Criminal Law When can an actus reus be a failure?

Actus reus generally involves three elements: (1) a voluntary act or failure to perform an act, (2) that causes, (3) a harm condemned under a criminal statute (Chapter 4: Actus Reus, p. 39).The general basis for imposing liability in criminal law is that the defendant must be proved to have committed a guilty act whilst having a guilty state of mind.

As a basic rule there can be no criminal liability for a failure to act (omission), unless at the time of the failure the defendant was under a legal duty to take positive action (TUFAL, p. 2).

A positive duty to act arises under the following constellations:

(a) Duty arising from statute: Examples are filing tax returns, professionals reporting child abuse or registering firearms.

(b) Duty arising from contract: Examples would be the babysitter, the doctor or the lifeguard.

(c) Duty arising from status relationship: Here there are only three examples: Parent to child, spouse to spouse, and employer to employee.

(d) Reliance: Courts have in recent years moved to recognize a common law duty of care where there is a relationship of reliance between the defendant and the victim (TUFAL, p. 3). An example would be that a defendant voluntarily and deliberately starts rescuing a victim. In that case, he would assume a positive duty to act for the general welfare and that person may be liable for omissions which prove fatal (TUFAL ibid).

(e) Duty due to defendant's prior conduct: Here the defendant creates a peril that causes harm, and subsequently becomes aware of the danger. In a constellation like this he has a legal duty to act reasonably to avert that danger.

2. When examining actus reus in addition to the conduct element we must bear in mind (A) Any required circumstances (B) required consequences and (C) causation issues. Explain and give examples for each separate.

(A) Any required circumstances

In a criminal case, where a defendant can prove by a preponderance of the evidence that any of the circumstances that constitute...

2). An example would be that a defendant car seller thought he was making a false representation in a car sale he was in fact delivering accurate information. His innocence is based on the fact that the circumstance that the representation he made was false was missing. Therefore, the jury should not find him guilty of making a false representation to sell the vehicle.
(B) Consequences:

Usually, more than just a physical act is required to satisfy actus reus requirements. Certain consequences must follow from the action(s) of the accused for liability for the offense in question (see TUFAL, p. 1). If a culpable act did not cause the prohibited consequence, the actus reus cannot be established. For example, for murder it is necessary that death of the victim results from the conduct of the offender.

(C) Causation issues

When the definition of an actus reus requires the occurrence of certain consequences, the prosecution must prove beyond a reasonable doubt that it was the defendant's conduct that caused the harmful result. For example, in murder or manslaughter the prosecution must prove that the victim died because of the conduct of the defendant. In criminal damage it must prove that the property was destroyed or damaged because of an act of the defendant.

3. What is automatism?

Automatism occurs where the defendant performs a physical act but is unaware of what he is doing, or is not in control of his actions, because of some external factor (TUFAL, p. 1). It is sometimes pleaded as a defense (see Actus reus: automatism, p. 25).

If a defendant lacks the will to act or omit an act, there is no "authorship" and thus no actus reus that would cause criminal liability (see Section A1: Actus Reus ibid).

For example, a defendant does not commit criminal damage if his enemies throw him from an upstairs window onto the roof of a car below. Another example would be physical compulsion of the defendant. Such conduct may be cause by uncontrollable reflex…