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Criminal Law Q&A: Mens rea


Key Issues

  • Along with the actus reus, mens rea is an essential element of an offence.
  • The statute creating the offence usually states what mens rea category is necessary. If not, courts will determine what mens rea needs to be proved.
  • Case law illustrates how the mens rea elements are to be interpreted.
  • Students must understand this interpretation and apply it logically (together with the actus reus) to the fact scenario.

Common Pitfalls

  • Do not assume the mens rea. The mens rea required is within the statutory provision of the charge (but see also Chapter 3 Midson Questions and Answers: Criminal (LexisNexis, Wellington) 2014).
  • Remember to apply the mens rea to the facts.

Question 1

Edward has been separated from his wife, Claudia, for about nine months. They have a son, Fraser, who is four years old. Because there has been a history of violence perpetrated against Claudia by Edward, she applied for and was granted a protection order. The order extended to Fraser. Since the marriage breakdown, Edward has been seeing a psychiatrist who is treating him for depression and anger management.

Edward has always maintained that he did not pose a risk to Fraser, arguing that it was Claudia’s manipulation and lack of affection for him that led to his violence. He is enraged that he cannot see his son, whom he genuinely loves.

In recent weeks, despite the protection order, Edward has contacted Claudia a few times by telephone. In some of the calls he apologises for his behaviour and asks her to consider giving their marriage another chance; but in other calls he is abusive, swearing at her and telling her she is going to “pay for what she has done”.

One morning, around 7 am while Claudia is eating breakfast, Edward appears in front of her, having broken into the house through the laundry window. Claudia asks him what he is doing and he replies, “I have come for my son. If you don’t let me see him, I am going to make sure you can’t see him either.” Claudia tries to stall Edward by telling him that Fraser has already been picked up and taken to crèche by her mother. When Edward turns to leave the kitchen, Claudia runs from the house screaming for help. When she returns with her neighbour, Marvin, they discover that Edward has killed Fraser in his bedroom by suffocating him with a pillow.

Edward admits to police that he held the pillow over Fraser’s face for five to seven minutes. But he says, “I didn’t want to kill him. I loved him so much. But Claudia wouldn’t listen. It’s all her fault.”

What mens rea elements can be established when Edward is charged in relation to Fraser’s death?

Answer Plan

You will need to consider the following in your answer:

  • Edward’s desired outcome;
  • whether Fraser’s death was a probable consequence; and
  • whether Edward intended to kill Fraser.

Question 2

Tyler is a driver for a courier company. He drives a route through the central business district. He usually has quite a few jobs in the earlier part of the day, but is able to knock off around 3 pm most days. One Wednesday, after finishing work at 3 pm, he goes to visit his friend, Harrison. Harrison is unemployed, but grows cannabis for his own use and to sell to a select group of friends. Tyler knows this, but he does not partake in the drug himself, and has never actually seen what it looks like.

Tyler has a couple of cups of coffee with Harrison before he decides to head home for tea. Just before he leaves, Harrison says, “Oh mate, do me a favour, will ya?”, and hands Tyler a brown package. “Take this to a friend of mine when you’re on your job tomorrow?”

He gives Tyler the address of an inner city apartment and adds, “He’ll give you some cash. You can drop it back to me tomorrow arvo, okay?” Tyler replies, “I’m not doing anything illegal, am I?” To which Harrison says, with a wink, “Don’t worry mate, you’re just the courier, right?”

Tyler takes the package and address, both of which he leaves in his courier van overnight. The next morning he is stopped on his way to work by police, who have a valid warrant to search the vehicle. Harrison’s package is revealed to contain a certain amount of cannabis plant. Tyler is charged with possession under s 7(1)(a) of the Misuse of Drugs Act 1975. Does he have the mens rea for the offence?

Answer Plan

You will need to consider the following in your answer:

  • the mens rea of a charge under s 7(1)(a);
  • whether the mens rea is express or implied; and
  • whether the doctrine of wilful blindness will apply.


For the full sample answers and more see Midson Questions and Answers: Criminal (LexisNexis, Wellington) 2014.