Conceptual Issues In Crime And Criminal Law (Essential Elements Of Crime) PREPARED FOR: AP DR. ZAITON HAMIN PREPRED BY: MOHD ROSHIDI BIN NOOR IC. NO: 770221-03-5137 2012873046 (FULL TIME) SUBMISSION DATE: 10 NOVEMBER 2012 Introduction Forensic accountants are litigation support / expert witness and financial investigations/ financial detectives who audit, investigate and ascertain the accuracy of financial reporting documents, often in connection with anticipated or ongoing legal action.
Forensic accountants may be called upon to testify in court as expert witnesses in criminal and civil litigation and appear in pretrial depositions.
Forensic accountants are expected to integrate their accounting, auditing and investigative skills when conducting investigation into financial crimes. Some basic understanding of the legal knowledge is also indispensable. In the light of these statements assess the following matters: a)The essential legal elements involved in a financial crime and the effect of their presence or absence in such crime.
A person cannot usually be found guilty of a criminal offence unless two elements are present: an actus reus, Latin for guilty act; and mens rea, Latin for guilty mind.
Both these terms actually refer to more than just moral guilt, and each has a very specific meaning, which varies according to the crime, but the important thing to remember is that to be guilty of an offence, an accused must not only have behaved in a particular way, but must also usually have had a particular mental attitude to that behavior.
The exception to this rule is a small group of offences known as crimes of strict liability. The definition of a particular crime, either in statute or under common law, will contain the required actus reus and mens rea for the offence. The prosecution has to prove both of these elements so that the magistrates or jury are satisfied beyond reasonable doubt of their existence. If this is not done, the person will be acquitted, as in English law all persons are presumed innocent until proven guilty – Woolmington v DPP (1935). Actus reus
An actus reus can consist of more than just an act, it comprises all the elements of the offence other than the state of mind of the defendant. Depending on the offence, this may include the circumstances in which it was committed, and/or the consequences of what was done. For example, the crime of rape requires unlawful sexual intercourse by a man with a person without their consent. The lack of consent is a surrounding circumstance which exists independently of the accused’s act. The types of actus reus are as follows: Act or Conduct – Must Be Voluntary
If the accused is to be found guilty of a crime, his or her behavior in committing the actus reus must have been voluntary. Behavior will usually only be considered involuntary where the accused was not in control of his or her own body (when the defense of insanity or automatism may be available) or where there is extremely strong pressure from someone else, such as a threat that the accused will be killed if he or she does not commit a particular offence (when the defense of duress may be available). Omission – Must Be Voluntary
Criminal liability is rarely imposed for true omissions at common law, though there are situations where a non-lawyer would consider that there has been an omission but in law it will be treated as an act and liability will be imposed. There are also situations where the accused has a duty to act, and in these cases there may be liability for a true omission. Act or omission It must first be decided whether in law you are dealing with an act or an omission. Mens Rea Mens rea is the Latin for ‘guilty mind’ and traditionally refers to the state of mind of the person committing the crime.
The required mens rea varies depending on the offence, but there are two main states of mind which separately or together can constitute the necessary mens rea of a criminal offence: intention and recklessness. Intention Intention is a subjective concept: a court is concerned purely with what the particular defendant was intending at the time of the offence, and not what a reasonable person would have intended in the same circumstances. The intention is to aim or desire to bring about a particular consequences and also foresee the certainty of the consequences of his actions.
To help comprehension of the legal meaning of intention, the concept can be divided into two: direct intention and indirect intention. Recklessness Recklessness is the accused fails to think about the obvious consequences of his actions and also the accused consciously takes the risk of harm occurring. In everyday language, recklessness means taking an unjustified risk. Its legal definition has radically changed in recent years. It is now clear that it is a subjective form of mens rea, so the focus is on what the defendant was thinking.
In 1981, in the case of MPC v Caldwell, Lord Diplock created an objective form of recklessness, but this was abolished in 2003 by the case of R v G and another. When discussing mens rea, we often refer to the difference between subjective and objective tests. Put simply, a subjective test involves looking at what the actual defendant was thinking (or, in practice, what the magistrates or jury believe the defendant was thinking), whereas an objective test considers what a reasonable person would have thought in the defendant’s position.
