Mens Rea

Mens Rea

Section 17 creates the more serious wounding offence. Any person who unlawfully and maliciously, by any means, wounds another, causes grievous bodily harm to another, shoots at another, or attempts to shoot at another, with any of the following intents, commits the offence: 

• an intent to maim, disfigure or disable another; 
• an intent to do grievous bodily harm to another; or 
• an intent to prevent or obstruct the lawful arrest or detention of any person. 

Key point: the special feature of section 17 is that the prosecution must prove that the defendant had one of the specified intents set out above. 

Unlike section 17, section 19 does not require the prosecution to prove any specific intent (such as an intent to cause grievous bodily harm). For the purposes of section 19, "recklessness" may also constitute the mens rea—but what the law requires is not that an ordinary person ought to have foreseen the risk, but that the defendant himself actually adverted to the risk of causing injury to another at the time of acting, and nevertheless disregarded that risk and went on to act. In other words, if the defendant genuinely gave no thought at all to the possibility that his conduct might injure another, he may not have the mens rea required for this offence, even if a reasonable bystander would have regarded the risk as obvious. 

For example, A waves a long pole about at random in a crowd, well aware that doing so might strike a bystander, but caring nothing about it—this is recklessness and may contravene section 19. But if A honestly believes that there is no one around him, and is entirely unaware of any risk, then even if his conduct is in fact objectively dangerous, the prosecution may find it difficult to prove the mens rea required by section 19.