Crimes can be broken down into elements which the prosecution must prove beyond a reasonable doubt. With exceptions, every crime has at least three elements: a criminal act, also called actus reus; a criminal intent, also called mens rea; and concurrence of the two. The term conduct is often used to reflect the criminal act and intent elements. ‘conduct’ means an action or omission and its accompanying state of mind”
Criminal act, or actus reus, is generally defined as an unlawful bodily movement or action. The criminal statute, or case in jurisdictions that allow common-law crimes, describes the criminal act element.
One requirement of criminal act is that the defendant perform it voluntarily. In other words, the defendant must control the act. Involuntary actions are not criminal: reflexes, convulsions, bodily movements during unconsciousness or sleep, conduct during hypnosis or resulting from hypnotic suggestion, or a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. One voluntary act is enough to fulfil the voluntary act requirement.
Thoughts are a part of criminal intent, not criminal act. Thoughts cannot be criminalized.
An exception to the requirement of a criminal act element is omission to act. Criminal prosecution for a failure to act is rare, however under certain specific circumstances, omission to act can be criminalized.
A duty to act can be based on a contract between the defendant and another party. The most prevalent examples would be a physician’s contractual duty to help a patient or a lifeguard’s duty to save someone who is drowning. Keep in mind that experts who are not contractually bound can ignore an individual’s pleas for help without committing a crime, no matter how morally abhorrent that may seem.
The Commonwealth Criminal Code: A guide for Practitioners
BE AWARE: “The provisions of the Code are not constitutionally entrenched and any of them can be overridden by Parliament in legislation which departs specifically from the structure of criminal responsibility set out in Chapter 2. Since the object of the Code is to provide a clear and unambiguous statement of fundamental principles of criminal responsibility it is anticipated that instances where Chapter 2 is overridden will be rare and the intention of the legislature to override its provisions, in those rare instances, will be explicit and unmistakeable”
Elements All offences require proof of one or more physical elements. Most offences will require proof of a fault element – intention, knowledge, recklessness or negligence – with respect to one or more of their physical elements.
Some impose strict or absolute liability with respect to one or more physical elements and there is a significant number of minor offences which impose strict liability with respect to all physical elements, dispensing with any requirement of proof of fault.
A crime/offence consists of physical elements and fault elements.
If the prosecution establishes the necessary elements, there is an “offence”, though liability may be avoided by reliance on one of the defences, excuses or exceptions to liability.
Circumstances in which there is no criminal responsibility, it is implicit in the structure of criminal responsibility proposed in the Code that none of the defences requires a person charged with an offence to meet the demanding requirement that conduct be justified before a defence could succeed.
Successful reliance on a defence excuses the defendant from criminal responsibility. In the conventional distinction between justification and excuse, conduct is not justified unless it was the “right thing to do in the circumstances.” If conduct is justified, rather than merely excused, it would be inappropriate to speak of an “offence” committed by the accused. Excuses, invoked by an offender who concedes that an offence may have been committed, permit an individualised assessment of responsibility for wrongdoing.
“Elements” of an offence are either “physical elements” or “fault elements”
Physical elements include, in particular, the state of mind of a victim of crime, a witness or one of the imaginary arbiters of conduct who define standards of wrongdoing in the criminal law. Any of these intangible states of mind or opinion can be a defining physical element of a criminal offence.
For example, absence of consent is a physical element in a number of the property offences – The proper administration of Government. In common law rape and its statutory variants, the issue of consent is said to involve the victim’s “state of mind” at the time of the offence. In complicity, a principal offender’s state of mind is a physical element when the guilt of an accomplice falls to be considered. Similarly, the aesthetic or moral reactions of “ordinary decent people”, which define indecency at common law, are physical elements of offences involving indecent conduct. Physical elements of offences will also include a varied host of intangibles, such as ownership of property, marital status and absence of authorisation or entitlement in cybercrime.
“Fault elements” include departures from objectively defined standards of behaviour in recklessness and negligence: “fault elements” displaces the uncertainties of common law references to “mens rea.”
Most offences which require proof of fault will distinguish among physical elements those which require proof of intention as distinct from knowledge, recklessness or negligence. These typically require proof of knowledge that the prohibited conduct is unauthorised, coupled with requirements of intention or recklessness with respect to other physical elements of the offence.
Establishing guilt in respect of offences there is a presumption of innocence. A person is innocent of an offence until the elements of the offence are proved.
Proof of Criminal Responsibility
Some preliminary points can be made however: Since all offences include one or more physical elements, proof of guilt always requires proof of the physical elements required for guilt. When an offence includes one or more fault elements, the prosecution must prove fault.
There are four distinct fault elements:
- Recklessness and
Some offences require more specialised forms of fault. The presumption of innocence requires proof of any fault element required for guilt of an offence. Not all offences require proof of fault with respect to each of their physical elements.
The prosecution must prove fault, when fault is an element of the offence, it acknowledges that offences may impose strict or absolute liability with respect to one or more physical elements. So, for example, offences which involve unlawful appropriation or damage to Commonwealth property do not require proof of fault with respect to the fact that the property belongs to the Commonwealth. As to that particular element of these offences, liability is usually absolute.
The physical elements of an offence are the essential ingredients of liability for an offence. A physical element of an offence may be conduct; or a circumstance in which conduct occurs; or a result of conduct: The list of physical elements which comprise the Code definition of an “offence” is exhaustive.
If an element of an offence does not relate to fault it is, necessarily, conduct, circumstance or result. The permissive “may” indicates that there may be offences which include neither circumstances nor results among their defining elements.
Examples can be found among the offences of threatening to cause harm.
Physical elements of an offence do not include absence of a defence or absence of an “exception, exemption, excuse, qualification or justification provided by the law creating an offence”: The quoted words, from Part 2.6 – Proof of Criminal Responsibility, distinguish between physical elements on the one hand and on the other, defences, exceptions, exemptions, excuses, qualifications and justifications [hereafter “defences or exceptions”]. The distinction is important for two reasons:
• Presumptive rules requiring fault have no application to defences or exceptions: They only apply to the physical elements of an offence: 5.6 Offences that do not specify fault elements; • Presumptive rules which require the prosecution to bear the evidential burden have no application to defences or exceptions: The prosecution bears an evidential burden only when physical or fault elements of an offence are in issue.
Evidential burden of proof – defence
Circumstances in which there is no criminal responsibility. Absence of a defence is not an element of an offence. If legislation allows a defendant who has a “reasonable excuse” to escape liability, is that a defence, an exception, or a defining element of the offence?
Is consent a defence or exception? Dishonest taking or retention of property or is absence of consent a physical element of the offence?
A physical element of an offence may be a result of conduct: Since applications of the concept are practically confined to particular offences involving damage or injury, a standard definition has been employed throughout the Code.
Causing harm to and impersonation and obstruction of, Commonwealth public officials. Section 146.2, which deals with causing harm to Commonwealth official, states that “a person’s conduct is taken to cause harm if it substantially contributes to harm.” The Code adopts the same definition of causation.
Voluntariness Legislatures may impose liability without fault on occasion, but all offences require proof of one or more physical elements. The definition of “physical elements” in the Code entails that every offence requires proof of conduct on the part of the defendant. Since involuntary conduct cannot amount to a physical element of an offence, voluntariness is a fundamental requirement for criminal responsibility. That fundamental requirement is qualified however, when involuntary conduct results from mental impairment or intoxication: ss4.2(6), (7).
In practice, the plea that conduct was involuntary tends to have two quite distinct applications in criminal prosecutions. The first, which will be discussed only briefly in this commentary, involves offences which require proof of both physical and fault elements. In these applications, which usually involve an offence of personal violence, the defendant claims that a violent, perhaps fatal, attack on another was involuntary and done in a state commonly described as “automatism”. If the jury is left in reasonable doubt on the voluntariness issue, the accused escapes conviction. Liability cannot be imposed for the attack though it may have been both violent and done with intention to inflict serious harm or death. Though pleas of automatism usually involve offences of violence to the person, instances involving other offences are occasionally encountered.
The common feature in all is the defendant’s attempt to defeat liability for an offence by a denial of voluntary conduct in circumstances where there appears to be ample evidence of the particular form of fault – intention, knowledge, recklessness or negligence – required for conviction.
The second area of application of the plea, involving offences which do not require proof of fault, is of greater potential significance in federal jurisdiction. These offences, described in Chapter 2 as “offences of strict [or] absolute liability”, Proof of fault is unnecessary in some offences, the prosecution must still prove the voluntary commission of a criminal act, a voluntary omission or voluntary involvement in a state of affairs.
Automatism is unlikely to play a significant role when offences of strict or absolute liability are charged. There is a variety of other ways, however, in which the involuntariness issue can arise. The essential requirement for a successful plea that conduct was involuntary is absence of all capacity for choice.
Conduct is involuntary if it is beyond a person’s capacity for control:
The Code, like common law, distinguishes between offences committed by persons whose choices are coerced by threats or necessity and the conduct of those who simply lacked the capacity to choose whether or not to engage in forbidden conduct or comply with legal obligations.
Offences induced by fear of catastrophe or threatened harm may be excused by a defence of sudden emergency, duress or self defence but the conduct of the defendant is not, in the sense required by the Code, involuntary.
Conduct is involuntary only “if it is [not] a product of the will of the person”: s4.2(2). In the absence of willed conduct, there is no offence.
Omissions can, of course, be wilful. It is common for individuals to refrain deliberately from compliance with obligations to provide information. Omissions often result from forgetfulness, apathy or procrastination. Though these omissions are in a sense “unwilled”, Chapter 2 qualifies the requirement of will.
Omissions are only involuntary if the person was incapable of performing the required act. As in the case of involuntary acts, failure to act may result from the operation of physical forces beyond the person’s control. But involuntary omissions can also result from impairments of consciousness, cognition or physical capacity.
Unwilled states of affairs
A state of affairs, such as possession of some incriminating item of property, may be a consequence of action or inaction on the part of the defendant. Liability is not imposed, save indirectly, for the preceding act or omission however. Instead, liability is imposed on a defendant who stands in a prohibited relationship to the state of affairs. Offences of this nature require proof of fault unless strict or absolute liability is imposed. If that is done, the prosecution must still prove that the state of affairs was voluntary. There appears to be little or no difference between the criteria for voluntariness in omissions and states of affairs. A state of affairs is voluntary on the part of the defendant only if the person was capable of exercising control over it.
The prosecution must prove voluntary conduct
The Code makes voluntariness an essential element of every offence. Defendants who claim that conduct was involuntary deny that there was any offence: they do not seek to rely on a defence to liability.
Evidential burden of proof – defence.
Any allegation of an act, omission or state of affairs which constitutes an element of an offence necessarily implies an allegation that the conduct was voluntary. The voluntariness requirement is no different, in this respect, from the requirements of proof of intention with respect to conduct or recklessness with respect to circumstances or results imposed by s5.6 of the Code. The requirement of voluntary conduct is qualified when involuntariness results from mental impairment or intoxication: Though the prosecution must prove that conduct was voluntary, the burden on the prosecution may be lightened by the operation of Code provisions relating to mental impairment and intoxication. They require evidence in support of a plea of involuntariness to be consistent with sanity and sobriety.
A denial of voluntary conduct cannot be based on evidence of mental impairment: The defence of mental impairment imposes both evidentiary and legal burdens of proof on the accused.
In many instances of involuntary conduct, the defendant’s aberrant behaviour is a consequence of mental illness or abnormality. The Code makes specific provision to ensure that a denial of guilt which should be expressed as a defence of mental impairment cannot be recharacterised as a denial of voluntary conduct: s7.3(6). Evidence of mental impairment, which is broadly defined to include senility, intellectual disability, mental illness, brain damage and severe personality disorder, cannot provide grounds for a denial that conduct was voluntary. Defendants who are disordered in any of these ways must rely on the mental impairment defence if they wish to avoid liability.
A denial of voluntary conduct cannot be based on evidence of self-induced intoxication
If intoxication is self induced, the prosecution is not required to prove that the defendant’s conduct was voluntary: s4.2(6).40 Chapter 2 does recognise a defence of accidental or involuntary intoxication: Involuntary intoxication. That is, however, a true defence, and the defendant accordingly bears the evidentiary burden: s13.3(2).
The requirement of voluntariness goes to conduct, not circumstances or results
Some offences of strict or absolute liability consist entirely of conduct. Section 230 of the Migration Act 1948, for example, which was mentioned above, imposes liability for being the master of a vessel in which a stowaway is concealed. There is no additional element of circumstance or result required for liability. But offences of strict or absolute liability may include, in addition to conduct, physical elements of circumstance or result.
Offences of dangerous driving causing death in state and territorial law are perhaps the most familiar examples. Since Chapter 2 restricts the plea of involuntariness to a denial that conduct was voluntary, a defendant who pleads absence of the capacity to control the circumstances or results of that conduct must bring that plea within the ambit of one of the defences. There is no provision for a plea that the incriminating circumstances or results came about involuntarily.
A defendant who relies on a defence, rather than a denial of voluntariness, must adduce acceptable evidence in support of the defence. Failure to do so will result in withdrawal of the defence from the trier of fact. The distinction is important because the defences, unlike a plea that conduct was involuntary, share the common requirement that the conduct of the defendant was reasonable. Self defence, duress and extraordinary emergency require a reasonable response to the threat or emergency and mistake is no defence to offences of strict liability unless it was reasonable.
There is no liability for omission in the absence of express or implied provision. Though liability for omissions can be implied, the scope of implication is limited. The omission must be an omission to perform a duty which is imposed by a law of the Commonwealth. Moral or merely contractual duties will not provide a foundation for implied liability. An omission to act can only be a physical element of an offence if there is express or implied provision for criminal responsibility based on an omission. Implied liability for omissions is limited to duties imposed by statute: Most federal offences are expressed in a form which is compatible with the imposition of liability for omissions. It is common, however, to impose liability on a person who “engages in conduct” which causes some prohibited result.
Other offences simply impose liability on a person “who causes” the prohibited result. Since “conduct” includes omissions as well as acts and since neglect of any statutory, common law or moral duty can amount to a “cause” of harm, liability for omissions is possible in these offences.These are the offences which require fees to be paid, returns to be made and so on. Liability for omissions does not have to be explicit however. Liability can also be imposed by implicit provision. There is a limit to implication. Liability can only arise from an “omission to perform an act that by law there is a duty to perform”: s4.3(b). A reference to “law” in the Code is restricted in meaning to “a law of the Commonwealth”. 44
Fault elements Most Commonwealth offences require proof of one or more fault elements. Offences of strict or absolute liability, which do not require proof of fault, consist of physical elements alone. Though not uncommon, they are usually specialised in their applications and penalties are minor. The four fault elements are: intention, knowledge, recklessness and negligence. That list of defined fault elements does not exhaust the field of possibilities. Unlike the physical elements, which are exhaustively defined, different.
A fault element for a particular physical element may be intention, knowledge, recklessness or negligence: The fault elements defined in Chapter 2 displace the nineteenth century vocabulary of malicious or wilful wrongdoing. The articulation of criminal responsibility in terms of the physical elements of conduct, circumstance and result enables different fault elements to attach to the different physical elements of an offence.
Negligence is a form of criminal fault
Liability for negligence and strict liability are alike, in the fact that neither requires proof that the defendant was aware of the circumstances or likely results of the conduct which gave rise to criminal liability.
In Division 71 – Offences against United Nations and associated personnel and Division 147 Causing harm to Commonwealth public official, liability requires proof of recklessness at least with respect to the harm done to another.
Laws creating particular offences may specify other fault elements
More specialised fault elements are employed in defining some federal offences. The offence of blackmail requires proof of a demand made by a person who acts without an honest and reasonable belief that they have reasonable grounds for making a demand backed by menaces.
The definition of intention in the Code combines elements of the ordinary, idiomatic meaning of the concept with a stipulated, technical meaning. When acts, omissions and states of affairs are in issue, intention bears its ordinary meaning.
A person has intention with respect to conduct if he or she means to engage in that conduct
The definition commences, in effect, with a declaration that “intention” bears its ordinary meaning. In common law discourse, “intention” is sometimes extended to include possible or likely consequences or features of conduct which were a matter of indifference to the defendant.
A person has intention with respect to a circumstance if they believe that it exists or will exist: In ordinary non legal usage we often distinguish between our acts and the circumstances accompanying our actions in order to express the limits of what was intended.
A “person” who shoots a yellow dog may simply report what was done as “shooting a dog”. Such a report suggests that the fact that the dog was yellow was a matter of indifference to the agent – a mere circumstance accompanying the intended act of shooting a dog. It is possible, however, that the dog was shot because it was yellow. In that case, one would expect the shooter to report the fact that it was yellow in order to make the point that they intended to shoot a yellow dog.
The ambiguity of these forms in ordinary speech is apparent in the perennially confusing statement, commonly found in English caselaw on rape, that the offender must intend to have intercourse without consent. The distinction is obviously of some subtlety, though the flexibility of ordinary language usually permits us to make our meaning clear. It is raised here only to make the point that the Code declines to recognise the distinction between, circumstances which supply a reason for action and circumstances which merely accompany the action, when intention is required for a circumstantial element of an offence. In the terminology of the Code, a person who shoots a dog, knowing or believing it to be yellow, is taken to have intended to shoot a yellow dog. The circumstance is taken to be a part of what was intended, though the person may have been indifferent to the fact or even regretted that the dog was yellow.
A person has intention with respect to a result if they mean to bring it about or if they are aware that it will certainly occur in the ordinary course of events: If one means to cause a consequence, one intends that consequence. If one merely takes a conscious and unjustified risk that the consequence might occur, one may be reckless with respect to that consequence but it is not intended. Chapter 2 maintains the distinction between intended results and results which are merely risked. It does, however, extend the concept of intention beyond those instances where the result was meant to occur. If the person realised that the result was certain to follow their conduct, it is treated as intentional. The extension is controversial, for it cuts across moral distinctions which are held to be of fundamental importance by many moral philosophers and concerned citizens. Many people would argue that there is an essential moral difference, for example, between the administration of a pain-killing drug which is meant to kill a terminally ill patient and administration of the same drug, in the same dosage, with the intention of alleviating pain, though death is known to be an inevitable side effect of the drug. The question whether the criminal law should elide this distinction has been the subject of intense debate in English jurisprudence for several decades. There, the debate has been almost exclusively concerned with the law of murder, an offence which English law has limited to death resulting from conduct which was intended to cause death or grievous bodily harm.
