Cards stolen from wallet, to report?

coylemj

Claw Hammer wrote: »

He intended to kill which is the means rea for murder. He didn't commit the actus reus because the actus reus is the "unlawful killing". His killings were lawful therefore he never committed the actus reus. Had the killings not been lawful he would have committed murder.

In a self defence situation ('him or me'), you can intend to kill someone without the presence of mens rea.

Say a would-be assassin (mistaking me for someone else) approaches my car with a loaded gun and takes a pot shot at me but misses. I get out of the car and manage to grab the gun. He attempts to retrive the weapon and he's a bigger guy than me meaning that in all probability, he will get the gun back in a wrestling match. So I shoot him dead, based on the fact that I am 100% certain that if he gets the gun back, he will kill me. No mens rea there in my book.

Pierrepoint didn't have the mens rea for murder, it was judicial homicide and the state paid him to do the job. His conscience was clear because he was acting on a warrant signed by a judge and the legislation which prescribed death by hanging for murder.

Claw Hammer

coylemj wrote: »

In a self defence situation ('him or me'), you can intend to kill someone without the presence of mens rea.

Say a would-be assassin (mistaking me for someone else) approaches my car with a loaded gun and takes a pot shot at me but misses. I get out of the car and manage to grab the gun. He attempts to retrive the weapon and he's a bigger guy than me meaning that in all probability, he will get the gun back in a wrestling match. So I shoot him dead, based on the fact that I am 100% certain that if he gets the gun back, he will kill me. No mens rea there in my book.

Pierrepoint didn't have the mens rea for murder, it was judicial homicide and the state paid him to do the job. His conscience was clear because he was acting on a warrant signed by a judge and the legislation which prescribed death by hanging for murder.

In self defence you have the mens rea for murder but there is a defence available. pireepoint had the mens rea for murder in that he intended to kill. The lawfulness of the killing is part of the actus reus, not the mens rea so he couldn't have committed murder since he didn't do any act which amounted to murder.

coylemj

Claw Hammer wrote: »

In self defence you have the mens rea for murder but there is a defence available. pireepoint had the mens rea for murder in that he intended to kill.

Doesn't mens rea literally mean 'guilty mind' i.e. you know that what you're doing is wrong?

You seem to be conflating mens rea with simple intent.

Claw Hammer

coylemj wrote: »

Doesn't mens rea literally mean 'guilty mind' i.e. you know that what you're doing is wrong?

You seem to be conflating mens rea with simple intent.

The mens rea is the state of mind not guilty mind. It means the intent to do the thing not the intent to commit the offence.
Both the mens rea and the actus reus must be present at the same time for the offence to be committed. I can intend to kill someone and shoot the, but if they are already dead, i cannot commit the actus reus and I have not committed murder. Pierrepoint always intended to kill his victims and did in fact kill them. The actus reus wasn't present because the killings were lawful.

coylemj

Claw Hammer wrote: »

The mens rea is the state of mind not guilty mind.

Every source you care to check says that mens rea translates to 'guilty mind'. It's a literal translation from Latin to English, not a legal interpretation.

Cornell Law School good enough for you?

Mens Rea refers to criminal intent. The literal translation from Latin is "guilty mind."

https://www.law.cornell.edu/wex/mens_rea

If you're telling us otherwise, I have a serious doubt that you know what you're talking about.

Claw Hammer

coylemj wrote: »

Every source you care to check says that mens rea translates to 'guilty mind'. It's a literal translation from Latin to English, not a legal interpretation.

Cornell Law School good enough for you?

Mens Rea refers to criminal intent. The literal translation from Latin is "guilty mind."

https://www.law.cornell.edu/wex/mens_rea

If you're telling us otherwise, I have a serious doubt that you know what you're talking about.

Guilty mind simply means the intent to carry out the act which if matched with the corresponding act produces the crime. It is not the intent to commit the crime it is simple a putative element of a crime.

coylemj

Claw Hammer wrote: »

Guilty mind simply means the intent to carry out the act which if matched with the corresponding act produces the crime.

Rubbish.

GM228

coylemj wrote: »

Rubbish.

Claw Hammer is correct, it is the intent to carry out an act, not the intent to commit a crime.

