Mens Rea in Statutory Offences
| Author | A. Laurence Polak |
| Published date | 01 July 1963 |
| DOI | 10.1177/0032258X6303600704 |
| Date | 01 July 1963 |
| Subject Matter | Article |
A.
LAURENCE
POLAK,
B.A.
MENS
REA
IN
STATUTORY
OFFENCES
The decision
of
the Judicial Committee of the Privy Council in
Lim Chin
Aik
v. The Queen (1963), 2 W.L.R. 42, though not in itself
binding on the English courts, adds weight to the considerable body
of law on this vexed question: To what extent and in what kind
of
cases is it necessary, in order that the prosecution may secure a
conviction, to prove mens
rea-i.e.
guilty knowledge or guilty intent
on the part of the accused in doing the act which resulted in the
prosecution? (The case was briefly referred to in Recent Judicial
Decisions in our April issue.)
The accused was convicted for contravening a certain section of
the Singapore Immigration Ordinance, by remaining in the State,
which he had entered though he had been prohibited from entering
by an order made by the Minister under another section. At the
trial there was no evidence from which it could properly be inferred
(1) that the order had come to the notice or attention
of
the accused,
or (2) that he had guilty knowledge or intent in remaining in the
State.
It
was shown that the definition of the offence, for which he
was convicted, did not require it to have been committed
"knowingly" or
"without
reasonable excuse." In many cases (as
will be shown below) the omission of such or similar words, in a
statute or statutory instrument, has been held to imply that the
prohibition was absolute, and that the offence could be committed
without proof
of
mens rea. In this case, however, the Privy Council
held that the omission
of
such or similar words could not be taken
to oust the fundamental rule generally applicable to criminal offences.
Common Law
That fundamental rule, though it goes back to the very roots of
the common law, has been clearly formulated in the Institutes
(Book 3 Ch. 6) of Sir Edward Coke, C.J. (1628) in the
maxim-
actus nonfacit reum nisi mens sit
rea-that
is, " the act (alone) does
not make a man guilty unless he has a guilty
intention"
-unless
he has a blameworthy state
of
mind. One elementary example is
an (apparently) guilty act arising from a mistake of fact. The man
who, in a cloakroom, takes and carries off somebody else's over-
coat from a peg, reasonably and bonafide believing it to be his own
garment, is not guilty
of
larceny; the
"guilty
intention"
was
July 1963 322
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