Fault elements: The act, omission or state of affairs is itself necessarily intentional, since the offender engages in that conduct with the intention of achieving some further objective. Though liability in these offences is determined by the offender’s objective, the achievement of that objective is not itself a physical element of the offence. In these Guidelines, intentions of this kind are called “ulterior intentions”. The intention to deprive in theft is an obvious example. The offence requires proof of an appropriation of property belonging to another with the intention of permanently depriving the victim of their property: Div131.1 Theft.
The definition of knowledge in terms of awareness of what exists or will exist in future differs little, if at all, from its meaning in ordinary usage. Since lawyers are occasionally inclined to doubt the proposition, it is of interest that the Code makes it very clear that this fault element includes knowledge of what will exist in a future and hypothetical state of events. So, for example, one who conceals a timebomb on an airplane may be said to know that their act will kill, “in the ordinary course of events”. It is no answer for a defendant to say that they did not know that the bomb would kill because, contrary to expectation, it was discovered and defused before any harm resulted. A requirement of knowledge nevertheless sets a demanding standard for conviction. In Code offences of dishonesty the requirement of knowledge is often diluted by permitting conviction on proof of “knowledge or belief ”.
A person has knowledge of a circumstance or result if they are aware that it exists or will exist in the ordinary course of events: Knowledge is a complex concept and the definition appears to have been intended to restrict its application to instances where the individual was conscious, at the time, of the circumstances or anticipated results of conduct. The definition is clearly intended to deny recourse to the discredited common law concept of “wilful blindness”, which was sometimes taken to be equivalent to knowledge.
Conscious awareness of the fact that goods were stolen.
The fault element in dishonesty is, accordingly, knowledge.
The Code is constructed on the assumption that the underlying principles of criminal justice require proof of conscious advertence to the physical elements of an offence before a finding of guilt can be made.
Recklessness requires proof of a “substantial” risk. The risk is substantial if a reasonable observer would have taken it to be substantial at the time the risk was taken. It is no answer to an allegation of recklessness with respect to a risk of some harmful result that hindsight reveals, for some reason of which the offender was quite unaware, that the harm could never have eventuated.
That is, at best, evidence of recklessness. To be aware of a risk is to be conscious of it and, in the absence of consciousness of risk, the case is one of negligence at most. So, for example, it is highly unlikely that a motorist who causes a catastrophic explosion by lighting a cigarette while filling a car with petrol at a service station could be described as reckless with respect to that risk. In the absence of any indication that the motorist was bent on suicide, the obvious explanation of the motorist’s conduct is an absence of awareness of the risk. Smokers may be said to gamble with their lives in the long run, but they rarely gamble on the chance that the next cigarette will kill them instantly.
Risk taking may be justified
Conduct which involves a substantial risk will not amount to criminal fault if the risk was justifiable in the circumstances. In cases where the issue of justification might arise, it will tend to be subsumed under the defences of duress or sudden or extraordinary emergency: 10.2 Duress; 10.3 Sudden or extraordinary emergency. These defences are excuses, which require a less demanding standard of human fortitude than justification. The requirements of both defences are satisfied if the conduct of the individual was a “reasonable response” in the circumstances.
The need to face the question whether a risk was justified simply does not arise if the conduct of the accused was a reasonable response to a threat made by another person or to a sudden or extraordinary emergency. The twin filtering devices of prosecutorial discretion and the pre-emptive role of the excuses probably account for the complete absence of reported cases in which a charge of reckless wrongdoing was defeated by a plea of justification.
A person may be reckless with respect to a risk of an actual or anticipated result of their conduct.
An offender is only reckless with respect to circumstances or results of their own conduct
In Code usage the term “result” is confined to the results of the offender’s conduct. Accordingly, the offender cannot be reckless with respect to the results of another person’s conduct, nor can the offender be reckless with respect to the circumstances of another person’s conduct. However, some offences impose liability on offenders whose conduct creates a risk of criminal activity by others.
The best known examples are prohibitions against conduct which facilitate the commission of crime by another. These crimes are, in effect, crimes of inchoate complicity. One can imagine, for example, a legislative provision which makes it an offence to sell a weapon to another in circumstances where provision of the weapon might enable the other to commit an offence. In the definitional structure of the Code the weapon seller cannot be said to be reckless with respect to the conduct of the customer. In these prohibitions the fault element of recklessness, manifest in the offender’s conduct, attaches to the risk that the other person will cause harm. Creation of that risk can be considered to be a result of the offender’s conduct. Offences which take this form will be comparatively rare. They find a place, however, in prohibitions directed at controlling conduct in organised networks of potentially criminal activity. Money laundering offences provide the most obvious examples.
There is a markedly different style of the definitions of recklessness and negligence. Prohibitions against negligent conduct are inarticulate, referring as they do to rules which are unknown until after the event. Though the concept of negligence plays a role in the formulation of offences of unlawful homicide and injuries to the person, it has few other applications. In general, Commonwealth criminal law tends to avoid prohibitions requiring proof of negligence. In more serious offences, the tendency has been to prefer prohibitions that are more specific in their requirements than a blanket prohibition of negligence.
Liability can be imposed, that is to say, for conduct that is negligent in its manner of performance. So, for example, the Code permits offences of careless but not reckless driving. Since recklessness requires awareness of risk, it is always necessary to specify the circumstance or result of which the offender must be aware. 5.5-B The Code recognises only one degree of criminal negligence. The definition is intended to distinguish between negligence in civil actions for damages and negligence which justifies the imposition of criminal punishment. Since most practical applications of the concept of negligence are limited to conduct which causes physical injury or death, with primary emphasis on the crime of manslaughter, it has been generally accepted that the level of negligence must be gross or shocking in its departure from standards of reasonable behaviour.
The Code definition of negligence is, of course, circular. That too is a legacy of English caselaw. It is likely, however, that the common law background will continue to govern understanding of the meaning of negligence.
It is necessary to be clear from the outset that there is nothing in the Code to require a court to limit the meaning of the word “act” to a mere physical movement. Many prohibitions proscribe complex acts. If it is an offence to sign a cheque in circumstances where the account is empty, signing a cheque is the act done by the offender. Nothing in the Code requires a court to dissect the act of signing a cheque into a catalogue of physical movements, consequences of those movements and circumstances in which they occur.
A person is guilty of an offence if the person makes a false statement to a Commonwealth public official in an application for a licence. No fault elements are specified for this string of physical elements. Section 5.6 accordingly applies and the physical elements of the offence must be characterised in order to determine whether intention or recklessness is required for each of these elements
The interpretive process required by s5.6 is analogous to that which was meant to occur in the application of s23 of the Griffith Code, adopted in Queensland and Western Australia. Though the analogy can be drawn, it is one that is likely to result in confusion rather than illumination if any attempt is made to transfer particular decisions from one context to another. The jurisprudence of s23 of the Griffith Code is not distinguished for its clarity or ease of application. Despite superficial similarities, s5.6 of the Code serves very different purposes from those originally intended for s23.113 Moreover the statutory contexts of application are very different: s5.6 of the Code is embedded in a far more articulate code of general principles than s.23 of the Griffith Code
CIRCUMSTANCES INVOLVING MISTAKE OR IGNORANCE
Mistake or ignorance of fact (fault elements other than negligence)
(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:
(a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.
(2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
Mistake of fact (strict liability)
(1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted an offence. (2) A person may be regarded as having considered whether or not facts existed if: (a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and (b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
Most Chapter 2 defences are excuses which do not come into play until the prosecution has established all of the physical and fault elements necessary to constitute an offence: 3.3 Establishing guilt in respect of offences. In traditional terminology, the defences combine a confession to the charge that an offence has been committed with a claim that guilt is avoided by reason of the defence. Division 9 contains three exceptions to this generalisation. Section 9.5 – Claim of right, consists of two distinct provisions, only one of which is a true defence. It opens with the statement that a defendant who relies on claim of right is not criminally responsible if the mistaken claim would “negate a fault element” required for the offence. It is obvious that this provides no advantage to an accused which is not already inherent in the definition of the original offence. The provision goes on to provide a true claim of right defence, though it is one which is more restricted than its common law counterpart. Section 9.1 – Mistake or ignorance of fact (fault elements other than negligence), is similar in its apparent lack of exculpatory effect. That is not to say that these two provisions have no effect at all. It is possible, for example, that they appear to favour defendants when, in reality, they ease the task of the prosecution in proving fault. This speculative possibility will be taken up below. The third of the exceptions is s9.3 – Mistake or ignorance of statute law, which declares that mistake or ignorance of a statutory provision relating to an offence is no excuse if the physical and fault elements are established. The rule is different, however, when a defendant relies on mistake or ignorance of subordinate legislation. Section 9.4 – Mistake or ignorance of subordinate legislation provides a true defence for individuals who commit offences as a consequence of inadequate publication of subordinate legislation. The most important of the defences based on mistake or ignorance is s9.2 – Mistake of fact (strict liability). As its name indicates, it provides the definitional content for strict liability as a form of criminal responsibility without fault: 6.1 Strict liability.
Mistake or ignorance of fact (fault elements other than negligence)
Mistake or ignorance of fact is an unnecessary inclusion among the defences. The Model Criminal Code Officers Committee conceded that the provision was redundant. It was included because it was felt that it would tend to clarify the operation of the Code provisions and that it would be unlikely to generate confusion or error: “In part the Committee was influenced by the fact that the Code will speak to a wider audience than lawyers.”188 In view of its intended purpose, as an informative redundancy, it is unlikely to play any significant role in the development of Code jurisprudence. 9.1-A Mistaken belief or ignorance may negative intention, knowledge or recklessness: The proposition is obvious and in no need of elaboration. 9.1-B A tribunal of fact may consider whether belief or ignorance was reasonable in the circumstances: The provision is unusual in statute law, though Victorian rape legislation, permits the inference that the defendant knew the victim had not consented if a mistaken belief that the victim had consented would have been unreasonable in the circumstances. Chapter 2 generalises that approach to all offences which require proof of intention, knowledge or recklessness. Unlike the Victorian provision, which requires the trier of fact to consider whether the mistaken belief was reasonable, s9.2 is permissive. It does not go beyond the unexceptionable proposition that a claim of ignorance or mistake is more rather than less credible if mistake or ignorance would have been reasonable in the circumstances. If the capacity for reasonable behaviour of the individual in question was limited by some disability, whether permanent or temporary, involuntary or self induced, no adverse inference can be drawn from the fact that mistake or ignorance was unreasonable in the circumstances. 9.1-C Issues of intention, knowledge, recklessness cannot be withheld from the jury: Since 9.1 Mistake or ignorance of fact is described in the Code as a “defence”, it might seem to follow that the defendant bears an evidential “burden of adducing or pointing to evidence that suggest(s) a reasonable possibility” that their conduct was not accompanied by the fault element required for the offence. In true defences, which excuse rather than deny the existence of the elements which comprise the offence, a court is required to withhold the defence from the jury if the defendant fails to discharge the evidential burden: s13.3 Evidential burden – defence. Since s9.1 is not a true defence, failure to carry the evidential burden neither requires nor permits the court to withdraw issues of fault from the jury. The prosecution is still required to “prove every element of an offence relevant to the guilt of the person charged.” Though a defendant charged with an offence requiring proof of intention, knowledge or recklessness adduces no evidence of mistake or ignorance the issue of fault still goes to the jury which must consider all the evidence relevant to the issue.
Mistake of fact (strict liability)
Chapter 2 envisages that strict liability will only be imposed by express provision: 6.1 Strict liability. Two consequences follow from a declaration that liability is strict with respect to one or more elements of an offence: • the prosecution is not required to prove fault with respect to a strict liability element; and • a defence of reasonable mistake of fact is available to a defendant who can produce evidence in support of the defence. Reasonable mistake of fact, like most Chapter 2 defences, preserves the fundamental principle that an accused is innocent until guilt is proved beyond reasonable doubt. If relevant evidence is given in support of the defence, the prosecution is required to persuade the jury that there was no mistake or that the mistake was unreasonable. In the absence of evidence of reasonable mistake, the defence will be withdrawn from the jury: 13.3 Evidential burden of proof – defence. The defence has no application to a physical element of an offence when intention, knowledge, recklessness or negligence must be proved for that element. 9.2-A The defendant must have made a mistake: Ignorance, no matter how reasonable or understandable in the circumstances, is no excuse. The Code follows the much debated recommendation of the Model Criminal Code Officers Committee that “ignorance should not be included because this would make strict liability more like negligence, thus eroding the higher standard of compliance set by strict liability”. 193 Though mistake and ignorance tend to merge in ordinary usage,194 the Code insists that one cannot be mistaken about facts unless one has first “considered whether or not facts existed”. The apparent intention of the provision was to impose what is, in effect, a duty of inquiry in circumstances where conduct might result in commission of a strict liability offence. The resulting tension between the recognition of a defence based on reasonable mistake and the denial of any defence based on reasonable ignorance is apparent in the further qualification of that distinction in 9.2(2). If the situation in which the offence occurred had arisen on a previous occasion, a consideration of the facts on that occasion will absolve the defendant from the need to consider the facts again, when the offence occurred. A person who lends a car to a friend, after checking their driving licence, will not lose the right to plead reasonable mistake simply because the inquiry was not repeated a fortnight later, when the car was lent again to the same borrower, whose licence had lapsed. An honest and reasonable belief that nothing had changed can provide the basis of a defence of reasonable mistake.
The mistake must be about facts
The Code makes no attempt to reform or clarify existing law on the distinction between reasonable mistake of fact, which excuses, and reasonable mistake of law, which does not. 9.2-C The mistake may relate to circumstantial or result elements of the offence: The defence requires a mistaken belief in facts which are, in some way, inconsistent with the existence of the circumstance or result which makes the conduct an offence. The most familiar applications of the defence occur in cases where the mistake relates to circumstantial elements of the offence charged. Consider, for example, the sexual offences proposed in the Model Criminal Code, Ch 5: Division 3 – Sexual Acts Committed against or with children. Strict liability is imposed with respect to age in a number of these offences. A defendant’s mistaken belief that a child sexual partner holds a driving licence would provide the basis for a defence, if that belief was reasonable, when attainment of the age for a driving licence would be inconsistent with the incriminating circumstance. It makes no difference in such a case that the defendant may have been ignorant of the law relating to sex with minors and quite unaware of the significance of their belief concerning the age of the child. In this instance, the mistaken belief relates to an existing fact. Though the mistaken belief in this instance relates to an existing fact, any mistake of fact, whether it relates to the past, present or future, may provide a basis for the defence. Though most instances of strict liability relate to circumstantial elements of an offence, strict liability is also imposed on occasion with respect to results of conduct. Offences of causing death or injury by culpable driving provide familiar instances in state and territorial law. Criminal prohibitions against conduct which causes pollution
also take this form.202 Of course, mistakes about what will happen in the future necessarily depend on beliefs about present circumstances. One rehearses the reasons why a harmful result cannot occur or one takes precautions to ensure that it will not. Reasonable beliefs about existing circumstances provide the ground for reasonable mistakes of fact about what will happen in the future. 9.2-D The mistaken belief must contradict one or more of the physical elements of the offence charged: Reasonable mistakes about circumstantial elements of an offence often concern present or past facts. In the typical example of sexual offences against children, a person who contemplates sexual intercourse with a partner who might not have reached the age of consent ought to take particular care to inquire about existing facts. So far as criminal responsibility is concerned, there is no need to consider what might happen after intercourse occurs: the intended sexual partner cannot become any younger. But circumstantial elements which make conduct criminal are not invariably located in the present or past. Chapter 2 envisages that liability will be imposed, on occasion, for conduct which only becomes criminal at a later time, when an incriminating circumstance comes into existence.203 In an example discussed earlier the point was made that the effects of criminal conduct are often long delayed and it is quite possible that the incriminating circumstance may not occur until long after the acts or omissions which constitute the conduct element of the offence: see above 4.1-E. Strict liability may also be imposed for the results of conduct. When liability is imposed for results or future circumstances, a defence of reasonable mistake of fact will depend on the defendant’s beliefs relating to precautions or preventive factors. Reasonable mistake of fact will provide a defence for an accused who was convinced, on reasonable grounds, that the incriminating result could not occur. However, mistake is no excuse if the defendant knew that the preventive factors might prove illusory or that precautions might fail. The standard set by the defence of reasonable mistake of fact is absolute in the sense that it requires a reasonable belief that incriminating results will not occur and incriminating circumstances will not exist. It makes no difference that a reasonable person might have considered the risk worth taking. The defence only excuses if the defendant made a reasonable mistake: it is not a defence of reasonable behaviour or due diligence. This rigour is softened to some extent by the provision of a defence which excuses accidental breach of provisions which impose strict or absolute liability: 10.1 – Intervening conduct or event.