Whilst we always say mens rea is simply the "guilty mind", this is not entirely correct, it is in fact (in law) no more than an act which is done "knowingly".

ohnonotgmail

Claw Hammer wrote: »

I said he didn't have the actus reus for murder but he had the mens rea for murder.

he didnt have the mens rea for murder as he had not intention of committing murder. what he did is not murder. you are (deliberately?) ignoring the fact that it must be unlawful killing for it to be considered murder. what he did was not unlawful.

hierro

As a little aside, related to value. What is the relevant value for the purpose of a theft charge in the following scenario.

A piece of equipment, which is purchased from the manufacturer at €900 and retails at €1200, is stolen from the retailer.

coylemj

GM228 wrote: »

Whilst we always say mens rea is simply the "guilty mind", this is not entirely correct, it is in fact (in law) no more than an act which is done "knowingly".

An act can be done ‘knowingly’ but innocently, such that it does not constitute a crime. Even though the same act, in other circumstances, would constitute a crime.

I’m at the checkout in a supermarket. Included in my shopping are four oranges which are priced at 50c each. The checkout operator tells me that oranges are on special offer today at 5 for €2 and tells me that I can take an orange from the shelf on my way out.

On my way out of the store, I help myself to an orange. Another customer who’s behind me but who has no similar entitlement helps himself to an orange and walks out.

I say that mens rea is present in the case of the other guy but not me. Because although we both carried out exactly the same physical act, I had the entitlement that he did not. He committed a crime, I did not.

What you and claw hammer are saying is that mens rea was present in both cases.

SetOverSet

The Actus Reus is the physical element of the crime, the act or conduct, although it can be more than that. It can be an omission or even a state of affairs such as being in possession, for example.

The prosecution must prove that the accused committed the Actus Reus while in a particular state of mind. That particular state of mind is the Mens Rea. States of mind that might constitute the necessary Mens Rea for a criminal offence (either separately or together) are intention (direct or oblique), knowledge, recklessness, and negligence.

The criminal offence of Theft, for example is a statutory offence, created by S4(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001. That section states that:

"Subject to section 5, a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner I]Actus Reus[/I and with the intention of depriving its owner of it. I]Mens Rea[/I"

To be guilty of theft, both elements of the crime must be present. The appropriation of the property is not enough. The prosecution must also prove the intention to deprive its owner of it.

Similarly, in murder, the Actus Reus is the unlawful killing of another and the Mens Rea is the to intention to kill, or cause serious injury to, some person. The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted (S4(2).

SetOverSet

coylemj wrote: »

... I’m at the checkout in a supermarket. Included in my shopping are four oranges which are priced at 50c each. The checkout operator tells me that oranges are on special offer today at 5 for €2 and tells me that I can take an orange from the shelf on my way out.

On my way out of the store, I help myself to an orange. Another customer who’s behind me but who has no similar entitlement helps himself to an orange and walks out.

I say that mens rea is present in the case of the other guy but not me. Because although we both carried out exactly the same physical act, I had the entitlement that he did not. He committed a crime, I did not.

What you and claw hammer are saying is that mens rea was present in both cases.

I would say that in your example you have neither the Actus Reus nor the Mens Rea to constitute theft. You have not dishonestly appropriated property without consent, nor did you have the intention of depriving the owner, whereas both elements are present for the other person.

Peregrinus

Claw Hammer wrote: »

It is clearly the case. To appropriate is to treat something as ones own. Picking up the wallet is treating it as ones own even temporarily.

Nonsense. It is easy to point to common examples of people picking things up in a way that is neither an explicit nor an implicit assertion of ownership.

- I see a wallet lying in the street. I pick it up in order to see if their is evidence of ownership inside (as their commonly is in wallets) so that I can try to return it to the owner.

- Clothes are displayed for sale in a shop. I pick up a garment to see if it is my size.

- Litter has been dropped in the street. Being the civic-minded type, I pick it up to put it in the bin.

- I am a checkout operator. I pick goods out of the customer's basket in order to pass them in front of the barcode reader to ring them up for sale.

- A lady drops her handkerchief in front of me. I pick it up to return it to her.

- An elderly or infirm person arrives in the restaurant to join me for a meal. I stand up, pick up a chair and pull it out so that they can sit on it.

