Whole document restricted, see Access Instructions file below for details of how to access the print copy. / The matrix of this thesis is that the determining of liability according to the occurrence of the actual harm which results from the actor's course-of-conduct permits chance to determine criminal liability. The criminal law is posited on the notion that proof of two elements constitutes an offence: a mental element, mens rea and a physical element, the actus reus. Neither element is defined. An analysis of the offences comprising the four categories of offence identified in Part One indicates that - - the mens rea necessary of proof in the majority of these offences is translated loosely to mean intention; - intention is future-oriented and result-focussed; - the determining of liability according to proof both of actual harm and of intention (or, to a lesser degree, recklessness) takes no account of the hiatus which exists in time and in space between the actor's mental element and the actual harm which results; - circumstances beyond the actor's knowledge and control can determine liability and punishment. The object of Part Two is the formulation, within the context of existential philosophy, of a scheme whereby the ability of chance to influence liability and punishment is virtually eliminated. The scheme proposed modifies the doctrine of attempt liability. The analysis of that doctrine in the Second Part indicates that the word "intention", used in its pre-meditative, result-focussed and future-oriented sense, refers to the offence the actor has in mind. Liability is incurred when the actor makes sufficient progress in pursuit of that intention to be dangerously close to completion. The modified theory of attempt liability in Part Two reduces the ability of chance to determine liability in these ways: - the actor's intention to commit an offence is evidenced in her progress in her course-of-conduct to a stage dangerously proximate to completion whereby the fear of the imminent occurrence of actual harm is engendered in the hypothetical, objective bystander; - the actor's liability is dependent upon proof of her knowledge (or belief) and control of the circumstances immediately surrounding the initiation and execution of that course-of-conduct. Intention is evidenced in a course-of-conduct dangerously close to completion whereby the fear of the imminent occurrence of actual harm is engendered in the hypothetical, objective bystander. Existentially irrelevant, intention resumes its former, presumptive role. Liability is established on proof of mental elements both existentially relevant and contemporaneous with that course-of-conduct. The ability of chance to determine liability and punishment is virtually eliminated.
| Identifer | oai:union.ndltd.org:ADTP/275427 |
| Date | January 1991 |
| Creators | Garrett, Elisabeth Helena |
| Publisher | ResearchSpace@Auckland |
| Source Sets | Australiasian Digital Theses Program |
| Language | English |
| Detected Language | English |
| Rights | Whole document restricted. Items in ResearchSpace are protected by copyright, with all rights reserved, unless otherwise indicated., http://researchspace.auckland.ac.nz/docs/uoa-docs/rights.htm, Copyright: The author |
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