A mistaken belief in a state of facts which would amount to a different offence from the one charged is no excuse
The defence is not available unless the defendant’s conduct would not have been a criminal offence, had the mistaken belief been true. In this respect the Code reflects common law principle though the application of that principle is more limited in its effects in Commonwealth than State or Territorial law. The well known case of Reynhoudt, 207 which involved the offence of assaulting a police officer in the due execution of duty, provides an apt example of the common law principle. A majority of the High Court held that the offence imposed strict liability with respect to the status of the victim of the assault.208 Though reasonable mistake of fact could excuse the offence, both common law and the Code restrict the defence to a mistaken belief in a state of facts in which “the conduct could not have constituted an offence.” Take the case of an assault on a plain clothes officer. At common law, a reasonable mistake concerning the officer’s status could not excuse an offender if the assault was itself unlawful; but reasonable mistake would excuse a defendant who believed that the plain clothes officer was an unlawful assailant. This restriction on the defence is open to criticism when the offence charged is very much more serious than the offence which would have been committed had the mistaken belief been true. Though the common law has been subjected to criticism on this account,210 courts have been unmoved by the criticism. Chapter 2 accepts the prevailing common law view that a reasonable mistake which merely goes to the nature or degree of the criminal offence is no excuse. Commonwealth criminal law allows the defence a wider scope, however, than State and Territorial law. That is a consequence of the fact that the reference in s9.2(1)(b) to an “offence” must be taken to refer only to Commonwealth offences.211 It follows that reasonable mistake can excuse a defendant charged with a Commonwealth offence though their conduct would have violated state or territorial law, had the mistaken belief been true. The effect can be illustrated by the Code provisions in Division 71 – Offences Against United Nations and Associated Personnel, which closely parallel the original form of the offence of assaulting a police officer. Each of these offences imposes strict liability with respect to the UN status of the victim of the attack. Since Commonwealth law, unlike state and territorial law, does not include a general offence of assault or harm, a reasonable mistake about the status of the victim will, in most cases, excuse a gratuitous attack. Reasonable mistake would not excuse the infliction of harm, however, if the defendant mistook a UN official for a Commonwealth official. Though the Code does not recognise a general defence of assault or harm to another, it does impose liability for attacks on its own personnel.212 9.2-F The mistake must be reasonable: The requirement of a reasonable mistake implies the existence of a measure or standard of reasonableness. Common law authorities provide little guidance on the meaning of the reasonableness standard. In the law of self defence, the common law concedes that a reasonable mistake is one which it was reasonable for the defendant to make in the circumstances.213 The standard set in self defence is responsive, to some extent at least, to the situation of a defendant who may have been required to act on the instant to an apparent threat. It is uncertain whether common law requires or permits the same flexible approach when a defendant pleads a defence of reasonable mistake to an offence which imposes strict liability. That is a consequence, in part, of the fact that strict liability is rarely if ever imposed to regulate conduct which is undertaken in circumstances of panic or stress. Chapter 2 does offer implicit guidance on the issue. Since the defence of reasonable mistake requires evidence that the defendant “considered whether or not facts existed”, the question whether a mistake was reasonable must depend on the circumstances in which that consideration could take place.214 It is implied that the mistake must be one which it was reasonable to make in the circumstances. It is unlikely, however, that the standard will be reduced for individuals whose capacity for reasonable judgment is limited or impaired.215
Mistake or ignorance of statute law
In general, ignorance or mistake about the existence or application of legislation creating an offence is no excuse. That familiar general principle is qualified, however, by two provisions which allow mistake or ignorance of law to defeat criminal responsibility in certain circumstances. The first of these refers to the possibility that Parliament might provide a defence, excuse or exception to liability for individuals whose breach of a statutory prohibition results from mistake or ignorance of law. The second provision simply reiterates the “truism” that a defendant’s mistake or ignorance of law might make it impossible for the prosecution to establish fault.
Perhaps the most familiar application of that truism occurs in offences that require proof of conduct affecting “property belonging to another.” There is no doubt that the prosecution must establish fault with respect to this requirement for liability and fault cannot be established if the defendant’s conduct resulted from a mistake or ignorance relating to ownership of the property in question. Mistakes or ignorance about ownership will often result from ignorance or mistake of law. If the law in question is statutory, an application of s9.3(2)(b) overlaps the provisions in 9.5 Claim of right: discussed below, 9.5-A. The possibility that reliance on ignorance or mistake of law might permit a person to escape liability because the prosecution cannot prove fault has prompted the legislature to impose strict liability in many instances when physical elements of an offence involve mixed issues of law and fact. Strict liability permits a defence of reasonable mistake of fact: 9.2 Mistake of fact (strict liability). Though the defence of reasonable mistake can extend to include mistakes about mixed issues of law and fact, it is limited by requirements of conscious enquiry and the exercise of reasonable judgement: 9.2-A,9.2-F. 9.3-A
A person who was ignorant or mistaken about the law defining an offence is not criminally responsible if that law permits mistake or ignorance of its provisions as an answer or excuse
Legislative provisions which make specific provision for ignorance or mistake of law as an answer or excuse for otherwise criminal conduct are rare. Implied provision for defences which permit reliance on mistake or ignorance of law is more common. Defences such as 9.2 Mistake of fact (strict liability) will extend, on occasion, to include instances where the mistake of fact arises from a mistake or ignorance about the law.
Ignorance or mistake of law may negate a fault element that applies to a physical element of an offence
Like s9.1 Mistake or ignorance of fact (fault elements other than negligence), s9.3(2)(b) does not provide a defence or exception to liability. If the prosecution cannot establish the elements of an offence, nothing has occurred which requires an excuse or the protective shelter of an exception.
Prior to the Code, occasions when ignorance or mistake of law could defeat an allegation of fault have been rare. It is not anticipated that they will occur with greater frequency when Chapter 2 sets the parameters of criminal responsibility. Cases where ignorance or mistake of law provides the basis for a denial of fault share the common feature that a legal concept defines or characterises a fact which constitutes, in part or whole, a physical element of an offence.
Claim of right
The simplest instances in which claim of right bars liability are those where a charge of theft is defeated on the ground that property was appropriated by the defendant in pursuit of a mistaken claim to ownership. Apart from these typical instances of its application, the effect of claim of right on criminal responsibility in state and territorial law remains uncertain and contested. Chapter 2 limits but does not resolve common law uncertainties over the potential applications of claim of right as a ground for denying criminal liability or responsibility.
Section 9.5 includes two quite distinct claim of right provisions, only one of which is a defence in the sense that it excuses the commission of an offence.232 In the first of these provisions, which applies to offences which include “a physical element relating to property”, claim of right defeats liability if it would “negate a fault element” for a physical element of an offence. In this guise, it is really no more than a specialised mode of denying that the prosecution has established the elements of the offence.
This restriction on the protective scope of a claim of right is a consequence of the abandonment of the antiquated statutory terminology of “wilful” or “malicious wrongdoing,” which provide a statutory foothold for claim of right in state and territorial law. The vocabulary of fault in the Code strips the fault elements of much of the evaluative content of the older terminology. In its second guise, in s9.5(2), claim of right goes beyond mere denial of fault. It provides a true defence which is limited in its application to offences which do not include any physical elements relating to property or the use of force against another.
Mistaken belief in a claim of right can provide a ground for denying fault
Rearrangement of the text of 9.5(1), which occurred between the initial and final drafts of the Code, has created a problem of interpretation at the outset. The provision is meant to bar criminal responsibility when a mistaken belief about a proprietary or possessory right is inconsistent with an imputation of fault. In its present form, however, the provision states that claim of right bars criminal responsibility if the existence of the right, which the defendant wrongly believed to exist, would be inconsistent with the imputation of fault. This can only be taken as an ellipsis – which was meant to express the idea that a mistaken belief in the existence of a proprietary or possessory right can negate a fault element of the offence. There is no ambiguity here, for there is no plausible alternative meaning which the provision could bear.
Claim of right, like 9.1 Mistake or ignorance of fact (fault elements other than negligence) and 9.3 Mistake or ignorance of statute law, supplements the fault provisions of Part 2.2 – The elements of an offence: Mistake or ignorance, whether of law or fact, can provide grounds for a denial of fault when the defendant is charged with an offence of appropriating or damaging property “belonging to another”.
If the defendant is unaware of the other’s right to the property, as a consequence of mistake or ignorance, fault elements or knowledge or recklessness with respect to the victim’s rights to the property cannot be established. That conclusion follows from the provisions of Part 2.2 – The elements of an offence. The provisions on mistake or ignorance of fact or law and claim of right in Part 2.3 –
Circumstances in which there is no criminal responsibility, provide a partial expression of the fundamental principles of liability in Part 2.2. It is a partial rather than complete expression because there will be circumstances in which fault cannot be proved though none of the provisions in Part 2.3 Circumstances in which there is no criminal responsibility) has any application. Consider the following restrictions on the scope of the Part 2.3 provisions on mistake or ignorance when fault is in issue: • Section 9.1 has no application to ignorance or mistake on a matter of law. • Section 9.3(2)(b) only applies to mistakes or ignorance respecting Commonwealth statute law: In practice, unwitting appropriation or damage to property belonging to another is more likely to result from mistake or ignorance relating to common law. • Section 9.5(1) only applies to mistaken beliefs about a proprietary or possessory right: It has no application in circumstances where an unwitting appropriation or damage results from ignorance rather than mistake.237 Moreover the claim of right provision has no application to offences “relating to the use of force against a person”. The potential effects of mistake or ignorance on liability depend on the definition of the particular offence in question.238 Taken singly or in combination, the provisions of Part 2.3 do not exhaust the circumstances in which failure to appreciate the nature or extent of the property rights of another may bar proof of fault. The paragraph which follows, on offences which require proof of dishonesty, outlines some of the ways in which mistake or ignorance relating to proprietary or possessory rights can defeat an allegation of fault. 9.5-C Claim of right and offences of dishonesty: Dishonesty is defined in Ch7 of the Code: s130.3 Dishonesty: For the purposes of this Chapter, dishonest means: (a) dishonest according to the standards of ordinary people; and (b) known by the defendant to be dishonest according to the standards of ordinary people In none of these instances is reliance on claim of right strictly necessary to support the defendant’s denial of guilt. The defendant, who does not seek to excuse an offence, instead denies that any offence occurred. The first is a straightforward denial of fault; the second a denial of a circumstantial element of the offence and the third is another denial of fault. Belief in the existence of a proprietary or possessory right is no answer to an allegation of dishonesty unless that belief is inconsistent with the imputation of fault. It is quite possible for a person to take action in pursuit of a claim of right in circumstances where they know very well that ordinary people would consider their action to be dishonest. Beliefs in legal entitlement, whether true or false, can provide a powerful incentive to indulge in oppression and sharp practice. In the Code offences of dishonesty, this potential for conflict between the defendant’s claim of right and the statutory formulation of the Feely/Ghosh test is resolved in favour of the ordinary person’s standard of honesty. It is possible, in other words, for a person to commit an offence of dishonesty in circumstances where the conduct is motivated by a claim of right. That is a consequence of the fact that claim of right has no effect unless it negates a fault element – in this case, knowledge that the conduct is dishonest according to the standards of ordinary people. Since dishonesty is exhaustively defined, claim of right cannot extend or modify that definition in its application to particular offences. If the offender knows their conduct to be dishonest by those standards, the fact that they acted in pursuit of a claim of right is no answer to the charge. Instances will be highly unlikely to arise of course, but it would be arrogant for lawyers to assume that conduct based on a well founded legal claim provides an irrefragable guarantee against an ordinary person’s condemnation of that conduct as dishonest. The Code definition of dishonesty is in sharp contrast with the Victorian law of theft, where claim of right does form part of the definition of honesty. In Victoria, the Feely/Ghosh test, which never achieved statutory recognition, has been rejected by the Victorian courts.243 9.5-D Claim of right provides a defence of indeterminate scope to offences which do not involve property or the use of force against a person: Section 9.5(2) permits a true claim of right defence, which goes beyond mere negation of fault elements, in offences which involve neither force nor violation of property rights. Since claim of right is a true defence in these circumstances, rather than a mere denial of a fault element, it can excuse even if liability is strict or absolute.244 The defence is available in the following circumstances: • An offence which does not: i require proof of a physical element relating to property;245 or ii “relat[e] to the use of force against a person”; • The defendant’s conduct must arise “necessarily out of the exercise of the proprietary or possessory right that [the defendant] mistakenly believes to exist”. Though the Chapter 2 claim of right defence in s9.5(2) bears some resemblance to claim of right in state and territorial laws, it is hedged with restrictions, some of which have no counterpart in those laws. Existing common law and decisions pursuant to the codified defence of claim of right in s22 of the Griffith Code provide some indication of the potential applications of the Chapter 2 defence, but do not determine its effect. The restriction of the defence to offences which do not include a physical element which relates to property departs from Australian common law and the Griffith Code.246 So too does the requirement that the “offence aris[e] necessarily out of the exercise of the proprietary or possessory right”. At common law or under the Griffith Code, claim of right can excuse a creditor who deceives in order to obtain money owed by a recalcitrant debtor.247 Section 9.5(2) has no application in such a case, for the defendant does not purport to exercise a proprietary or possessory right. Even if that hurdle could be surmounted, the defence has no application unless the deceiver was mistaken about their proprietary or possessory rights. And, finally, the deception in such a case cannot be said to arise necessarily out of the exercise of any claim of right. Deception is a tactic one may choose in pursuit of one’s rights; however it is no way necessary to their exercise. Speculation on potential applications of the Code defence suggests various possibilities, among them claims based on mistaken beliefs relating to rights, immunities or privileges arising from native title and associated cultural or spiritual rights.248 Since this is a defence, not a denial of any fault element which the prosecution is bound to prove, the defendant bears the evidential burden: 13.3 Evidential burden of proof – defence. 9.5-E Section 9.5 Claim of right does not negate criminal responsibility for an offence that relates to the use of force against a person: So far as defensive applications of claim of right are concerned, pursuant to s9.5(2), the exception requires no explanation. An offender who attacks another in the exercise of mistaken belief that the attack is necessary to the exercise of a proprietary or possessory right cannot resort to claim of right to defeat a charge of assault.249 However, such an offender can escape conviction for robbery. State and territorial law recognise claim of right as a defence to a charge of robbery or other offences of dishonesty involving force or threats of force. The same conclusion follows under the Code. The conclusion that there is no robbery in such a case is inescapable, though a majority in the New South Wales Court of Criminal Appeal decision in Fuge, 250 on common law claim of right, recently expressed disapproval verging on outrage at the prospect.251 Sections 132.2 Robbery and 132.3 Aggravated robbery both require proof that the offender was engaged in theft of property. Since theft requires proof of a dishonest appropriation of property by an offender who was aware that it might belong to another, reliance on a mistaken claim of right can provide grounds for a denial of fault: 9.5-C. If the prosecution cannot establish the fault elements of theft, the charge of robbery must fail.
It should be noted that this conclusion does not follow from the existence of s9.5 Claim of right. The concluding provision can be taken to evince an intention to deny recourse to the section in any offence which includes a physical element involving the use of force.252 But reliance on s9.5 is unnecessary to defeat the charge: the conclusion that a mistaken belief in a proprietary or possessory right might bar conviction for robbery is a simple consequence of the requirement that the prosecution first prove the elements of a theft.
CIRCUMSTANCES INVOLVING EXTERNAL FACTORS
Intervening conduct or event A person is not criminally responsible for an offence that has a physical element to which absolute liability or strict liability applies if:
(a) the physical element is brought about by another person over whom the person has no control or by a non-human act or event over which the person has no control; and
(b) the person could not reasonably be expected to guard against the bringing about of that physical element.
Intervening conduct or event
The defence of intervening conduct or event is limited in its applications to physical elements of an offences for which strict or absolute liability is imposed: s6.1. Strict Liability; s6.2 Absolute Liability. Though the prosecution is not required to prove fault with respect to the physical element of the offence in question, criminal responsibility is not incurred if that element resulted from either the conduct of another person or an event over which the defendant could not be expected to exert control. The Code follows the canonical common law formulation of the defence by Bray CJ in Mayer v Marchant: 253 It is a defence to any criminal charge to show that the forbidden conduct occurred as the result of an act of a stranger, or as the result of non-human activity, over which the defendant had no control and against which he or she could not reasonably have been expected to guard. The defence is available when any physical element of the offence – an act, omission, state of affairs, circumstance or result – is brought about by or as a consequence of some extraneous and uncontrollable event or conduct of another. It is evident that the requirement of an intervening event or conduct was not meant to restrict the defence to events or conduct which “come between” the defendant’s conduct and other physical elements of the offence.254 Since s10.1 refers to the potentially exculpatory effect of intervening conduct, it is apparent that the defence can be based on the failure or omission of some expected action by another person. For example, a failure on the part of a manufacturer to sterilise food preparation utensils could provide the basis for a defence of intervening conduct for a retailer charged with selling contaminated food
The defence can supplement a denial that an offence of strict or absolute liability was committed voluntarily: see s4.2 Voluntariness. In offences which impose strict liability, it will also supplement the operation of the defence of reasonable mistake of fact: s9.2 Reasonable mistake of fact (strict liability). That defence is available to a defendant only if there was, in fact, a mistake. Mere ignorance, no matter how reasonable, cannot provide grounds for a defence of mistake. This rigidity in the defence of reasonable mistake is palliated by the availability of the defence of intervening conduct.255 The defence will excuse defendants who simply failed to anticipate those unpredictable and unavoidable events which bring their conduct within the scope of criminal prohibition.
Duress excuses a person who is compelled to commit an offence by threats. Chapter 2 abrogates many of the common law restrictions on the defence.256 Unlike the common law, the Code does not limit duress to circumstances involving a threat of death or serious injury. There is no restriction on the nature of the threatened harm. The Model Criminal Code Officers Committee accepted the view advanced by Professor Stanley Yeo: Once a person is under the influence of a threat, whatever he or she does depends on what the threatener demands. The crime demanded might be trivial or serious, but it has no necessary connection with the type of threat confronting the accused. Policy reasons would, however, insist that the accused’s response was reasonably appropriate to the threat.257 Like common law, Chapter 2 imposes an objective standard, limiting the class of those who can rely on the defence. There are three objective criteria, each of which employs the concept of reasonableness as a limit on the defence: • The threat must be real or reasonably apprehended as real: Unlike s10.4 Self defence, 258 duress is not available to a defendant who is unreasonably mistaken in their apprehension of harm; • The threat must be unavoidable: The defence is barred if reasonable measures to avoid or neutralise the threat were available to the defendant; • The defendant’s response to the threat must be reasonable in the circumstances: The defence of duress is barred if commission of an offence in compliance with the demand was not a reasonable response to the threat. It is implicit in the last of these criteria that individuals faced with a threat of harm must sometimes endure the threatened harm rather than comply with the demand and commit the offence. These criteria displace the common law test, which limits duress to circumstances in which a “person of ordinary firmness of mind” might have reacted in the same way as the defendant.259
Common law does not permit a defence of duress to excuse murder or attempted murder. In its report on Chapter 2, the Model Criminal Code Officers’ Committee argued that there was no principled ground limiting the application of the defence in this way. The objective criteria, which require reasonable belief in the threat, and a reasonable response, should ensure that…the defence could not be lightly invoked”260 when murder or attempted murder are in issue. Though the Committee’s recommendation was not expressed in any of the provisions of Chapter 2, it has been accepted by the Commonwealth. In Chapter 4 of the Code, 71.2 Murder of a UN or associated official imposes no barrier against reliance on a defence of duress. The defence is not available when the threat is made by a person, or their agent, with whom the defendant has joined an association for the purpose of engaging in conduct of the same kind as that demanded. Common law and the Griffith Code place a similar, though apparently more restrictive limitation on the defence. They would deny a defence of duress when the defendant joined an association with another in the awareness of a risk that co-ercion might be employed to induce participation in an offence.261 The Chapter 2 defence of duress, by contrast, is barred only if the defendant shares the purpose of the principal to engage in criminal conduct of that kind.