These examples could be multiplied. Any argument that simply picking up an item, in and of itself, is an implicit assertion of ownership of the item would be laughed out of court. To implicitly assert ownership I need to do something which is inconsistent with the rights of the true owner.

Claw Hammer

Peregrinus wrote: »

Nonsense. It is easy to point to common examples of people picking things up in a way that is neither an explicit nor an implicit assertion of ownership.

- I see a wallet lying in the street. I pick it up in order to see if their is evidence of ownership inside (as their commonly is in wallets) so that I can try to return it to the owner.

- Clothes are displayed for sale in a shop. I pick up a garment to see if it is my size.

- Litter has been dropped in the street. Being the civic-minded type, I pick it up to put it in the bin.

- I am a checkout operator. I pick goods out of the customer's basket in order to pass them in front of the barcode reader to ring them up for sale.

- A lady drops her handkerchief in front of me. I pick it up to return it to her.

- An elderly or infirm person arrives in the restaurant to join me for a meal. I stand up, pick up a chair and pull it out so that they can sit on it.

These examples could be multiplied. Any argument that simply picking up an item, in and of itself, is an implicit assertion of ownership of the item would be laughed out of court. To implicitly assert ownership I need to do something which is inconsistent with the rights of the true owner.

Picking up an item is the behaviour of an owner. The test in theft is whether it is done dishonestly. Appropriation it self is not the crime. The checkout operator picking up the item is doing it as owner or with the permission of the owner. There is a short lived appropriation for a legitimate purpose which is honest.
There is no question of being laughed out of court. Nobody would be charged with a dishonest appropriation in circumstances where the appropriation was clearly honest.
What gets people thrown out of court is failure to prove the elements of the offence and the defendant gets off. Valentine, where there was a failure to give evidence of ownership, beig an example. In drink driving cases the successful defences alays turn on a failure to give evidence that the actus reus of the offence was committed.

coylemj

GM228 wrote: »

Claw Hammer is correct, it is the intent to carry out an act, not the intent to commit a crime.

Whilst we always say mens rea is simply the "guilty mind", this is not entirely correct, it is in fact (in law) no more than an act which is done "knowingly".

Cornell Law School disagrees. Emphasis is mine.

The prosecution typically must prove beyond reasonable doubt that the defendant committed the offense with a culpable state of mind.

The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct

https://www.law.cornell.edu/wex/mens_rea

Claw Hammer

coylemj wrote: »

Cornell Law School disagrees. Emphasis is mine.

The prosecution typically must prove beyond reasonable doubt that the defendant committed the offense with a culpable state of mind.

The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct

https://www.law.cornell.edu/wex/mens_rea

There is a differrent mens rea for every crime. What Cornell is saying is no more than the intention of the alleged defendant must be looked at. However, it is also the case that the actus reus must have been committed as well. there is an intention to do a particular act, that may or may not mean guilt. The actus reus for manslaughter and murder is the same, the mens rea is different.

Peregrinus

Claw Hammer wrote: »

Picking up an item is the behaviour of an owner . . .

It really isn't., as the examples already given demonstrate. To appropriate an object you have to do something consistent only with being the owner, or inconsistent with the rights of the true owner.

Picking up an apple from the shelf in the supermarket and putting it in your shopping basket: not appropriation. Taking a bite out of it: appropriation.

Picking up a wallet found lying in the street: not appropriation. Failing to take steps to return it to its owner; taking money out of it; finding it empty and putting your own cards and cash into it: appropriation.

As you point out, appropriation is not in every case the offence of theft; the offence has other elements as well as appropriation. But many actions which are not the offence of theft are also not appropriation. Simply handling an object that does not belong to you is not, without more, in itself an appropriation of that object.

Claw Hammer

Peregrinus wrote: »

It really isn't., as the examples already given demonstrate. To appropriate an object you have to do something consistent only with being the owner, or inconsistent with the rights of the true owner.

Picking up an apple from the shelf in the supermarket and putting it in your shopping basket: not appropriation. Taking a bite out of it: appropriation.

Picking up a wallet found lying in the street: not appropriation. Failing to take steps to return it to its owner; taking money out of it; finding it empty and putting your own cards and cash into it: appropriation.

