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4. Coincidence of Actus Reus and Mens Rea
The defendant must possess the necessary mens rea at the time the actus reus is committed.
For example, if Dan drives to Pat's house intending to murder him, but en route runs over a
pedestrian and kills him, Dan cannot be charged with murder even if the pedestrian he
happened to kill was Pat. Dan had the mens rea of murder, and committed the actus reus, but
these did not coincide in time. However, the courts are reluctant to allow criminals to take
unfair advantage of this doctrine.
(a) the actus reus comes before the mens rea
Sometimes the defendant will argue that he lacked mens rea when he first committed the
offence. In such cases the court will rule that the actus reus is a "continuing act", and that the
defendant is guilty if he had the mens rea at any time during the continuing act.
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Fagan v Metropolitan Police Commissioner (1968) CA
Fagan had been instructed by the police to pull in to the roadside. He did so, but accidentally
drove the car onto a police constable's foot. The constable shouted: "Get off. You are on my
foot." However, Fagan shouted: "**** you, you can wait." and turned off the engine. He
was convicted of assaulting a police constable in the exercise of his duty, but he appealed.
His appeal was rejected.…read more