Sudden and extraordinary emergency
Subsection 10.3(1) provides a person is not criminally responsible for an offence when conduct constituting the offence is carried out in response to circumstances of sudden or extraordinary emergency. The usual term for this defence at common law is “necessity”. Chapter 2 amalgamates principles underlying the common law of necessity and its equivalent in s25 of the Griffith Code and restricts the application of the defence to circumstances of “sudden or extraordinary emergency.” In the notes in his Draft Code, Sir Samuel Griffith stated: This section gives effect to the principle that no man is expected (for the purposes of the criminal law at all events) to be wiser and better than all mankind. It is conceived that it is a rule of the common law, as it undoubtedly is a rule upon which any jury would desire to act. It may, perhaps, be said that it sums up nearly all the common law rules as to excuses for an act which is prima facie criminal.262 Like 10.2 Duress, the defence of sudden or extraordinary emergency imposes an objective standard, limiting the class of those who can rely on the defence. There are three objective criteria, each of which employs the concept of reasonableness as a limit on the defence. With necessary adaptations for differences in subject matter, the criteria are the same as those which determine the availability of a defence of duress: • The emergency must be real or reasonably apprehended as real: The defence of sudden or extraordinary emergency is not available to a defendant who is unreasonably mistaken in apprehending a situation of emergency; • The emergency must be unavoidable by lesser means: The defence is barred unless commission of the offence was the only reasonable way to deal with the emergency; • The defendant’s response to the emergency must be reasonable in the circumstances: The defence is barred if commission of an offence was not a reasonable response to the emergency.263 It is implicit in these criteria that individuals faced with an emergency must sometimes suffer the consequences or allow them to occur, rather than commit an offence which will avert the emergency. Like duress, the defence of sudden or extraordinary emergency is a general defence, available even to a charge of murder or attempted murder.
Conduct which would otherwise amount to an offence is not criminal if it is done in self defence. Chapter 2 extends the application of the defence beyond circumstances involving a threat of personal harm. A plea of self defence is also available when action is taken to defend property or to repel or remove trespassers. That enlargement of the range of interests which are included within the plea of self defence is parallelled by a corresponding enlargement of the range of offences which can be excused by a plea of self defence. Though it is often assumed that self defence is limited in its applications to offences which involve the use of force, Chapter 2 imposes no limit of this kind on the range of offences for which self defence might provide an excuse or justification. A judicious lie might amount to a far more effective defensive measure than a resort to force as, for example, when property is threatened with unlawful appropriation. If the lie was told in circumstances which could amount to an offence, there is no apparent reason why a defendant should not resort to s10.4 to excuse or justify their conduct. Conduct is only excused on the ground of self defence if it was a reasonable response to threatened harm. The defendant is judged, however, on their own perceptions of the threat. An unreasonable mistake can provide the basis for a complete defence. The defence has no application in cases where the defensive action was a response to conduct which the defendant knew to be lawful. Moreover, death or serious injury, if caused intentionally, cannot be excused if the defendant’s use of deadly force was undertaken in defence of real or personal property. 10.4-A Self defence can excuse conduct which would otherwise amount to an offence if done in defence of a person, defence of property or prevention of trespass to real property: Chapter 2 extends the meaning of “self defence” well beyond ordinary usage. It includes defence of a stranger and extends to action taken to prevent or terminate unlawful imprisonment. Self defence also extends to defence of real and personal property and prevention of trespass or removal of trespasses from land or premises. 10.4-B Self defence extends to include conduct which results from an unreasonable misapprehension of threatened harm: Unlike 10.2 Duress and 10.3 Sudden and extraordinary emergency, both of which require a reasonable apprehension of threatened harm, self defence is available even in circumstances where the defendant responded to an unreasonable apprehension of harm. The more unreasonable the tale of mistake, however, the more likely it is that it will be rejected by a the trier of fact as incredible.
Self defence does not excuse conduct unless it was a reasonable response to the perceived harm
Though the defendant is allowed the benefit of the defence when action is taken in response to an honest albeit unreasonable perception of threatened harm, the response to that perceived harm must be reasonable 10.4-D Unless harm to a person or imprisonment is threatened, self defence cannot excuse intentional infliction of death or really serious injury: Section 10.4 follows common law in its recognition that there are circumstances in which deadly force might be an excusable response to “injury, violation, or indecent or insulting usage”. 266 Self defence against threatened harm to the person does not require equality between the threat and the response. However, when interests other than personal safety are threatened, s10.4 limits the defence. It has no application in cases where death or personal injury is intentionally caused in defence of real or personal property, but there is no barrier to reliance on the defence when the charge is one of attempting to cause death or serious harm in defence of property. 10.4-E Self defence cannot excuse the intentional use of force against a person who is known to be acting lawfully: Self defence cannot excuse the use of force in order to avoid a threat of personal injury, property damage or trespass to land which is known to arise from the lawful conduct of another person. So, for example, conduct which would contravene one of the provisions in Ch7 – Division 147 – Causing harm to Commonwealth public officials cannot be excused on grounds of self defence if the victim of the offence is known to be acting lawfully. Note the distinction between self defence against lawful conduct and self defence against conduct which is merely excusable. So long as the defendant does no more than is reasonable in the circumstances, defensive measures can be taken against threats by individuals who are known to be irresponsible by reason of immaturity or mental impairment.
Chapter 2 contains “all the general principles of criminal responsibility that apply to any offence”: s2.1 Purpose. Accordingly it was necessary to provide a general defence which will excuse or justify conduct which is authorised by law. The law in question must be a law of the Commonwealth: Dictionary. Typical examples for an application of s10.5 are those provisions which confer investigatory powers on police and other officials, and permits for the import or manufacture of weapons, explosives or drugs…&c. The reference to conduct which is justified or excused “by or under a law” recognises that the authorisation may be indirect or implied, rather than explicit.267 As in other defences, the defendant bears the evidentiary burden: s13.3 Evidential burden of proof – defence. Once the defence is raised by evidence, the prosecution must prove beyond reasonable doubt that the conduct was not authorised.
EXTENSIONS OF CRIMINAL LIABILITY DIVISION
For simplicity and brevity, the discussion which follows refers to the offence which the defendant is charged with attempting as the “principal offence”. An attempt to commit an offence is punishable to the same extent as the principal offence. Liability for attempt is implied whenever a new offence is enacted, unless there is specific provision to the contrary269 or liability for attempt is incompatible with the nature of the principal offence.270 Offences can be attempted by omission no less than by active conduct, though instances of attempt by omission are likely to be rare.271 Conduct must be “more than merely preparatory” before it can provide a basis for conviction of attempt and it must be intentional. Circumstances and results which are elements of the offence must be either intended or known. In the large majority of offences, which require recklessness at most, the fault requirements for conviction of the attempt are more demanding than the fault requirements for the completed offence. Neither success nor impossibility of success is a barrier to conviction for attempt. 11.1-A Liability for attempt requires proof of intention or knowledge with respect to each physical element of the principal offence: Section 11.1(3) has two distinct effects when the defendant is charged with an attempt: • Fault must be proved with respect to each physical element of the principal offence: Though the principal offence may dispense with fault requirements, strict and absolute liability have no application when an attempt to commit that offence is charged;
in attempts is limited to intention and knowledge: Though the principal offence requires recklessness or negligence with respect to one or more physical elements, liability for an attempt to commit the offence requires proof of intention or knowledge with respect to that element. Each of these principles reflects the prevailing tendency of the common law.272 Provision for intention and knowledge as alternative forms of fault when attempt is charged avoids some problems which might otherwise arise under the heading of “impossibility” (for discussion of other impossibility problems, see below 11.1-E). A significant number of federal offences impose liability for conduct accompanied by knowledge of an incriminating circumstance. The Crimes Act offence of destroying evidence is typical.273 The offence is committed when a person intentionally destroys a document or any other potential piece of evidence, “knowing that…[it] is or may be required in evidence in a judicial proceeding”. Since truth and knowledge are indissolubly linked, the requirement of knowledge implies the need to prove that there was some real prospect that the thing destroyed would be required in court proceedings. However, when attempt is charged, that restriction on liability is outflanked. So long as the defendant destroys a document, or other potential evidence, in the belief that it will be required, the defendant acts intentionally with respect to the incriminating circumstance: 5.2 Intention. Since intention can substitute for knowledge in attempt, it is no answer to the charge that the defendant’s belief may have been utterly unfounded.
Offences of absolute or strict liability can be attempted
In offences which impose absolute or strict liability, the prosecution is not required to prove fault with respect to some or all physical elements of the offence: Ch 2: Division 6 – Cases where fault elements are not required. The rule is different, when an attempt to commit one of these offences is charged: the prosecution must prove intention or knowledge with respect to each element of the principal offence.
Conduct must go beyond mere preparation to commit an offence before it can amount to an attempt
Common law requires conduct proximate to the completed offence before liability is imposed for attempt. The common law requirement of proximity in attempts is the subject of continuing and unresolved contention. A variety of “tests” have been proposed by courts and commentators to determine when preparation ends and the criminal attempt begins.274 Chapter 2 abandons all these attempts to state a test and poses the issue in stark terms. The question is simply: Was the conduct of the defendant “more than merely preparatory”?275 The question requires a conclusion of fact to be drawn in the light of all the circumstances of the case. The South Australian Supreme Court decision in O’Connor v Killian276 anticipates the Code provision and provides an example of its application to the offence of attempt to obtain by false pretences. There is common law authority that the question whether the defendant has gone beyond mere preparation must be judged on the facts as the defendant perceived them.277 So, for example, a person who imports a bag of oregano in the belief that it is cannabis is guilty of an attempt to commit the offence of importing a prohibited substance: compare “impossibility”, below 11.1-E. Though nowhere near commission of the offence in reality, the would-be smuggler has passed well beyond mere preparation in their own mistaken conception of the facts. 11.1-D Success is no answer to a charge of attempt: At common law, a person charged with an attempt cannot escape liability on the ground that the offence has been completed.278 So also under the Code. The rule is one of common sense. If success were an answer to a charge of attempt, a trial judge would be required to instruct a jury to acquit a defendant entirely in circumstances where they were convinced beyond reasonable doubt that the offence was either attempted or completed but uncertain which of the two conclusions was true.
Impossibility of success is no answer to a charge of attempt
Chapter 2 confirms the emergent common law consensus that a person can be convicted of attempt though completion of the offence was impossible in the circumstances.279 Nor is impossibility a ground for concluding that the conduct of the defendant was not sufficiently proximate to the completed offence. The rule that impossibility of success does not bar conviction for attempt implies that the proximity issue is to be determined on the defendant’s perception of the facts: 11.1-C. As long as it can be said that the defendant is attempting an offence known to the law, Chapter 2 provides no basis for a distinction between “legal” and “factual” impossibility.280 Neither legal nor factual impossibility is a barrier to conviction for an attempt. That proposition should be distinguished, however, from the rule in s11.1(6) that “defences, procedures, limitations or qualifying provisions that apply to an offence apply equally to the offence of attempting to commit that offence”: discussed below, 11.1-F. 11.1-F Defences, procedures, limitations or qualifying provisions that apply to an offence apply equally to the offence of attempting to commit that offence: Most applications of the principle are obvious: self defence, duress and sudden or extraordinary emergency will excuse both assault and attempted assault. If Parliament chooses to impose a limitation period for prosecution of an offence, the limitation applies equally to the pendant offence of attempt. Applications of the principle cause no problem in these cases because the distinction between defences or procedural rules and the elements of an offence are obvious. Applications of the principle in cases involving “limitations” or “qualifying provisions” require more care. Take a simple example first of all. In state and territorial jurisdictions the traditional form of the prohibition against unlawful abortion takes the following form: “Whosoever, being a woman with child, unlawfully administers to herself…&c.”281 A woman who took an abortifacient drug in the mistaken belief that she was pregnant cannot be held guilty of the offence of course: pregnancy is an essential circumstantial element of the offence. Suppose she is charged instead with an attempt to commit the offence. It seems highly unlikely that the common law would permit conviction of an attempt in these circumstances. Since the attempt and completed offence are equally punishable at common law,282 the legislative rationale for restricting the offence to pregnant women applies with equal force to the attempt. If a provision such as s11.1(6) were to govern the interpretation of the offence it would reinforce that inference of legislative intention. The pregnancy limitation is a “limitation or qualifying provision” which governs the offence and the attempt alike. The Commonwealth Customs Act provisions on narcotic drugs contain a similar, though more contentious example. There is no doubt that a person who packs a parcel of oregano in a hollow walking stick and brings it into Australia, in the mistaken belief that it is cannabis, is guilty of an attempt to import cannabis, a prohibited import;283 impossibility of success is no answer to a charge of attempted importation. Suppose, however, that this incompetent is charged with one of the offences of attempted possession of a prohibited drug contrary to s233B(1).284 In each of these possession offences, conviction of the principal offence requires proof that the drug was “imported into Australia in contravention of this Act”. That limitation or qualification on liability for the principal offence should equally apply to the attempt so as to bar the possibility of conviction. The legislative rationale for the exception is the same, whether the attempt or completed offence is in issue. The contentious nature of the issues involved in marginal applications of the principle in s11.1(6) are particularly apparent in the recurring problem of the receiver or fence, who accepts goods in the mistaken belief that they are stolen.285 Australian common law probably holds that impossibility is no barrier to conviction of the fence for attempted receiving: 11.1-E. The same conclusion follows under the Code, where s132.1 Receiving requires proof of dishonest receipt of “stolen property knowing or believing the property to be stolen. Though the principal offence requires proof that the property was stolen, it is unlikely that this requirement can be said to amount to a “limitation or qualifying provision” which applies equally to the attempt. What then of the ubiquitous provisions which limit liability for federal offences to criminal activity involving Commonwealth property, personnel, buildings or other subjects of Commonwealth concern? There can be no liability for the completed offence, of course, unless the Commonwealth connection is proved. And clearly there is no liability for an attempt if the defendant had neither an intention to commit an offence relating to subject matter protected by federal law nor any belief on that score. Suppose, however, that a thief steals a car in the mistaken belief that it is a Commonwealth car. Or suppose an assault is made on a state or territorial police officer in the mistaken belief that the officer is a member of the Australian Federal Police. In these instances, the requirement of a Commonwealth connection is a “limitation or qualifying provision which applies to [the] offence” and prosecution for an attempt to commit one of the Code offences will fail. 286 11.1-G “Special liability provisions” which apply to the principal offence apply as well to the attempt: The Dictionary to the Criminal Code provides a definition of these provisions. There are three kinds of special liability provision: • Those which impose absolute liability for one or more but not all of the physical elements of an offence; or • Provisions which relieve the prosecution from the need to prove that the defendant knew a particular thing; or • Provisions which relieve the prosecution from the need to prove that the defendant knew or believed a particular thing. Special liability provisions have only one purpose in the Code. They relieve the prosecution from the need to prove fault with respect to elements of the offence which establish Commonwealth jurisdiction. Section 11.1(6A) extends the effect of the special liability provisions to the attempt. Crimes against humanity aside, federal offences are limited by the need for a connection between the offence and a subject matter of Commonwealth constitutional concern. In many instances the link will be established via physical elements of the offence. So, for example, the offence of theft is limited to property which belongs to a Commonwealth entity: s131.1 Theft. Receiving is limited in the same fashion: s132.1 Receiving. Bribery is limited to bribery of Commonwealth public officials: Part 7.6 – Bribery And Related Offences. In these examples, the circumstance which defines the offence as a subject for Commonwealth concern is, at the same time, a physical element of the offence.287 It follows that proof of recklessness with respect to the Commonwealth connection would be necessary, pursuant to 5.6 Offences that do not specify fault elements, unless provision is made to relieve the prosecution of the burden. Since the existence of a Commonwealth connection usually has no bearing on the blameworthiness of defendant’s conduct, special liability provisions are used to avoid the necessity for proof of fault with respect to the existence of the connection.288 In theft, liability is absolute with respect to the requirement that the property in question belong to the Commonwealth: s131.1(3). In bribery it is unnecessary for the prosecution to prove that the defendant knew that the official was a Commonwealth official [s141.1(2)] and in receiving it is unnecessary to prove that the defendant knew or believed that the property belonged to the Commonwealth: s132.1(2A). 11.1-H The penalty for attempt is the same as the penalty for the offence attempted: At common law, the penalties for attempt were not fixed. Legislation in most state and territorial jurisdictions now limits the penalty for attempt to some fraction of the penalty for the completed offence.289 In South Australia, for example, an attempt draws a maximum penalty of two thirds of the maximum penalty for the principal offence, in the absence of contrary provision.290 New South Wales, like the Commonwealth, sets the same maximum penalty for the attempt as it does for a completed offence. Though in practice an attempt usually draws a lesser sentence than a completed offence, the distinction is not always observed. In offences of fraud and trafficking in drugs, for example, there is often no difference in the degree of culpability between the completed offence and the attempt. 11.1-I Conviction for attempt bars subsequent prosecution for the completed offence: There is common law authority for the proposition that a person convicted of the principal offence cannot also be convicted of an attempt to commit that offence.291 Section 11.1(5) deals with the converse situation, where the prosecution seeks a conviction for the principal offence though the offender was convicted earlier of the attempt. Prosecutorial motives for launching the second prosecution might include the discovery of new evidence or the delayed occurrence of an element of the principal offence as, for example, when the victim of an attempted murder dies as a consequence of the defendant’s attack. Whatever the motive, Chapter 2 forbids a second prosecution. 11.1-J Liability for attempt does not extend to complicity or conspiracy: Though there is some common law support for the suggestion that liability can be imposed for an attempt to become an accomplice or attempted conspiracy,292 the Code does not permit further extension of these extended forms of liability by application of the law of attempt.