As you point out, appropriation is not in every case the offence of theft; the offence has other elements as well as appropriation. But many actions which are not the offence of theft are also not appropriation. Simply handling an object that does not belong to you is not, without more, in itself an appropriation of that object.

handling the object is an act of temporary appropriation. Picking up an object which is not yous is contrary to the rights of the owner unless the owner has given you the right to pick it up for sampling purposes. picking up an object which is laid out in a shop for viewing purposes is not appropriation if the object has been specifically placed there for you to view and inspect. Putting the object into you bag and moving away from the display area is appropriation.

Peregrinus

Claw Hammer wrote: »

handling the object is an act of temporary appropriation. Picking up an object which is not yous is contrary to the rights of the owner unless the owner has given you the right to pick it up for sampling purposes. picking up an object which is laid out in a shop for viewing purposes is not appropriation if the object has been specifically placed there for you to view and inspect. Putting the object into you bag and moving away from the display area is appropriation.

"Temporary appropriation" is a novel concept. There's no such thing as temporary ownership; if your rights over something are temporary in nature then, whatever else they are, they are not the rights of ownership. So asserting or exercising a temporary right over something is not, without more, an appropriation.

If what you do is not a claim of ownership, and if it is not inconstent with the firhtgs of the true owner, then it is not appropriation. Picking up a wallet that you find in the street is not a claim of ownership, and it is not inconsistent with the rights of the owner. It's not an appropriation.

Claw Hammer

Peregrinus wrote: »

"Temporary appropriation" is a novel concept. There's no such thing as temporary ownership; if your rights over something are temporary in nature then, whatever else they are, they are not the rights of ownership. So asserting or exercising a temporary right over something is not, without more, an appropriation.

If what you do is not a claim of ownership, and if it is not inconstent with the firhtgs of the true owner, then it is not appropriation. Picking up a wallet that you find in the street is not a claim of ownership, and it is not inconsistent with the rights of the owner. It's not an appropriation.

Temporary appropriation is the meaning it has in the Theft Act. Taking control of property even for a short period is appropriation for the purpose of the Theft Act. The key issue is the honesty or otherwise of the action.
DPP v Gomez (1993) 96 Cr App R 359 confirmed that “appropriation” does not require adverse interference with or usurpation of the rights of an owner.

GM228

coylemj wrote: »

What you and claw hammer are saying is that mens rea was present in both cases.

That is not what I am saying, my post was specifically in relation to the following post:-

Claw Hammer wrote: »

Guilty mind simply means the intent to carry out the act which if matched with the corresponding act produces the crime. It is not the intent to commit the crime it is simple a putative element of a crime.

…to which you stated it was “rubbish”, by that post the discussion on mens rea seems to have turned into a general discussion as opposed to one specific to murder (if not than I apologise), I was speaking of mens rea in general, and as CH rightly points out every crime has its own mens rea, mens rea can be established by intention, recklessness, negligence or criminal negligence, and of course there’s the whole issue of strict liability offences where mens rea does not apply.

coylemj wrote: »

Cornell Law School disagrees. Emphasis is mine.

The prosecution typically must prove beyond reasonable doubt that the defendant committed the offense with a culpable state of mind.

The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct

https://www.law.cornell.edu/wex/mens_rea

We are discussing Irish law right?

And how does it disagree? The Ivy League Law schools deal with US law, remember "culpable" or "guilty" state of mind does not equate to a knowledge of the law, it is more to do with acting intentionally, and so far as I know it has been held in the US courts that knowledge of the crime is not an ingredient of mens rea, in fact it even says so in your link:-

Cornell Law School wrote:

The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct; however, a defendant need not know that their conduct is illegal to be guilty of a crime. Rather, the defendant must be conscious of the “facts that make his conduct fit the definition of the offense.”

As I said mens rea in Irish law is the intent to carry out an act, not necessarily the intent to commit a crime (remember mens reas can be subjective, objective or a mixture of both), the The People (Attorney General) vs Thornton [1952] IR 91 High Court case is often wrongly cited as authority that you must know what you were doing is a crime, the Melling vs O'Mathghamhna [1962] IR 1 Supreme Court case clarified it is the intent to carry out an act.