The courts today are showing a strong preference for subjective tests for mens rea. The other types of mens rea are as follows: Negligence – Accused unconsciously takes the risk of harm occurring. Rashness – Accused inadvertently takes the risk of harm. Malignantly/Maliciously – Accused acts wickedly or with evil disposition. Knowledge – Accused has cognition of the circumstances and/or consequences of his actions. The Effect of Their Presence In Such Crime – It can be shown as the following: The Effect of Their Absence In Such Crime – A person cannot be guilty of a crime and no criminal liability. )The concept of motive in any financial crime, its legal status and the perception of forensic accountants on motive in such crime. Motive: meaning – Cause of offender’s action and also the reason that induce offender to act. Motive is the cause that moves people to induce a certain action. Motive, in itself, is not an element of any given crime; however, the legal system typically allows motive to be proven in order to make plausible the accused’s reasons for committing a crime, at least when those motives may be obscure or hard to identify with.
The Concept Of Motive In Any Financial Crime The concept of motive in any financial crime is financial gain and concealment. Forensic accountants must determine the nature of many financial crimes perpetrated by corporations and organizations. These special types of accountants use auditing and investigating to discover crimes such as asset misappropriation, financial statement fraud, corruption and false representation. Forensic accountants use their skills in finance, law and research to discover crimes and possibly defend their findings uring a court trial. Legal Status Of Motive In Criminal Law It is not an essential element in a crime, not a legal requirement and the Courts allow it to be proven to explain why the accused act in that manner especially in murder cases. Motive is usually used in connection with Criminal Law to explain why a person acted or refused to act in a certain way, for example, to support the prosecution’s assertion that the accused committed the crime.
If a person accused of murder was the beneficiary of a life insurance policy on the deceased, the prosecution might argue that greed was the motive for the killing. During the early stages of the investigation it is important to determine the motive. The motive will help direct the investigation. The motive for financial crimes is usually greed, drugs or revenge, hatred, envy/jealousy, love, compassion, thrill/fun, bragging/showing off skills and so on.
Determining the motive requires investigators to conduct a detailed interview with the victim. In other words, motive in criminal investigation the probable reason a person committed a crime such as jealousy, greed, revenge, or part of a theft. While evidence of a motive may be admissible at trial, proof of motive is not necessary to prove a crime. The Perception Of Forensic Accountants On Motive In Such Crime Forensic accountants look at accounting fraud that occurs within companies based on an employee’s opportunity, motives and pressures.
They comprise the use of auditing, accounting and investigative skills to interpret and analyze financial and commercial information suitable for use in legal proceeding. Forensic accountants provide a higher level of assurance, his / her judgments, opinions and findings will be subject to legal scrutiny, more time is spent focusing on the substance and purpose of transactions and their underlying motives, and one’s primary duty is to the Court rather than to a client. Conclusion
Beyond their typical work in the business sector and the investigation of individuals’ assets for various legal purposes, forensic accountants may also examine criminal enterprises to recover illegally obtained money or spot money laundering. In a government confiscation of assets in organized-crime cases, or in tax cases against individuals or companies, the work of a forensic accountant is indispensable. REFERENCE 1. Criminal Law by Catherine Elliot And Frances Quinn, Ninth Edition. 2. Introduction To Principles & Liability In Criminal Law – Elements Of Criminal Liability. . The Process Of Criminal Justice- Lee Chong Fook, Habibah Kiprawi And Che Audah Hassan. 4. Questions & Answers: Criminal Law by Geoff Douglas, 3rd Edition, 5. Articles: Common Clues Of Financial Statement Manipulation by Andrew Beattie (August 22, 2009). 6. Financial Crime Enforcement Network, United States Department Of Treasury. 7. Binder, Guyora. 2002. “The Rhetoric of Motive and Intent. ” Buffalo Criminal Law Review 6 (fall). 8. Candeub, Adam. 1994. “Motive Crimes and Other Minds. ” University of Pennsylvania Law Review 142 (June).
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