11.2 Complicity and Common Purpose Liability as an accomplice is derivative in the sense that it depends on proof that another person or persons combined with the defendant to commit the offence. Frequently the relationship will involve commission of all of the elements of the offence by a principal offender with the support and encouragement of the accomplice. It is also possible for individuals to combine in the commission of an offence as joint principals who will divide the conduct elements between them, each carrying out a part of the offence. Unlike attempt, incitement and conspiracy, complicity is not an independent offence. The accomplice is convicted of the same offence as the principal offender and is liable to the same penalty as the principal. The verdict does not specify whether the person was convicted as a principal or an accomplice. Though English common law permits an accomplice to be convicted of a higher crime than the principal in the first degree,293 the Code appears to preclude that possibility. The accomplice is guilty of the same offence as the principal.294 Since complicity is not an offence in its own right, it cannot be the subject of a charge of attempt, incitement or conspiracy. However, would-be accomplices in failed criminal endeavours can be guilty of incitement, conspiracy or as accomplices in attempts to commit the principal offence. Like the law of attempt, complicity requires proof of fault with respect to each element of the principal offence, though the principal offence may impose strict or absolute liability. The prosecution must prove that the defendant intended to aid, abet, counsel or procure the commission of an offence. If that can be proved, an accomplice who is reckless with respect to the risk that the principal will commit further offences can be convicted of those offences as well, if they eventuate. Liability as an accomplice is avoided if the defendant makes a timely and effective withdrawal from the criminal enterprise. 11.2-A Common law determines the meaning of the words “aids, abets, counsels or procures the commission of an offence”: The Model Criminal Code Officers’ Committee considered and rejected proposals to extend or restrict the traditional grounds for imposing liability on an accomplice.295 So far as the conduct element of complicity is concerned, Code and common law employ a common conceptual vocabulary and caselaw in common law jurisdictions has continuing relevance when the conduct element of complicity under the Code is in issue.
11.2-B The conduct of an accomplice must in fact aid and abet, counsel or procure: Conduct will amount to aiding, abetting or counsel though it cannot be said to have caused the commission of the principal offence. To procure an offence, however, is to cause or bring it about: 11.3-C. The requirement that the conduct of the accomplice amount “in fact” to aid, abetment or counsel, reflects the common law requirement that an accomplice “manifest…assent to [the principal offender’s] actions in a manner which promotes their performance….”296 It follows that counsel and abetment cannot amount to complicity unless the principal offender was aware of the defendant’s attempts to promote the criminal activities of the principal. However, liability as an accomplice can be incurred by a person who aids the commission of an offence, though the principal is completely unaware of the contribution made by the accomplice.297 Omission to perform a duty may amount to complicity by way of encouraging the performance of an offence by a principal offender who takes the omission as a tacit permission or, in the alternative, as aid to the principal offender.298 11.2-C Liability for complicity in an offence is not incurred unless the offence is committed: Since accomplice liability is derivative rather than direct, the prosecution must prove commission of the offence by the other person. Though proof of guilt is necessary, conviction of the other offender is not a prerequisite for conviction of the accomplice. The accomplice can be convicted though the other offender is never brought to trial or gains an acquittal. The principle of innocent agency supplements complicity, permitting conviction of a person who procured criminal conduct by another in circumstances where that person is innocent of any offence: s11.3 Innocent agency. 11.2-D Conviction of an offence does not require the offender to be identified as either a principal or an accomplice: In many instances the offence will be committed by an identifiable principal offender with the accomplice playing a subsidiary role by providing counsel or aid. However, identification of offenders as either principals or accomplices is unnecessary for the purposes of conviction. The accomplice and principal are both “taken to have committed [the] offence”: ss(1). There are two situations in which separation of the roles of principal and accomplice is unnecessary Where it is uncertain whether the defendant was principal or accomplice: Conviction of the principal offence is returned if it is established beyond reasonable doubt that the defendant was either principal or accomplice; it is unnecessary to determine which of those roles was played by the defendant.299 • Where two or more individuals combine their activities, each engaging in conduct which amounts to complementary elements of an offence: Common law describes offenders as joint principals when they divide the performance of the criminal conduct among themselves. For example, D1 may deceive V so as to enable D2 to take delivery of goods pursuant to the deception: s134.1 Obtaining property by deception. Recognition of the possibility that offenders may be guilty as joint principals under the Code is implicit rather than express. When each participates in the criminal conduct so that the conduct elements of the offence are divided between them, each plays the role both of principal and accomplice. 11.2-E Liability as an accomplice requires proof of intention to aid, abet, counsel or procure the commission of an offence: Intention in complicity is intention “with respect to conduct”: 5.2 Intention. It follows from s5.2(1) that the prosecution must establish that the accomplice meant to aid, abet or counsel the principal or procure the commission of the offence. Recklessness with respect to a risk or likelihood that conduct might provide aid, encouragement, counsel or otherwise promote the commission of an offence is not a basis for conviction. The Code reflects the dominant common law view of the essential fault element in complicity.300 The requirement of an intention to aid, abet, counsel or procure the commission of an offence by the principal does not have to refer to a specific offence. Liability as an accomplice is incurred when the principal commits an offence “of the type” which the accomplice meant to promote: s11.2(3)(a). The language of the Code formulation goes no further than common law authorities in providing criteria for determining what constitutes a “type” of offence.301
It is necessary to emphasise that the liability of an accomplice is not restricted to offences of the type which the accomplice intended to promote. Proof that the defendant intended to promote an offence by a principal offender opens the door to liability for other offences committed by the principal. Common law extends accessorial liability to any offence which can be said to be within the scope of the offenders’ “common purpose”. Section 11.2 reformulates the doctrine of common purpose as a form of liability for recklessness: see 11.2-F. 11.2-F An accomplice who was reckless with respect to the risk that the principal would go on to commit additional offences is guilty of those offences if they eventuate: Accomplices, who intentionally promote the commission of an offence by another, become hostages to fortune. Once they aid, abet, counsel or procure a particular type of offence, the accomplice can incur liability for any other type of offence committed by the principal.302 The fault element of recklessness rather than intention governs liability for the additional offences. The requirements for this extension of liability can be summarised. An accomplice who meant to promote commission of offence of type A, is liable for offence of type B, committed by the principal offender, when: • Conduct meant to promote offence A “in fact”303 aids, abets, counsels or procures the commission of offence B by the principal offender; and • The accomplice is reckless with respect to a substantial risk that their conduct would aid, abet, counsel or procure the commission of offence B by the principal offender; and The requirement of recklessness in this extended form of liability does not, in the usual run of cases, require proof that the accomplice was reckless with respect to the results of their conduct on other individuals. Liability for aid, abetment and counsel is imposed because these activities promote or conduce to the commission of the principal offence; the prosecution is not required to show that the conduct of the accomplice caused the principal to act.304 Accessorial liability pursuant to the common purpose rule for the additional offence committed by the principal requires proof that the accomplice engaged in conduct which provided aid, counsel or procurement coupled with recklessness with respect to the elements of the principal’s offence, which include each of the physical and fault elements which constitute the principal offender’s liability. The common purpose rule is unusual because it includes, among the circumstances which constitute the physical elements of complicity, the conduct, intentions and knowledge or state of awareness of another person – the principal offender.
The common law doctrine of common purpose is satisfied on proof that the accomplice realised that commission of the additional offence was “possible”. 306 In the Code, however, reliance on recklessness in the formulation of common purpose requires proof that the accomplice realised that there was a “substantial risk” that the principal would commit the additional offence. The nature of the difference, if any, between Code requirement of “substantial risk” and common law “possibility” is discussed at 5.4-A. 11.2-G Liability as an accomplice is not incurred by a person who makes an effective withdrawal from commission of the offence: Common law recognises that withdrawal can bar conviction as an accomplice.307 The Code requires the erstwhile accomplice to terminate their involvement in the offence and to take all reasonable steps to prevent the commission of the offence: s11.2(4). The statutory criteria for termination or withdrawal reflect the requirements of the common law test proposed by Gibbs J, as he then was, in White v Ridley. 308 The Model Criminal Code Officers’ Committee listed examples of what might amount to reasonable steps to prevent commission of the offence: “…discouraging the principal offender, alerting the proposed victim, withdrawing goods necessary for committing the crime (eg a getaway car) and/or giving a timely warning to an appropriate law enforcement authority.”309 The requirement of reasonable steps is an implied concession that withdrawal or termination is still possible though attempts to prevent the offence prove to be ineffectual. There will be cases, that is to say, where the defendant escapes liability though the principal offender goes on to commit the offence, relying on assistance provided by the defendant before withdrawal. Since the defendant may escape liability though each of the requirements for complicity are proved, it is apparent that termination or withdrawal takes the form of a defence or excuse, rather than a denial of liability: discussed 3.1-A. 310 Withdrawal or termination will not be considered by the court unless the defendant can point to evidence in support of the excuse: s13.3 Evidential burden of proof – defence. 11.2-H The common law doctrine of “acting in concert” has no counterpart in the Code: At common law offenders who “act in concert” in the commission of an offence are said to be parties to a “joint criminal enterprise”. 311 The New South Wales Court of Criminal Appeal gave a succinct and authoritative statement of the doctrine in Tangye: 312 [W]here two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise….A joint criminal enterprise exists when two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express….A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed. In its current version, enunciated by McHugh J in the High Court decision in Osland, 313 the essential defining element of the doctrine of acting in concert is that liability is taken to be direct rather than derivative. Since the conduct of each of the participants in a joint enterprise is attributed to each of the others, all are taken to be principal offenders.314 If A and B agree to steal a vehicle belonging to C, each is taken to have appropriated the vehicle though one keeps watch while the other drives the vehicle away. The doctrine has no existence under the Code. The argument in support of that assertion is short and conclusive. • The Code “contains all the general principles of criminal responsibility that apply to any offence”; it cannot be supplemented by extraneous principles imported from the common law: s2.1 Purpose; • Liability under the Code requires proof of: i “such physical elements as are, under the law creating the offence, relevant to establishing guilt”: s3.2 Establishing guilt in respect of offences; or ii conduct which matches the requirements of s11.2 Complicity and s11.3 Innocent agency. • These possibilities exhaust the grounds for imputation of criminal conduct under the Code. Complicity is a derivative form of liability and the doctrine of innocent agency is restricted to instances where criminal conduct is procured by the principal. Since the doctrine of joint criminal enterprise, or acting in concert, is taken to be a form of direct liability, it is incompatible with the structure of the Code and has no place in Commonwealth criminal jurisprudence. 11.2-I “Special liability provisions” which apply to the principal offence apply as well to the liability of an accomplice: The Dictionary to the Criminal Code provides a definition of special liability provisions. There are three varieties: • Provisions which impose absolute liability for one or more but not all of the physical elements of an offence; or • Provisions which relieve the prosecution from the need to prove that the defendant knew a particular thing; or • Provisions which relieve the prosecution from the need to prove that the defendant knew or believed a particular thing. Special liability provisions have only one purpose in the Code. They relieve the prosecution from the need to prove fault with respect to elements of the offence which establish Commonwealth jurisdiction. Section 11.2(6) extends the effect of the special liability provisions to complicity. An identical provision appears in 11.1 Attempt where it is discussed at greater length in 11.1-G.
The principle of innocent agency permits conviction of an offender who uses another as their instrument to commit an offence. In the 19th century English case of Michael, 315 a mother gave a vial of poison to her baby’s nurse, told her it was medicine and asked her to administer it to the baby. The mother intended the baby to die. The nurse did not comply with the request, but her five year old son found the vial and administered the fatal dose. In circumstances such as these, the principle of innocent agency imputes the act of the innocent child to the mother. Since the mother intended the death of her baby and the act of administration of the poison by her unwitting agent is taken to be her own act, she is guilty of murder. The principle also extends to include cases where the principal is excused from liability on grounds of insanity or the like.316 The principle is an adjunct to complicity, enabling conviction of an instigator in circumstances where the guilt of an individual who engaged in the proscribed conduct cannot be established. 11.3-A Conduct of another person which constitutes a physical element of an offence may be attributed to a defendant who procured that conduct: The principle applies whether the conduct of the agent encompasses all or only some physical elements of an offence. If A induces an unwitting dupe to take goods belonging to B from a storeroom and bring them to A, the conduct of the dupe is attributed to A. The same conclusion follows in circumstances where the unwilling agent is induced to collect the goods by threats. If A was dishonest, intending to deprive B of the goods without consent, the offence of theft is complete when the dupe collects the goods. So also when a drug importer users the services of an unwitting carrier to bring a prohibited drug into Australia.317 The offence is complete when the carrier enters Australia with the prohibited drug. In these instances, the principle applies though nothing done by the offender matches the conduct elements required for guilt. If, on the other hand, A posts a fraudulent order for goods to B and sends the unwitting dupe to collect the goods, the offence of obtaining by deception is constituted by combining A’s conduct in deceiving B with the conduct of the dupe, who obtained the goods. 11.3-B A defendant who has a personal defence, immunity or exemption from liability is not liable for the conduct of their innocent agent: The principle is formulated in terms which absolve a defendant from liability unless the conduct of the innocent agent “would have constituted an offence on the part of the procurer if the procurer had engaged in it”. Section 11.3 implicitly rejects the decision in Cogan & Leak, 318 which held that a husband could be convicted of rape committed through the agency of an unwitting dupe though, at that date, a husband was immune from conviction for rape of his wife.319 Under the Code formulation of the innocent agency principle, attribution of the conduct of the dupe to the husband would not “constitute” the offence of rape. An example of more practical importance is provided by federal offences which can only be committed by Commonwealth public officials. In these, the principle of innocent agency does not permit conviction of a person who is not a Commonwealth official. Suppose, for example, a defendant compelled a Commonwealth official by threats amounting to duress to engage in the conduct proscribed in the Code, Ch 7, s142.2 Abuse of public office. Though the conduct of the official can be attributed to the defendant, whose activities were actuated by the requisite dishonest intention to derive a benefit, liability does not follow. If the defendant is not an official, an essential element of the offence is missing. 11.3-C The conduct of another is procured by an offender when it is intentionally caused or brought about: Dictionary definitions of procuring, in the relevant sense, require a causal link between the act of the procurer and the conduct of the other person.320 That requirement of a causal link differentiates procuring from abetment, or the provision of aid or counsel. So, for example, a motor car passenger who plies the driver with alcoholic beverages, aids and abets the driver’s offence of driving under the influence. If the passenger administers the alcohol surreptitiously, however, in circumstances where the driver is unaware of their state of intoxication, the resulting offence is procured by the passenger.321 Australian caselaw is consistent with the suggestion that a causal link is required though the distinctions between procuring conduct and abetting, counselling or aiding conduct remain obscure.
Reliance on the principle of innocent agency does not require proof that the agent was innocent
The principle is meant to merge seamlessly in its applications with s11.2 Complicity and common purpose. 323 Though the name of the principle suggests that it can only apply when the agent is an innocent, the suggestion is misleading. Section 11.1 is not limited to cases involving innocent agents – the heading of the section is a convenient and familiar name for the principle which does not determine its applications.324 Viewed in this light, s11.3 is an extension of the law of complicity and, in particular, of s11.2(5), which declares that liability as an accomplice can be incurred even though “the principal offender has not been prosecuted or has not been found guilty”. That provision presupposes that proof of the guilt of the “principal offender” is a prerequisite for conviction of the accomplice, though the principal offender cannot be brought to justice. The principle of innocent agency dispenses with that presupposition, subject to one requirement: the defendant must be proved to have procured the conduct of the other as their agent: 11.3-C.
Incitement, like attempt and conspiracy, is a separate and distinct offence from the offence which is the subject of incitement. Attempt, incitement and conspiracy can overlap in their applications to criminal conduct. One who sends a hired thug on an unsuccessful foray to injure a Commonwealth public official incites an offence, conspires with the thug and attempts the offence, for the offender has gone beyond mere preparation to commit an offence against 147.1 Causing harm to a Commonwealth public official. Unlike attempt and conspiracy, however, incitement is not punishable with the same severity as the principal offence. Though incitement is a preparatory offence, akin to attempt, there is no impediment to conviction of incitement in circumstances where the principal offence has been committed.325 In practice, incitement which succeeds in its object will usually result in conviction for the principal offence as an accomplice. Unlike conspiracy, which cannot be attempted, it is an offence to attempt to incite another.326 However, there can be no liability in the converse cases of incitement to conspire, incitement to attempt or incitement to incite.327 The extensions of criminal liability for preparatory crime cannot be piled one on the other in an infinite regress. Since the prohibition of incitement penalises communication, restricting freedom of expression, liability is narrowly limited to communications which are intended to promote the commission of an offence. Incitement does not extend to instances of recklessness with respect to the effects which speech or other communication might have in providing an incentive or essential information for the commission of crime. 11.4-A A person who urges another to commit an offence, with the intention that the offence be committed, is guilty of incitement: The restriction of liability to circumstances in which the defendant “urges” the commission of an offence narrows the common law, which traditionally imposed liability for incitement when the offender “counsels, commands or advises” the commission of an offence.328 The Code formulation was intended to emphasis the necessity for proof that the activity of the defendant was meant to encourage the commission of the offence: The Model Criminal Code Officers Committee “was concerned that some courts have interpreted ‘incites’ as only requiring that D causes rather than advocates the offence”. 329 Since the conduct element of incitement is urging another to commit an offence, it follows that the prosecution must prove that the offender meant to urge the other to commit an offence: 5.2 Intention. The requirement of intention that the offence be committed in ss(2) reinforces the implications which arise from the prohibition against “urging” the commission of an offence. This is a requirement of ulterior intention, not intention: discussed 5.2-D. Intention accordingly bears its ordinary meaning here, requiring proof that it was the offender’s object to induce commission of the offence incited. 11.4-B The Code imposes liability for an attempt to incite an offence against Commonwealth law: Liability for incitement requires proof of communication, since one cannot urge another to a course of action unless the other is conscious of the defendant’s command, request, plea or shouts of encouragement. However, failed attempts to communicate an incitement are punishable as an attempt to incite330 and punishable to the same extent as if the incitement had been communicated. 11.4-C Impossibility of success is no answer to a charge of incitement: English common law would allow impossibility to defeat a charge of incitement.331 In Australia, the emergent common law consensus that impossibility is no answer to a charge of attempt would probably persuade courts in most jurisdictions to adopt the same rule for incitement. The issues which arise for discussion of the effect of impossibility are essentially the same, whether incitement or attempt is in issue: discussed 11.1-E. The Code declares that a person can be convicted of incitement though it is impossible to commit the principal offence: ss(3). So long as it can be said that the defendant urged the commission of an offence known to the law, there is no ground for distinction between “legal” and “factual” impossibility. Though impossibility is no answer to a charge of incitement, ss(4) provides that “defences, procedures, limitations or qualifying provisions that apply to an offence apply equally to the offence of attempting to commit that offence”: discussed below, 11.4-D.