The confusion stems from the full Latin saying “actus non facit reum nisi mens sit rea” which means an act does not make a person guilty unless the mind is also guilty, we can thank Sir Edward Coke for adopting the Latin phrase which in it’s strictest translation means there must be a “guilty mind”, in Institutes of the Laws of England (1797) Coke basically describes mens rea as no more than an element of fault or intent, a requirement that you must know what you are doing is specifically a crime would be at odds with the doctrine of ignorantia juris non excusat.

GM228

Claw Hammer wrote: »

Temporary appropriation is the meaning it has in the Theft Act. Taking control of property even for a short period is appropriation for the purpose of the Theft Act. The key issue is the honesty or otherwise of the action.
DPP v Gomez (1993) 96 Cr App R 359 confirmed that “appropriation” does not require adverse interference with or usurpation of the rights of an owner.

The Gomez case is a UK case, in Irish law there is a requirement to usurps or adversely interfere with the proprietary rights of the owner of the property, however there is no requirement to prove that the accused person intended to permanently deprive the complainant of their property.

GM228

Claw Hammer wrote: »

It has long been established that property has to be owned by a know individual. DPP v. Valentine [2009] 4 IR 33

That is not correct, an owner ought to give evidence as to lack of consent where they are identifiable, but, they don't have to be identifiable.

The Valentine case which was a High Court case stated:-

Valentine wrote:

So far as the obligation to prove the property was owned and that the appropriation was without the owner’s consent it is the case of course that from time to time there may be difficulties in establishing an owner, the pickpocket in the crowded street being an obvious example and there the jury or judge will have to consider whether the evidence is such that the property in question is proved to be owned by the person unknown and that an absence of consent can be inferred

Property can be owned by a "person unknown" and any absence of consent can be inferred.

Claw Hammer wrote: »

The Valetine case has established that evidence of ownership must be established. It is not sufficient to say that A is the owner. Positive evidence must be offered because it is an element of the actus reus of the offence. In the event of a dispute oer ownership the prosecution would have to give evidence that either b or C is the owner to the exclusion of any possible claim to the item by A.

Again this is incorrect, positive evidence is not required, circumstantial evidence is enough. There is a previous Court of Criminal Appeal case (the position of which the High Court Valentine case could not change) confirming that ownership does not need to be established and direct evidence was not required, in The People (DPP) vs O’Hanlon (Unreported, Court of Criminal Appeal, 1st February, 1993) it was held:-

O'Hanlon wrote:

Indeed it is probably likely that it is not an essential proof at all to establish that the goods were the property of any particular person or firm; the essential proof is that they have to be shown to have been stolen goods…the court would wish to say that the proof that goods are stolen may be proved by circumstantial evidence and on occasion there may be no direct evidence such as from the actual owner or the thief but each case must depend on its particular circumstances

In 2015 and 2017 the High Court re-affirmed the position of the O'Hanlon case and held ownership and a lack of consent can be made out by circumstantial evidence.

In the DPP vs Cooney [2015] IEHC 239 case which considered both the O'Hanlon and Valentine cases it was held:-

Cooney wrote:

It seems to me that the evidence in this case goes significantly further. When challenged, the defendant gave mutually contradictory accounts of his possession of the bicycle, the latter of which was clearly highly suspicious i.e. that he had purchased the bicycle from an unknown youth for €30. In addition to that, there was objective evidence that the bicycle was highly likely to have been stolen at some point having regard to the fact that the identification markings on it had been deliberately obliterated.

In my view, there was more than ample evidence of a circumstantial nature before the District Court which could justify any reasonable person in coming to the conclusion that the property in question was in fact stolen. To borrow the words of O’Flaherty J., that fact does not have to be proved to a mathematical certainty and therefore there is no requirement for “irrefutable” evidence as suggested by the first question. The standard of proof is beyond a reasonable doubt, not beyond a shadow of a doubt

Later in the Minister for Justice and Equality vs Stawera [2017] IEHC 420 case the Velentine principle was more or less rejected in relation to consent of the owners:-

Stawera wrote:

Irish law may require that, where identifiable, an owner ought to give evidence as to lack of consent, although that is by no means clear in the Valentine judgment. Indeed, one can imagine a prosecution for robbery/murder where for obvious reasons an identifiable owner cannot give evidence of lack of consent. The proof of lack of consent will come from the circumstantial evidence