The first issue to consider in establishing Carla's criminal liability is to examine the elements of the offence she has been charged with, i. e. the actus reus and the mens rea, which must be contemporaneous. The actus reus is the prohibited conduct of the accused and mens rea is the mental element expressly or impliedly required by the definition of the offence charged, which normally relates to the consequences or circumstances, or both, required for the actus reus of the offence. 1
In Section 3 of the Deer Act 1991, the actus reus (prohibited conduct) here is the 'taking' or 'killing' of any deer between the expiry of the first hour after sunset and the beginning of the last hour before sunrise. So, can Carla be convicted with the offence contrary to s3 of the Deer Act 1991? Carla's act of shooting the deer does not mean she killed the deer, as the wording of s3 of the Deer Act specified the 'taking' or 'killing' of any deer within the time stated above. In this case, Carla shot the deer at 3. 50am and the deer did not die until a few hours later.
We are not told the specific time the deer bled to the death, but I'm assuming the deer died after the last hour before sunrise, which means that Carla has not committed the actus reus of the offence. However, Carla did omit to take necessary steps as lie within her power to try to prevent or reduce the risk of harmful consequence of shooting the deer. In my opinion, I believe Carla's omission to summon medical assistance or provide some first aid treatment after discovering that she had shot a deer, may be deemed as the requisite 'act' of the offence, as her failure to act contribute to the killing of the deer.
'If before the harm resulting from his act is complete, he realises what he has done and fails to take such steps to prevent or reduce the risk, and provided he then has the relevant mens rea, he will be criminally liable because his mens rea will be contemporaneous with his culpable omission to act. 2 One of the few cases where an omission to act was sufficient for the actus reus of an offence is R v Pitchley3 where the accused had been given a sum of money to look after for his son. He received it in good faith and placed it in his bank account, where he allowed it to remain after discovering that his son had acquired it dishonestly.
The court held that the accused was under a duty to withdraw the money from his bank account and return it to the owner. He assisted in the retention of stolen money for the benefit of the thief, his son. Omissions are not punished unless there is a duty to act, with the breach of that duty causing the prohibited consequence. In this case, Carla is under a duty to act as a gamekeeper (a person employed to take care of game and wildlife)4, so she had a duty to seek or summon medical assistance for the wounded deer.
For example, in Curtis5where a child died after a relieving officer failed to perform his duty under Victorian law to summon medical assistance to a child off destitute parents. The officer was held liable for manslaughter. Likewise, in Dytham6 where a police officer off duty was found guilty of misconduct in a public office when he did not go to the rescue of a man being kicked to death by a bouncer at a club. Clearly, it was within Carla's power to try to reduce the risk of harm which she had caused, however, it may be argued that her act to reduce the risk of harm might not make any difference to the condition of the deer.
The fact that she shot a deer and failed to take steps to prevent or reduce the harm done, before the harm resulting from her act became complete, establishes the actus reus of the offence. So did Carla have the required mens rea of the offence? The mens rea of s3 of the Deer Act is the 'intentional' killing of any deer within the specified time stated in the Act. 'Intention' implies purpose or even desire, the judiciary and commentators have identified different types of intention. First, direct intent, where it was the accused's purpose or motive to bring about a result.
Thus, in R v Steane7, the accused who assisted the enemy during the war, and his conviction quashed as the court decided he did not intend to assist the enemy, he intended to protect his family who would have been harmed had he not cooperated. Secondly, oblique intent, where the accused does not necessarily desire the result but foresees it as highly probable. Thus in Hyam v DPP8the HL upheld the conviction for murder for the accused that set fire to the victim's house, as she foresaw that death or GBH was highly probable. This approach can be applied to Carla, as she had an oblique intent to the consequence of her act.
In conclusion, based on the elements of the offence, Carla may be criminally liable of an offence contrary to s3 of the Deer Act because her omission to act may be deemed as the requisite act of the offence, and although she may not have had the direct intention to kill the deer, she did have oblique intention, as it was established in the case of Moloney9and Hancock and Shankland10 that foresight of virtual certainty did not constitute intention but was only evidence from which the jury could infer intention, thereby making Carla criminally liable.