Defences, procedures, limitations or qualifying provisions that apply to an offence apply equally to the offence of incitement to commit that offence
This limiting principle is common to attempt, incitement and conspiracy. Difficulty is unlikely to be encountered when a person charged with incitement claims the benefit of a defence or procedural limitations. The issue of potential difficulty, as in attempts, is whether a particular defining element of an offence is a “limitation or qualifying provision” which bars liability both for the completed offence and the incitement. Applications are discussed above: 11.1-F. 11.4-E “Special liability provisions” which apply to the principal offence apply as well to the liability for inciting that offence: The Dictionary to the Criminal Code provides a definition of special liability provisions. There are three varieties: • Provisions which impose absolute liability for one or more but not all of the physical elements of an offence; or • Provisions which relieve the prosecution from the need to prove that the defendant knew a particular thing; or • Provisions which relieve the prosecution from the need to prove that the defendant knew or believed a particular thing. Special liability provisions have only one purpose in the Code. They relieve the prosecution from the need to prove fault with respect to factors which establish Commonwealth jurisdiction over the offence. Section 11.4(4A) displaces the usual rules which govern the proof of fault in federal offences. An identical provision appears in s11.1(6A) Attempt where it is discussed at greater length in 11.1-G. 11.4-F The penalty for incitement is determined by the penalty for the offence incited: Unlike attempt and conspiracy, which are punishable with the same severity as the principal offence, maximum penalties for incitement are determined by a statutory scale of lesser penalties.
Conspiracy, like incitement and attempt is an offence distinct from the principal offence which is the subject of the conspiracy. As in incitement and attempt, the essential element in liability is intention that an offence be committed. Unlike those offences, liability for conspiracy requires proof that the intention was shared, by at least one other person. The Code follows common law and permits conviction of a corporation for conspiracy.332 The conditions which govern liability of the corporation are, of course, significantly different from those which will govern the liability of an individual actor: Part 2.5 – Corporate Criminal Responsibility. 333 The charge of conspiracy has been described as “an increasingly important weapon in the prosecutor’s armoury”. 334 Courts and legal texts temper the benefits which the charge offers to the prosecution with warnings against its potential for oppression and injustice.335 The effect of these warnings is apparent in the report accompanying MCC, Chapter 2: General Principles of Criminal Responsibility, 336 which provided the model for 11.5 Conspiracy. The Code provisions on conspiracy include three procedural protections which distinguish it from the other preparatory offences: • Offences which are punishable by imprisonment for less than 12 months or a fine of 200 penalty units337 cannot be the subject of a charge of conspiracy [11.5(1)]; • Commencement of proceedings for conspiracy requires the consent of the Director of Public Prosecutions [11.5(8)]. • Courts are empowered to dismiss charges of conspiracy if they are of the view that the interests of justice require dismissal [11.5(6)]. The most likely occasion for use of this power is when conspiracy is charged in lieu of a substantive offence.338 Just as 11.2 Complicity is extended by 11.3 Innocent agency, so also conspiracy is extended by provisions which permit one conspirator to be convicted though other parties to the criminal agreement escape conviction: 11.5-G/H.
The Code offence of conspiracy is identical, in all significant respects, with s86 of the Crimes Act 1914, which was amended in 1995 to match the conspiracy provisions of the Model Criminal Code. 11.5-A Liability for conspiracy requires proof that the defendant entered an agreement with another person with the intention that an offence would be committed, pursuant to the agreement: The physical element of the offence is entry into an agreement339 – conduct which involves, of necessity, an intentional act.340 That act must be accompanied by an ulterior intention, shared by at least one other party to the agreement, that an offence will be committed pursuant to the agreement.341 The definition in 5.2 Intention has no application: discussed 5.2-D. The Code requirement of intention that the offence be committed faithfully reflects Australian common law. Recklessness with respect to the risk that another party to an agreement might commit an offence in pursuit of agreed objectives is not sufficient for conviction of conspiracy.342 It is possible that the requirement of intention “that an offence would be committed” will give renewed life to an argument associated with the discredited doctrine that impossibility bars conviction for conspiracy: discussed 11.5-I. The decision of the NSW Court of Criminal Appeal in Barbouttis, 343 which involved a charge of conspiracy to receive stolen goods, revisits these issues.344 Police set a trap for a suspected receiver of stolen goods, baited with cigarettes donated by a cigarette company. The defendants were caught when they agreed to buy the cigarettes from an undercover police officer who told them that the cigarettes were stolen. A majority of the Court held that there was no conspiracy on the ground that there was no intention to commit an offence. On the majority view, the defendants intended to receive a particular lot of 50 cartons of cigarettes that was not, in fact, stolen. Hence, it was concluded by the majority, they did not intend to commit an offence. Gleeson CJ dissented vigorously. There is little point in canvassing, yet again, the arguments for and against this characterisation of the defendant’s intentions. The literature is voluminous and the Barbouttis case provides a more than adequate account of its complexities.345 The issue is raised again in these guidelines because it continues to divide courts and it has not been resolved in the Code: • Though s11.5(3)(a) declares that impossibility is not a barrier to conviction for conspiracy, the issue in this case is not one of impossibility: Gleeson CJ (who dissented) and Dunford J (of the majority) were in agreement on that point. For them, the issue was whether the prosecution could prove the fault element of intention to commit an offence; • The Code lends itself to the suggestion that different considerations govern the outcome depending on whether an attempt or conspiracy is charged in cases where the receiver’s trap is baited with goods which are not stolen. When attempt is charged, the question is whether the prosecution can prove “intention or knowledge in relation to each physical element of the offence attempted”. In conspiracy the question is whether the defendant(s) intended “that an offence would be committed”. It is certainly arguable that the difference in the description of fault elements in attempt and conspiracy should not lead to different outcomes. Whatever the merits of that argument, the continuing history of division in courts and in legal comment suggests that the issue remains, for the present at least, unresolved. 11.5-B Offences of absolute or strict liability can be the subject of conspiracy: In offences which impose strict or absolute liability, the prosecution is not required to prove fault with respect to some or all physical elements of the offence: Ch 2: Division 6 – Cases where fault elements are not required. When conspiracy is charged, however, the prosecution must prove entry into an agreement with the intention that an offence will be committed, pursuant to the agreement. The requirement of intention extends to each physical element of the offence, displacing strict or absolute liability. The Code reflects the common law on the fault required for conspiracy to commit offences which impose strict or absolute liability.346 The requirement of fault is subject, however, to an exception when elements of the offence which establish a link with Commonwealth jurisdiction are in issue; it is suspended for the “special liability provisions”: 11.5-K. 11.5-C Conspiracy requires two or more people to agree to commit an offence: There is no conspiracy if only one of those who enter an agreement to commit an offence intends that it will be committed. An agent provocateur can entrap an offender into incitement [s11.4], which is a unilateral offence, but not a conspiracy, which requires agreement. Though s11.5(2)(a) and (b) require two or more individuals to agree on the commission of a crime, it is quite consistent with these requirements that only one offender is guilty of conspiracy. Unlike common law, the Code permits a party to the agreement to avoid liability for conspiracy by timely withdrawal [s11.5(5)]. Effective disengagement from liability by one conspirator does not absolve the other from criminal liability. Moreover, defences or excuses which exculpate one party to a criminal agreement will not vicariously confer immunity on another: 11.5-G. 11.5-D Conspiracy requires proof of an overt act in pursuance of the conspiracy: The Code departs from common law, which does not make the occurrence of an overt act an essential element of the conspiracy.347 The Model Criminal Code Officers Committee justified this addition to the physical elements constituting the offence on the ground that “simple agreement to commit a criminal offence without any further action by any of those party to the agreement [is] insufficient to warrant the attention of the criminal law”. 348 Apart from the requirements that the overt act must be “overt” and done “pursuant to the agreement”, no criteria for identifying the overt act are specified. It is sufficient if the overt act is done by any party to the conspiracy. When the overt act is done by a person other than the defendant it is a circumstantial element of the defendant’s liability. Though s5.6(2) requires proof of recklessness with respect to the other’s act that requirement will rarely, if ever, be an impediment to conviction. Since conspiracy requires proof of an intention that the offence be committed, fellow conspirators necessarily intend that active members of the conspiracy engage in overt acts in pursuance of the agreement. Proof of that intention satisfies the fault element for the circumstantial overt act.349
The requirement of an overt act marks the point beyond which withdrawal from the agreement or termination of the defendant’s role will not bar liability for conspiracy: 11.5-E. 11.5-E
Liability as a conspirator is not incurred by a person who makes an effective withdrawal from the conspiracy
Common law conspiracy is complete on entry into the agreement to commit an offence. Introduction of the requirement of an overt act, as a formal element of Code conspiracy, has the consequence that there is an interval between the conspirators’ agreement and the first overt act in pursuance of the agreement, when the offence has not yet been committed. Withdrawal from the agreement during this interval can provide the defendant with a defence or excuse for entering the conspiratorial agreement. Withdrawal must be accompanied, however, by “reasonable steps to prevent commission of the offence”. The requirements for effective withdrawal are the same as those in the related defence of withdrawal from complicity: discussed 11.2-G. There is a potentially significant distinction between withdrawal in conspiracy and withdrawal in complicity, when parties have made an agreement to commit an offence. The accomplice avoids liability for the principal offence if an effective withdrawal is made at any time before commission of the planned offence. In conspiracy, however, the period of grace is far more limited. The conspirator must withdraw before another conspirator begins, by some overt act, to put the agreement into effect. Defendants who withdraw and avoid liability for complicity may leap from the frying pan into the fire. A timely withdrawal from complicity may be too late to avoid liability for conspiracy. The penalty for the conspiracy is the same, of course, as the penalty for complicity in the complete offence. Since the defendant may escape liability though each of the requirements for conspiracy are proved, it is apparent that termination or withdrawal takes the form of a defence or excuse, rather than a denial of liability.350 Withdrawal or termination will not be considered by the court unless the defendant can point to evidence in support of the excuse: 13.3 Evidential burden of proof – defence. 11.5-F A person “for whose benefit or protection an offence exists” cannot be guilty of conspiracy to commit that offence: Laws designed to protect children against sexual predators are the most obvious instances where agreement to commit the offence will not result in criminal liability for the prey.351 Whether or not a person belongs to the class of those “for whose benefit or protection an offence exists” is a question which may often be open to argument.352 Offences which take this form are, in any event, rare in federal jurisdiction. No corresponding limitation is placed on the potential liability of members of the protected classes who are charged with complicity [s11.2] or incitement [s11.4]. 11.5-G Liability for conspiracy is incurred though the other party to an agreement to commit an offence is not criminally responsible: The essential elements of conspiracy are an agreement by two or more individuals to commit a criminal offence and an overt act by one of them, in pursuance of the agreement. When two individuals agree together to commit a crime it is quite possible that only one of them will be criminally responsible for entering the agreement. The immunity of one of the conspirators does not confer vicarious immunity on the other: • Personal defences available to one of the parties to the criminal agreement will not enure to the benefit of the other. Liability for conspiracy is incurred by a person who enters an agreement to commit an offence with a person entitled to a mental impairment defence,353 duress and other general defences; • A party to the agreement who commits an overt act in pursuance of the agreement, after the other has withdrawn is guilty of conspiracy: discussed 11.5-E; • A party to an agreement to commit an offence with a person for whose benefit or protection an offence exists is guilty of conspiracy: discussed 11.5-F. 11.5-H A defendant charged with conspiracy may be convicted though the offence cannot be proved against others: The Code follows Australian common law354 and permits conviction of one of several parties to an alleged conspiracy though the charge cannot be proved against the remaining parties to the agreement. No distinction is drawn between joint and separate trials of the alleged conspirators. Acquittal of others charged with conspiracy will not protect the remaining defendant unless a finding of guilt “would be inconsistent with their acquittal” [[s11.5(4)(a)].355 The provisions which allow conviction of a conspirator though the charge cannot be proved against others are, necessarily, addressed as much to appellate tribunals as to the court which will try the charge of conspiracy against a defendant. 11.5-I Impossibility of success is no answer to a charge of conspiracy: The rule is expressed in terms identical to its expression in the offences of attempt [s11.1(4)(a)] and incitement [s11.4(3)]. Here, as in those provisions, the Code confirms the emerging common law consensus that a person can be convicted of the preparatory offence though completion of the principal offence is impossible:356 discussed 11.1-E. The proposition that impossibility does not bar conviction for conspiracy should be distinguished from the rule that “defences, procedures, limitations or qualifying provisions that apply to an offence apply also to…conspiracy to commit that offence” [s11.5(7)]: discussed 11.5-J. It should be distinguished as well from the argument that the “intention to commit an offence”, necessary for a conspiracy conviction, might be absent in certain cases where commission of the offence was impossible: discussed 11.5-A. In short, impossibility is no answer to a charge of conspiracy. But arguments that were once presented under that description may be redeployed in another guise. 11.5-J Defences, procedures, limitations or qualifying provisions that apply to an offence apply equally to the offence of conspiracy to commit that offence: Application of the principle to defences and procedural provisions unlikely to cause difficulty. Duress will excuse a defendant who was compelled to agree to the commission of an offence and a statutory limitation period for prosecution of an offence applies equally to the pendant offence of conspiracy. In these cases the distinction between defences or procedural rules and the elements of an offence are obvious. Applications of the principle in cases involving “limitations” or “qualifying provisions” require more care. The issues encountered are the same, in all essential respects, as in the parallel provisions for attempt [s11.1(6)] and incitement (s11.4(4)]: discussed 11.1-F. 11.5-K “Special liability provisions” which apply to the principal offence apply as well to conspiracy: The Dictionary to the Criminal Code provides a definition of these provisions. There are three kinds of special liability provision: • Those which impose absolute liability for one or more but not all of the physical elements of an offence; or • Provisions which relieve the prosecution from the need to prove that the defendant knew a particular thing; or • Provisions which relieve the prosecution from the need to prove that the defendant knew or believed a particular thing. Special liability provisions have only one purpose in the Code. They relieve the prosecution from the need to prove fault with respect to elements of the offence which establish Commonwealth jurisdiction. Section 11.5(7A) extends the effect of the special liability provisions to conspiracy to commit the offence. The issues encountered are the same, in all essential respects, as in the parallel provisions for attempt [s11.1(6A)] and incitement (s11.4(4A)]: discussed 11.1-G.
CORPORATE CRIMINAL RESPONSIBILITY DIVISION
states general principles of corporate criminal responsibility to govern the great majority of criminal offences. It will not cover all offences however. Part 2.5 is displaced, in a number of instances, by special provisions for attributing physical or fault elements of particular offences to corporations. So, for example, the Trade Practices Act 1974, Part XIC – Telecommunications access regime, which contains a number of offences, concludes with s152EO, which supplants the provisions of Part 2.5 of the Code. So also in offences against the Ozone Protection Act 1989.357 The principles of Chapter 2 of the Code will apply elsewhere, however, unless displaced by specific legislation. To avoid unnecessary repetition, references to corporate “employees, agents or officers” have been abbreviated, where appropriate, to “agents”.
The fundamental principle of corporate criminal liability is that the Code applies to bodies corporate in the same way as it applies to individuals. The general principles of liability including, in particular, those in Part 2.2 – The elements of the offence, apply to corporations and individuals alike. Since those general principles are all stated in language reflecting their development as principles of individual responsibility, translation and adaptation is required when corporate wrongdoing is in issue. The rules set out in Part 2.5 translate fault elements as they apply to individuals into their corporate equivalents. Chapter 2 defences in 9.2 Mistake of fact and 10.1 Intervening conduct or event are varied and restricted in their application to corporations. However, there will remain a need to fashion concepts developed for determining individual responsibility to the contours of corporate wrongdoing. Section 12.1, which declares that Code provisions are to be modified when necessary for this purpose, is a clear legislative invitation to courts to use a measure of creativity in the exercise of their interpretive powers. It is an unusual provision and one that has no counterpart elsewhere in the Code. The principal changes effected by the Code provisions on corporate criminal responsibility spring from the utilisation of a principle of “organisational blameworthiness”. 358 To a considerable degree, issues of individual responsibility of employees, agents and officers of the corporation have been distinguished from the issue of corporate criminal responsibility. There is a corollary of some significance. Since corporations which engage in crime will be implicated, usually by the acts and omissions of their individual, in most instances, human agents, it is necessary to impose limits on the extent to which their conduct or fault can be attributed to the corporation. The concept of “due diligence,” which has no role to play when the liability of individuals is in issue, forms part of the ensemble of criteria which determine the limits of organisational blameworthiness: see ss12.3(3) and 12.5 Mistake of fact (strict liability). 12.1-A The Criminal Code applies to corporations in the same way as it applies to individuals: This is the most fundamental of the principles governing corporate criminal liability. It is obvious, however, that Code provisions must be adapted or modified when corporate liability is in issue. Though the conduct elements of offences – acts, omissions or states of affairs – may be brought into existence directly, by corporate action or inaction, most offences committed by corporations will result from the acts and omissions of corporate agents. In the general run of offences, the prosecution will find it necessary to rely on rules which permit the attribution of an agent’s acts and omissions to the corporation. When fault is in issue, rules for attributing the fault of agents to the corporation are essential in all cases. The Code accepts the premise that an attribution of intention, knowledge and recklessness cannot be made in the absence of proof of fault on the part of some individual agent of the corporation. The innovation introduced by the Chapter 2 provisions is to be found in the degree to which they accept a principle of corporate organisational responsibility for the conduct of individuals.359 Acceptance of that principle is evident in five distinct contexts of application: • Attribution of acts and omissions of any corporate agent to the corporation, so long as they are within the actual or apparent scope of employment or authority: s12.2 Physical elements; • Attribution of the intentions, knowledge or recklessness of any corporate agent to the corporation, if commission of the offence in issue is an expression of a corporate culture of non-compliance, or of failure to maintain a corporate culture of compliance, with the law: s12.3(2) Fault elements other than negligence; • Attribution of negligence to a corporation in circumstances where no individual agent of the corporation is negligent: s12.4 Negligence; • When liability is strict, corporations which fail to exercise due diligence in management or supervision are barred from vicarious reliance on an agent’s reasonable mistake of fact: s12.5 Mistake of fact (strict liability); • When liability is strict or absolute, corporations cannot rely on acts or omissions of an agent, no matter how unpredictable, to provide a basis for a defence of intervening conduct or event: s12.6 Intervening conduct or event. 12.1-B A body corporate may be found guilty, as a principal offender, of any offence of general application: The principle that corporations are subject to all criminal prohibitions of general application is supplemented by s4B of the Crimes Act 1914, which permits a fine to be imposed on a corporation for an offence which requires imprisonment of individual offenders. There are some offences, however, which a corporation cannot commit as a principal because liability is restricted to particular categories of person. Obvious examples are the Code offences which can only be committed by a “Commonwealth officer”
So far as offences of general application are concerned there is no impediment to conviction of a corporation.361 The acts of individuals who are employed by a corporation or who act as its agents or officers, are imputed to the corporation if the acts are within their apparent scope of employment or authority: s12.2 Physical elements. So, for example, there is no impediment to corporate conviction for the Code offence of impersonating a Commonwealth public official: s148.1. The conduct of the impersonator can be imputed to the corporation. The full range of Chapter 2 fault elements – intention, knowledge, recklessness and negligence can be imputed to a corporation. A corporation can conspire with its own agents; it can be an accomplice in offences committed by its agents and it can incite the commission of a crime by an agent. Whatever doubts there may have been at common law on these issues,362 they have been dissipated by the Code. The significance of derivative corporate liability for conspiracy or complicity may diminish in importance, however, as a consequence of the acceptance of a principle of organisational responsibility in Chapter 2. There is no need to resort to these extensions of criminal liability if the corporation can be charged as a principal offender.
