired to kiil V. one evening she drives over V’s house in order to shoot him. One the way she is involved in an accident when she collides with cyclist who has suddenly cut in front of her car. Upon getting our of the car, D recognises that the cyclist is V. thinking V is unconscious but alive, she shoots him through the heart. V was already dead.

D has not murdered V. although she may have caused his death (actus reus) by driving into him, when she did so she did not have a present intention to kill. Later when she shot V, she had the mens rea but her behaviour did not cause his death, so could not constitute the actus reus. Thus there is no moment in time at which both the actus reus and mens rea of murder are present.

Neither can an antecedent mens rea be added to a subsequent actus reus in order to support a conviction.

Where the actus reus includes consequences, the requirement for concurrence applies to the behavioural element rather than its consequence. If D deliberately poisons V and V takes some hours to die, the facts that D repents in the meantime will not absolve her of murder.

Conversely, if D is driving and accidentally hits a cyclist the fact that she realises the cyclist is V her enemy, and rejoices while he is dying of his injuries will not make her guilty of a homicide offence. For the purposes of concurrence, the actus reus has already occurred.

The defendant forms the mens rea first but when they commit the actus reus they no longer have the mens rea (usually because they think that they have already performed the actus reus but by mistake they didn’t).

1. If you have a preconceived plan then you need only have mens rea at one particular link in the execution of the plan

2. There was only “one transaction”. Insufficient time had elapsed between the actions of hitting the victim and pushing him off the cliff for the two actions to be treated as having been done on separate occasions. R v Church [1966] 1 QB 59 (no preconceiyed plan) _

Thabo Meli v R

The complex single transaction: Thabo Meli v R [1954] 1 WLR 228 The law is different when the actus reus of an offence occurs after D has mens rea. Here it will sometimes be possible to convict D on the basis that the particular act that caused harm was part of a larger, complex series of actions which should be viewed as a whole, where D has mens rea at some earlier point during that transaction. The classic case is Thabo Meli v R. four D conspired to kill V and dispose of his body. In accirdance with their plan, they struck V on the heaf (with intent to kill). Thinking him dead, they rolled him over a cliff. Infact V was not killed by the blow and died from exposure suffered after falling fown the cliff. Prima facie the act of disposal which caused V’s death was unaccompanied by the mens rea for murder sińce the D believed he was already dead. Nonetheless, Privy Council upheld their convitions for murder. Rather than slicing up the events of the killing into component moments of time and then looking for a scintilla tempoaris at which the actus reus and mens rea coincide. It is hard to disagree with this decision, which represents a genuine exception to the concurrence requirement. The defendants did exactly what they planned to do, and brought about exactly the result they intended. The fact that the manner in which their success occurred was unexpected seems no ground for exculpation. Thabo Meli applies in cases of intentional murder where “it is impossible to divide up a course of conduct into separate acts"

R v Ramsay

The D actions were deliberate and pursuant to a preconceived plan. This feature is crucial to application of Thabo Meli in NZ. In R v Ramsay. D had assaulted and gagged V whose death was caused by one or the other of the acts. However, it appeared that D may not have had the mens rea of murder when gagging V. the CA ruled that the assault and gagging could not be treated as a continuous single course of conduct. There was not a preconceived plan by D to behave the way he did, and his conduct could not be regarded as a series of actions governed throughout by a dominating intention to produce the actus reus. Hence Ds mens rea when he assaulted V could not be combined with actus reus when he gagged her to satisfy the requirements for murder. Although the rationale underlying Thabo Meli might have suggested a different conclusion, the Ca has taken a firm stance against further exceptions to the concurrence principle.