In the large majority of offences, it is impossible for a corporation to engage in conduct363 unless it does so via the medium of a human agent. To return to an earlier example, though a corporation might commit the offence of impersonating a Commonwealth officer, it could not achieve that feat without the co-operation of one of its own employees, agents or officers. Section 12.2 is not exhaustive; it is limited to the attribution of physical elements of offences committed by a corporate agent. In some offences, the conduct elements of an offence can be attributed to a corporation directly as acts or omissions of the corporation itself. Instances of direct attribution are not uncommon in existing law. So, for example, a corporation causes environmental pollution if it permits the escape of pollutant from its plant.364 In these instances is not necessary to discover some particular individual or set of individuals whose actions or inaction might have resulted in pollution before attributing the conduct of causing pollution to the corporation. Liability may indeed arise from corporate omission to appoint some individual whose responsibility it was to ensure that the pollutant did not escape. Nor is direct attribution of conduct elements of an offence to a corporation limited to omissions. In some offences, the corporation is the active agent, as in offences of “sale” or “trading” in prohibited goods. Section 12.2 attributes “physical elements” of an offence “committed by” a corporate agent to the corporation. The reference to physical elements “committed by” the agent implies that only conduct elements are attributed to the corporation under this provision. Circumstantial elements of the offence are taken to be circumstances in which the corporation engaged in the attributed conduct. Results are taken to be the results of the conduct attributed to the corporation. 12.2-A Acts or omissions of an employee, agent or officer of a corporation may be physical elements of an offence committed by the corporation: In many instances, the activities of corporate agents will involve the commission of offences both by the corporation and the agent. However, that is not invariably the case. Agents may be immune from criminal responsibility though their actions result in corporate liability. When Chapter 2 speaks of “physical elements of an offence committed by an employee”, it refers to the physical elements of the offence for which it is sought to hold the corporation responsible. So, for example, it is apparent from s12.4 Negligence, that the criminal conduct of a corporation may be an assemblage of particular acts and omissions by diverse agents of the corporation none of whom, individually, engage in the forbidden conduct.365 12.2-B The acts and omissions of an employee, agent or officer of a corporation are attributed to the corporation if they are within the actual or apparent scope of employment or authority: The Code adds little to existing, common law criteria for determining the actual or apparent scope of employment or actual or apparent authority. But 12.3 Fault elements other than negligence, which is primarily concerned with the attribution of fault elements to corporations, suggests that corporate agents include: • persons who are expressly, tacitly or impliedly given permission or authorisation to commit an offence by the board of directors: s12.3(2)(a); • persons who are expressly, tacitly or impliedly given permission or authorisation to commit an offence by a “high managerial agent’ of the corporation: s12.3(2)(b).
Fault elements other than negligence
The statement of general principle which opens Division 12 declares that the “Code applies to corporations in the same way as it applies to individuals.” The principle is immediately qualified by the recognition that the language of individual responsibility will have to be adapted to the contours of corporate criminal responsibility. Section 12.3 provides an explicit set of rules for attributing the fault elements of intention, knowledge and recklessness to corporations. States of mind that provide the basis for a finding of individual fault are given corporate equivalents. The rules include familiar common law principles which impute to the corporation the intentions, knowledge or recklessness of the board of directors or high managerial agents. The rules go well beyond the familiar, however, by permitting fault to be imputed to a corporation which maintains a culture of non-compliance with the law in question or fails to maintain a culture of compliance. The rules for the imputation of fault in s12.3 are limited in their application to intention, knowledge and recklessness. Negligence is the subject of specific provision in s12.4. Negligence aside, s12.3 is far from exhaustive in its coverage of fault elements. Many Commonwealth offences, in the Code and in general legislation, utilise other forms of criminal fault in the regulation of particular areas of criminal activity. So, for example, in 138.1 Unwarranted demand with menaces – the offence commonly known as blackmail – liability depends on proof of the offender’s absence of belief that there were reasonable grounds for either making the demand or reinforcing it with menaces. Absence of the requisite belief is clearly a fault element required for the offence and it is equally clear that this is not a variety of fault which can be equated with intention, knowledge or recklessness. The fact that s12.3 makes no specific provision for unusual fault elements does not mean that absence of belief cannot be attributed to a corporation. The opening injunction of Part 2.5, to modify the language of individual responsibility to fit the contours of corporate liability, should enable a court to conclude that corporations can act with the fault required for the offence of demanding with menaces. If particular varieties of fault can be brought within the rules set out in s12.3, however, there are obvious advantages of clarity and certainty. Dishonesty, which plays so large a role in the regulation of corporate conduct, is the obvious case in point. Analysis of the concept reveals that it is, in reality, a compound of the familiar fault element of knowledge, coupled with a circumstantial element. As a consequence, the rules of attribution in 12.3 do extend to the fault element in dishonesty: this is discussed below 12.3-K. A similar, though more intractable, problem arises in offences which make use of ulterior intentions as a fault element defining liability. In these offences, it is very arguable that 12.3 does not permit the ulterior intention of an agent to be attributed to a corporation. The argument, if accepted, frustrates the objects of s12.3. The issue requires resolution. With this caveat, the discussion which follows assumes that the contrary argument will not prevail and that s12.3 does permit the ulterior intentions of an agent to be attributed to a corporation. The issue is discussed in more detail below at 12.3-J.
Fault elements of intention, knowledge and recklessness are not attributed to a corporation unless an agent acted with intention, knowledge or recklessness
Section 12.3 attributes fault to a corporation if it authorised or permitted the “commission of an offence”. The language of the provision suggests that there must be an offence committed, before fault is attributed.366 If that is the case, it will be necessary to prove intention, knowledge or recklessness – as the case may require – against an agent of the corporation before any of those fault elements can be attributed to the corporation. An alternative view of the provisions is possible. Professor Eric Colvin argues that the fault elements of intention, knowledge or recklessness can be attributed to a corporation in the absence of any evidence that an agent of the corporation acted intentionally, with knowledge or recklessly: “The fault element…can be located in the culture of the corporation even though it is not present in any individual”. 367 On this view, s12.3 goes well beyond the invention of a corporate equivalent for the intention, knowledge or recklessness of an individual agent of the corporation. The corporate culture provisions are taken to require the attribution of these fault elements to a corporation in the absence of fault on the part of any individual. Though it is possible that the provisions were intended to have this effect, the practical difficulties of implementing such an interpretation seem insurmountable. The better view is that intention, knowledge and recklessness cannot be attributed to a corporation unless an agent acted with intention, knowledge or recklessness. Take the simple example of a corporation engaged in the construction industry which fails to ensure that its workers maintain adequate safeguards against injury or death. It fails to maintain a culture of compliance with safety standards. A rigger is killed by a crane driver who breaches those standards. There is no doubt that the corporation could be held guilty of manslaughter in such a case: 12.4 Negligence. But murder? The problem, which Professor Colvin remarks, is the absence of any apparent difference between corporate intention, corporate knowledge, corporate recklessness and corporate negligence. Failure to maintain a “corporate culture that required compliance with the relevant provision” provides a basis for attributing intention, knowledge or recklessness to a corporation. The only way in which one can differentiate between corporate murder and corporate manslaughter is by reference to the question whether the corporate agent – the crane driver – acted with the appropriate fault element for murder. To attribute intention to kill, or recklessness to the corporation, it would be necessary to show a corporate culture of non-compliance or a corporate failure to maintain a culture of compliance, among its agents, with the law against murder. The problems are even more apparent when the fault element of an offence takes the form of ulterior intent: see below 12.3-J.
Fault elements of intention, knowledge and recklessness required for guilt must be attributed to a corporation that authorised or permitted the commission of the offence
The legislative instruction is mandatory. It appears that authorisation and permission are meant to be taken as near synonyms: an offence is “permitted” when permission is given to some individual to commit that offence. The word does not seem to extend more generally to include simple failure to prevent the occurrence of the offence.368 Authorisation of an offence and permission for it to occur are corporate equivalents of the states of mind which provide the basis for attributing the fault elements of intention, knowledge or recklessness to individuals. It is important to notice that the Chapter 2 conception of corporate fault does not distinguish among the fault elements of intention, knowledge and recklessness.369 Authorisation or permission will provide the basis for attributing each and all of these fault elements to the corporation. When corporate fault is in issue, they are treated as a collectivity. It follows that the distinction between crimes requiring proof of intention and crimes requiring proof of recklessness, a distinction which can be used to mark different grades of criminality when individual liability is in issue,370 is elided when corporate liability is in issue. 12.3-C A corporation may authorise or permit the commission of an offence expressly, impliedly or tacitly: The opening statement of general principle in s12.3(1) adds little if anything to existing law. It does provide the foundation for the extended applications of authorisation and permission which follow. 12.3-D Authorisation or permission for the commission of an offence may be given by the board of directors: Section 12.3(6) defines the board of directors as the body, whatever it may be called, which exercises the executive authority of the corporation. Section 12.3 reiterates the common law doctrine of “direct corporate liability” in which the corporation is identified with its board of directors. The board of directors may implicate the corporation in criminal activity if they personally engage in criminal conduct, or if they authorise or give permission to another to do so. It will be necessary, however, to prove that the directors acted with intention, knowledge or recklessness with respect to the physical elements of the offence or authorised its commission intentionally, knowingly or recklessly.372 12.3-E Authorisation or permission for the commission of an offence may be given by a high managerial agent: Common law extends the identification of the corporation with its board of directors to include senior officers of the corporation. Once again, Chapter 2 reiterates common law doctrine, which found its most significant expression in the House of Lords decision in Tesco Supermarkets v Nattrass. 373 A high managerial agent may implicate the corporation in criminal activity if the agent personally engages in criminal conduct or authorises or gives permission to another to do so. It will be necessary, however, to prove that the high managerial agent acted with intention, knowledge or recklessness with respect to the physical elements of the offence or authorised its commission intentionally, knowingly or recklessly.374 The limits of attribution under this head are inherent in the notion of a “high managerial agent”. Chapter 2 summarises common law criteria375 for distinguishing between those senior officers whose states of mind can be counted as those of the corporation and those who do not have a share in the corporate mana. 376 A high managerial agent is defined, in s12.3(6), as an “employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate’s policy”. The importance of those limits is much reduced, however, by the provisions on corporate culture which follow.
The fault of a high managerial agent is not attributed to a corporation which exercised due diligence in an attempt to prevent that agent from engaging in criminal conduct or giving authorisation or permission to another to commit the offence. Chapter 2 draws a significant distinction between the board of directors and high managerial agents. Any criminal activity undertaken by the board is attributed to the corporation. In the case of high managerial agents, however, their derelictions are only presumed to be attributable to the corporation. The presumption can be rebutted. If the fault of a high managerial agent is imputed to a corporation, s12.3(3) permits an affirmative defence of due diligence if appropriate measures were taken to restrain the criminal activities of the high managerial agent: on affirmative defences, see 13.4 Legal burden of proof – defence. 12.3-G Recklessness on the part of the board of directors or a high managerial agent does not establish corporate fault elements of intention or knowledge: Proof of recklessness is not the same as proof of intention or knowledge, whether corporate or individual criminal responsibility is the subject of inquiry. If an offence requires proof of corporate intention or knowledge, s12.3 permits the intention or knowledge of the board, or of a high managerial agent, to be attributed to the corporation. Intention and knowledge are interchangeable – the corporation will be taken to have known a circumstance if the board or agent intended it. But the provision does not permit intention or knowledge to be attributed to a corporation if the board or high managerial agent was merely reckless with respect to a circumstance or result. Though the provisions are not explicit on the point, it can be inferred that similar restrictions apply when the corporate culture provisions are invoked. Some Commonwealth offences are graded in seriousness, requiring intention for the more serious offence and recklessness for the less serious offence.377 If the offence requires intentional wrongdoing, proof that the corporate agent possessed the requisite intention will be necessary before the corporation can be convicted of the more serious offence. There is no other way of distinguishing between corporate intention and corporate recklessness and it cannot be assumed that the difference in seriousness between the two offences counts for nothing, simply because a charge is brought against a corporation rather than an individual. 12.3-H Authorisation or permission for the corporate recklessness and it cannot be assumed that the difference in seriousness between the two offences counts for nothing, simply because a charge is brought against a corporation rather than an individual. 12.3-H Authorisation or permission for the commission of an offence may be inferred from proof of a corporate culture of non-compliance: The corporate culture provisions in ss12.3(2)(c),(d), extend the concept of corporate authorisation and permission well beyond the limits imposed at common law by Tesco Supermarkets v Nattrass.378 The fault of any agent in the corporation, no matter how minor or peripheral their role, can be attributed to the corporation when these provisions apply. In that sense, corporate forms of fault are quite distinct from the states of mind of individuals within the corporation. As Fisse remarks, “Corporate policy is the corporate equivalent of intention and a corporation that conducts itself with an express or implied policy of non-compliance with a criminal prohibition exhibits corporate criminal intentionality.”379 In the Code, authorisation and permission are taken to be the expression of corporate policy. But, negligence aside, Chapter 2 still requires proof of intention, knowledge or recklessness on the part of some human agent if fault is to be attributed to the corporation.380 The concept of corporate culture is defined in ss12.3(6) as “an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place.”381 Of course, policies of non-compliance may be overt in cases where a high managerial agent has authorised past breaches of the law, leading to an expectation that future breaches will be condoned: s12.3(4)(a).382 It is perhaps more likely, however, that the policy will be tacit or implied. Chapter 2 invites courts to consider the reasonably founded views of ordinary employees on the attitudes of management to compliance when drawing conclusions about corporate culture: s12.3(4)(b)383 The prosecution may, in this way, lead evidence that the unwritten rules of the corporation tacitly authorised non-compliance with the law, whatever the formal appearances of compliance. 12.3-I Authorisation or permission for the commission of an offence may be inferred from corporate failure to create and maintain a corporate culture of compliance: The Code treats proof of absence of a culture of compliance and proof of the existence of a culture of non-compliance as equivalent grounds for the conclusion that the corporation gave its authorisation or permission for the offence. The provisions facilitating proof of a culture of non-compliance are equally applicable to proof of failure to establish a culture of compliance: s12.3(4). 12.3-J Section 12.3 permits attribution of ulterior intentions to a corporation: Earlier sections of the Guidelines discuss offences which make use of an ulterior intention as a fault element defining liability: see 5.2-D. The Code offence, 70.2 Bribing a foreign official, is an example of an offence defined by reference to an ulterior intention. A benefit given to a foreign official can amount to a bribe, if the benefit was given “with the intention of influencing the…official” in order to secure a business advantage. Since the offence requires proof of a fault element of intention, s12.3 permits the corporate agent’s intention to influence an official to be imputed to their corporate principal. It is true the agent’s ulterior intention does not fall within s5.2 Intention. But the definition in that provision does not exhaust the meaning or application of intention as a fault element. References to “intention” in s12.3(1) accordingly include ulterior intentions. Though the Dictionary which concludes the Code declares that “intention has the meaning given in section 5.2”, definitions in the Dictionary give way when “context or subject matter…indicates or requires”. 383 The s5.2 definition is displaced in this instance: there can be no reason to exempt corporations from liability for offences which require proof of an ulterior intention. Many, like the offences in the foreign bribery provisions, are peculiarly appropriate for use against errant corporations. 12.3-K Dishonesty is attributed to a corporation, pursuant to s12.3, if the corporation gives authorisation or permission for an offence of dishonesty: No mention in made of dishonesty in s12.3, which is exhaustive in its catalogue of the fault elements which may be attributed to a corporation, but s12.3 is not the only avenue to the attribution of fault to a corporation. The fundamental principle governing corporate liability is found in s12.1, which requires Code provisions to be applied (with whatever modifications may be necessary, to corporations in the same way as they apply to individuals). It is possible that dishonesty might be attributed to a corporation without reference to the provisions of s12.3. However, in view of the large number of offences of dishonesty that involve corporate misconduct, it is preferable to avoid sailing into totally uncharted waters. Closer consideration of the meaning of dishonesty, as it is defined in the Code, permits the conclusion that s12.3 does indeed provide the basis for attributing dishonesty to a corporation. That conclusion, it should be said, is based on the definition of dishonesty in Chapter 7 – The proper administration of government, which deals with theft, fraud and related areas of criminal behaviour. It may not follow in the same way, if dishonesty is defined differently or not defined at all in other offences which do not fall within Chapter 7. Section 130.3 Dishonesty defines the concept as an amalgam of two distinct elements. First, the conduct in question must be “dishonest according to the standards of ordinary people.” Second, the conduct must be “known to be dishonest according to the standards of ordinary people”. It is apparent that the fault element here is “knowledge”. The “standards of ordinary people” are, in fact, a physical element of those offences that require proof of dishonesty: see 220.127.116.115 Nothing in the Code requires “dishonesty” to be characterised as a fault element and nothing in the Code forbids dissection of this compound concept into its component elements. The fault element in these offences is knowledge. Like knowledge of any other physical element of an offence, s12.3(2) provides the criteria for attributing an individual’s knowledge that conduct violated the standards of ordinary people to a corporation. The hypotheticals which follow illustrate the attribution of the fault element in dishonesty to a corporate employer.
There is a strong distinction between proof of corporate negligence and the other forms of corporate fault in Part 2.5. Intention, knowledge and recklessness each require proof that a particular employee, agent or officer of the corporation realised the nature of the conduct in which they were engaged and the risk that circumstantial and consequential elements of the offence existed or would eventuate. Negligence, which is a marked or gross failure to meet required levels of care, does not require proof that risks were known or contemplated by either the agent or the corporation. Instead, the prosecution must prove departure from the standard of care which would be exercised by a reasonable person in the circumstances: 5.5 Negligence. Unlike s12.3, which bases the attribution of corporate fault on a finding of individual fault, s12.4 permits a finding of negligence against a corporation in circumstances where none of its agents were guilty of negligence. 12.4-A The criteria for a finding of corporate negligence are the same as the criteria for negligence by an individual: Negligence requires proof of a “great falling short of the standard of care that a reasonable person would exercise,” coupled with a “high risk” of incriminating circumstances or consequences: 5.5 Negligence. The departure from reasonable standards must be sufficiently marked and the risk sufficiently high to justify the imposition of criminal punishment. It is implicit in the provisions that the standard against which the defendant corporation is to be judged is the standard expected of a reasonable corporate actor.387 The liability of the corporation for failure to take care is not constrained by the possibly limited capacities of its agents. 12.4-B The conduct of employees, agents and officers may be considered in the aggregate, when corporate negligence is in issue: Chapter 2 is quite explicit in its recognition of the principles of organisational or collective blameworthiness. Corporate negligence may arise from an aggregation of particular failures of foresight and precaution none of which, taken singly, would justify the imposition of criminal punishment: “Where fault is pervasive throughout an organization, and where the contribution of any one individual to the disaster is but a small part of a complex whole, the temperate course is to rely on corporate liability rather than prosecute a few scapegoats.”38
Evidence of inadequate corporate management and failure to provide adequate information systems are evidence of corporate negligence
The criteria for corporate negligence in s12.4(3) are the same as those defining absence of due diligence in 12.5 Mistake of fact (strict liability). It should not be assumed, however, that negligence and “failure to exercise due diligence” are the same thing when corporate liability is in issue. Section 12.4(3) is an evidentiary provision. Though it suggests some criteria for corporate negligence, it is not exhaustive. There are other ways in which corporate negligence can be established. And, though the criteria for corporate negligence overlap with failures of due diligence, the standard of care required of the corporation is different. Negligence, unlike failure to match the due diligence standard, requires a great falling short of a reasonable standard, in circumstances of high risk: 5.5 Negligence.
12.5 Mistake of fact (strict liability) Chapter 2 requires specific provision before strict liability is imposed. A declaration that liability is strict with respect to an offence or a particular physical element of an offence, displaces the prosecution obligation to prove fault with respect to some or all physical elements of the offence: 6.1 Strict liability. Though the prosecution has no need to prove fault when strict liability is imposed, s9.2 Mistake of fact (strict liability) permits the accused to rely on the defence of reasonable mistake of fact. Adaptation of the defence is necessary if a corporation is to rely on reasonable mistake. Though s12.5 permits a corporation to share, vicariously, in the potential benefits of a mistake made by an employee, agent or officer, it places significant limits on that reliance. The defence of reasonable mistake, which must be disproved by the prosecution when individual criminal responsibility is in issue, is transformed into an affirmative defence that the corporation must prove on the balance of probabilities. The fact that a corporate agent made a reasonable mistake is not sufficient to exculpate the corporation. The corporation must take the further step of proving that it exercised due diligence in the supervision of the agent. The due diligence limit is an expression, in yet another guise, of the pervasive principle of organisational blameworthiness. 12.5-A Reasonable mistakes of fact by corporate employees, agents or officers can be attributed to the corporation: When strict liability is imposed with respect to the physical elements of an offence, the defence of reasonable mistake is not available to a person who is merely ignorant, no matter how reasonable their ignorance may be. Since mistaken belief is required, corporate reliance on the defence is necessarily vicarious, requiring evidence that some particular agent held a belief in facts which would have made the conduct in question innocent. Of course, the defence is barred if the belief is both mistaken and unreasonable. The requirement that the belief be “reasonable” appears to refer to a belief that would be reasonable for the individual in question to hold in the circumstances. But reasonableness from the agent’s point of view is not determinative. The defence fails if the agent’s mistake resulted from a lack of due diligence on the part of the corporation, however reasonable it may have been for someone in the agent’s circumstances. 12.5-B The defence of reasonable mistake is not available to a corporation unless the agent who made the mistake engaged in the conduct which constitutes the offence: It is quite possible to envisage circumstances in which breach of a prohibition occurs as a consequence of conduct by a number of corporate agents. That may often be the case, for example, in violations of provisions which impose strict liability for environmental pollution. The fact that one of more corporate agents may have laboured under a reasonable mistake of fact will not provide the corporation with a defence of reasonable mistake of fact if others, whose conduct constituted the offence, were merely ignorant.389 12.5-C A corporate defence of reasonable mistake of fact requires proof of due diligence: The reasonable mistakes of corporate agents may be a consequence of corporate mismanagement, failures in training or failure to disseminate information for their guidance. The corporation is required to maintain a standard of due diligence in management and information policy. Since s12.5(1)(b) requires the corporation to “prove” due diligence, it bears the legal burden of proof of due diligence: 13.4 Legal burden of proof – defence. Considered as a corporate defence reasonable mistake of fact is, at least in part, an affirmative defence.
12.6 Intervening conduct or event When strict or absolute liability is imposed for one of more physical elements of an offence, the prosecution is not required to prove fault with respect to those elements. When liability is absolute, the defence of reasonable mistake of fact is barred. Absolute and strict liability can be imposed only by specific provision: s6.1 Strict liability; s6.2 Absolute liability. However, the general defences are still available. There is, in addition, the defence of intervening conduct or event, which is limited in its application to offences of strict or absolute liability: s10.1 Intervening conduct or event. The defence supplements the plea of involuntary behaviour: 4.2 Voluntariness. A person who commits an offence which imposes strict or absolute liability is excused if those elements of the offence for which strict or absolute liability is imposed came about as a consequence of events or the actions of others which were beyond the control of the defendant. The defence is limited to circumstances in which the defendant could not reasonably be expected to guard against the commission of the offence. The defence is adapted to corporate criminal responsibility by imposing a further limitation: a corporation has no defence of intervening conduct when the unexpected and uncontrollable conduct in question is that of an employee, agent or officer of the corporation. 12.6.A A corporation cannot rely on the Code defence of intervening conduct if the conduct is that of a employee, agent or officer of the corporation: The conduct of employees, agents and officers will be attributed to the corporation if it is within the actual or apparent scope of employment or authority: 12.2 Physical elements. It makes no difference that the conduct may have been disobedient to instructions, unpredictable and unavoidable by the exercise of due diligence. In offences which require proof of fault, allegations of liability for the unpredictable and uncontrollable conduct of mavericks will be defeated, in most cases, by prosecution failure to prove corporate fault. However, when liability is strict or absolute, corporate criminal responsibility can be incurred for the unpredictable criminal activities of corporate agents. 12.6-B The defence of intervening conduct or event will fail if the corporation could have taken reasonable precautions to avoid liability: The defence is not available if the defendant could “reasonably be expected to guard against” the occurrence of elements for which strict or absolute liability is imposed: s10.1(b). In cases where a corporation seeks to rely on the defence, it is likely that this qualification will operate similarly to the “due diligence” limit on the corporate defence of reasonable mistake of fact. Unlike that defence, however, no provision is made to require a corporation to prove reasonable precautions as a prerequisite to reliance on the defence. The prosecution must prove, beyond reasonable doubt, that it would have been unreasonable to expect the corporation to guard against the intervening conduct or event.
PROOF OF CRIMINAL RESPONSIBILITY DIVISION
13 Section 3.2 of Chapter 2 opens with the statement that conviction of an offence requires proof of both physical elements and fault elements, if fault is required for guilt. This restates, in statutory form, the fundamental principle declared by Lord Sankey in Woolmington v Director of Public Prosecutions, 390 that the obligation cast on the prosecution to prove guilt is “the golden thread always to be seen throughout the web of the English criminal law.” Part 2.6 – Proof of Criminal Responsibility, articulates the rules which give content to that general principle. In the absence of specific provision to the contrary, the prosecution must persuade the jury or judicial fact finder beyond reasonable doubt of the existence of each element of the offence charged. The obligation to persuade the fact finder is conventionally described as the “legal burden” of proof: s13.1(3). It is apparent that the prosecution also bears the burden of adducing evidence of the existence of each element of the offence, though that requirement is left unstated and arises by necessary implication. Failure to adduce evidence which would justify conviction results in a ruling that the defendant has no case to answer.391 The allocation of the burdens of proof is different when defences to criminal liability are in issue; the legal and evidential burdens are usually divided between the prosecution and the defence. One who relies on a defence to criminal liability does not deny an element of the offence.392 Defences only come into contention when the prosecution can prove the elements of the offence. A defendant who wishes to rely on a defence must raise the issue in the first place by adducing or pointing393 to evidence in support of the defence. If there is evidence for the defence, the prosecution must take up the legal burden and persuade the jury or judicial fact finder beyond reasonable doubt that the defence is unfounded in law or fact. Imposition of the evidential burden on the defendant is not restricted to the recognised defences. The defendant is also required to bear the burden of adducing evidence of any “exception, exemption, excuse, qualification or justification” which would reduce or avoid liability for the offence: s13.3(3).
Legal burden of proof – prosecution
The legal burden of proof which rests on the prosecution requires proof beyond reasonable doubt of each element of the offence and disproof beyond reasonable doubt of any defence, exception, exemption, excuse, justification, or qualification. The principle is, of course, presumptive. The legislature can, by specific provision, shift the legal burden to the defendant: s13.4 Legal burden of proof – defence. 13.1-A The prosecution bears the legal burden of proving every element of an offence: The provision implies that the prosecution bears the evidential as well as the legal burden of proof of the elements of the offence charged. Elements are distinguished from defences, exceptions, exemptions, excuses, qualifications and justifications on which a defendant may rely to avoid criminal responsibility. A defendant who seeks to rely on a defence or exception bears the evidential burden. 13.1-B The prosecution bears the legal burden of disproving any matter on which the defendant has discharged an evidential burden of proof: Section 13.1(2) refers implicitly to the provisions of s13.3 Evidential burden of proof – defence. These provisions require the defendant to bear the evidential burden in relation to defences, exceptions, exemptions, excuses, qualifications and justifications [hereafter “defences or exceptions”]. Once the evidential burden is discharged, however, the prosecution must prove beyond reasonable doubt that the accused is not entitled to the defence or exception. So far as defences are concerned, Chapter 2 merely restates common law. But Chapter 2 has taken a significant step beyond the common law in relieving the accused of the legal burden of establishing the existence of “exceptions, exemptions and qualifications”. In He Kaw Teh394 the High Court overturned caselaw which held that the accused must prove a defence of reasonable mistake on the balance of probabilities. It left intact, however, a common law exception to the Woolmington principle which permitted courts to impose both evidential and legal burdens on the accused when an exception, exemption or qualification was in issue.395 The Code curtails the power of courts to fashion exceptions to Woolmington in this way. A legislature may, of course, decide to impose the legal burden on an accused and require proof, on the balance of probabilities, of a defence or exception. To achieve that effect, however, the legislation must be specific in terminology and intention: see s13.3(1). 13.2 Standard of proof – prosecution The standard of proof required of the prosecution, both when elements of an offence must be established and when the prosecution bears the burden of disproving defences or exceptions to liability, is proof beyond reasonable doubt. That demanding standard should neither be explained nor defined when instructions are given to a jury396 though paraphrase is permissible.397 13.3 Evidential burden of proof – defence The defendant must adduce or point to evidence in support of a defence or a matter of exception, exemption, excuse, qualification or justification. Failure to do so justifies an instruction to the jury to disregard the possible existence of the defence or exception or, in trial without jury, a conclusion that the defence or exception need not be considered. 13.3-A Express provision is necessary before the defendant is required to bear the legal burden of proof: Section 13.3 opens with a declaration that the “burden of proof that a law imposes on a defendant is an evidential burden only”, unless s13.4 Legal burden of proof, applies. That section sets out three statutory formulae by means of which the legal burden may be imposed on the defendant. The opening provision in s13.3(1) adds a measure of reinforcement to the requirement that a reversal of the legal burden requires express language. 13.3-B The evidential burden on the defendant may be discharged by evidence adduced by the accused, the prosecution or the court: Section 13.3(4) restates common law in its declaration that the evidence which supports a defence or exception may derive from the prosecution case or as a consequence of intervention by the court. For example, evidence adduced by the prosecution to support a charge of causing serious harm to another may suggest the “reasonable possibility” [s13.3(6)] that the harm was done in self defence.
3.3-C When one of the defences in Part 2.3 is in issue, the defendant will usually bear the evidential burden: Section 13.3(2) makes an exception for the s7.3 defence of mental impairment in its statement of general principle. The reason for the exception is that mental impairment, alone among the defences in Part 2.3 – Circumstances in which there is no criminal responsibility, may be alleged by either the prosecution or defendant. If the prosecution proposes a special verdict of not guilty on grounds of mental impairment, as an alternative to conviction, the prosecution bears both the evidential and persuasive burdens of proving absence of criminal responsibility on this ground. If the accused seeks a special verdict, the accused bears both burdens. There is a second, implied, exception to the general rule. In earlier sections of the commentary, it was suggested that s9.1 Mistake or ignorance of fact (fault elements other than negligence) is not in fact a defence at all. The provision, which was included in Chapter 2 from an abundance of caution, merely declares that the fault elements of intention, knowledge and recklessness may be defeated by evidence that the accused was unreasonably mistaken or ignorant in some pertinent respect. Since the prosecution bears the legal and evidential burden of proving fault elements [s13.1 Legal burden of proof – prosecution] the defendant does not bear an evidential burden when mistake or ignorance are in issue. The rule in s13.2(2) is subject to a similar exception in some circumstances when s9.5 Claim of right is in issue. When claim of right amounts to no more than denial of the fault element required for an offence of dishonesty the prosecution, not the defendant, bears the evidentiary burden of proving fault. 13.3-D A defendant who seeks to rely on an “exception, exemption, excuse, qualification or justification” bears an evidential burden in relation to that matter: Section 13.3(3) parallels the rule that the defendant bears the evidentiary burden when Chapter 2 defences in Part 2.3 Circumstances in which there is no criminal responsibility are in issue. The references to “excuse” and “justification” can be taken to apply to specialised defences found in particular chapters of the Code. For example, the defendant is required to bear the evidential burden when relying on “reasonable excuse”, a defence frequently employed in federal legislation.398 In general, excuses and justifications are readily recognisable. That cannot be said of exceptions, exemptions and qualifications. Though the distinction drawn in the Code between “elements” and matters of defence or exception parallels a familiar common law distinction,399 the criteria which govern its application are not apparent in Chapter 2 itself. In practice, a measure of certainty has been achieved by adopting standardised drafting techniques in framing offences, which distinguish between elements and matters of defence or exception. 13.3-E The distinction between elements and exceptions, exemptions and qualifications is determined by “the law creating the offence”: The ambiguity inherent in references to “elements of an offence” was the subject of discussion earlier in this commentary: see 3.1 Elements. It is quite clear that reliance on one of the “defences” in Part 2.3 – Circumstances in which there is no criminal responsibility does not involve any denial of the “elements of the offence.” It is equally clear that defences elsewhere in the Code or federal statutes do not involve any denial of the elements of the offence. The status of “exceptions, exemptions, excuses, qualifications and justifications”, to which Chapter 2 refers, is far less certain.400 When criminal liability is imposed for breach of a statutory obligation, it is often possible to conclude that a statutory exception to liability defines the content of the obligation and, hence, defines the physical elements of the offence. Absence of an exception may, in this way, be characterised as an element of the offence. For example, legislation which prohibited television advertisements for cigarettes made an exception for accidental or merely incidental appearances of material advertising cigarettes. In DPP v United Telecasters, 401 the High Court held that this was a “qualification, exception or proviso” which defined or formed a “part of the total statement of the obligation”. The prosecution was therefore required to bear both the evidential and legal burdens of proving that the exception did not apply.402 If one puts this in the language of the Code, the physical elements of the offence of advertising would be taken to include absence of accidental or merely incidental transmission. At common law, the distinction between exceptions which relate to an element of the offence and exceptions which do not requires an interpretive characterisation of the provision. Though the Code provisions provide no more guidance than the common law on the characterisation issue, the area of dispute has been reduced: • Unlike common law, the Chapter 2 requires specific provision before the legal burden of proof relating to an exception is shifted from the prosecution to the defendant; • In practice, Commonwealth legislative drafting conventions will often provide a reliable indication of the occasions when “the law creating the offence” shifts the evidential burden relating to an exception from the prosecution to the defendant: see discussion box. It is apparent, however, that adherence to the conventions to signal the existence of a matter of exception is not invariable
13.3-F The evidential burden is discharged if a defendant can adduce or point to evidence suggesting a reasonable possibility of the existence of a defence, exception, exemption, excuse, qualification or justification: Section 13.3(4), coupled with the definition of “evidential” burden in ss(6) sets a standard of “reasonable possibility” for the defendant when matters of defence or exception are in issue. This proposition is complementary to the definition of the legal burden which rests on the prosecution to disprove a defence or exception: s13.1(2). If there is evidence suggesting a reasonable possibility of a defence or exception, the prosecution must prove beyond reasonable doubt that the defence or exception has no application. It is uncertain whether the same standard of reasonable possibility is meant to apply when it is the prosecution which bears the evidential burden.405 13.3-G The question whether an evidential burden has been discharged is one of law: Section 13.3(5) restates common law. There are two issues for the trial court. The first is whether the evidence can provides a sufficient legal foundation for the defence. The second is whether there is a reasonable possibility that the factual foundation for the defence is true. So, for example, s9.2 Mistake of fact (strict liability) has no legal basis unless there is evidence of a mistake: ignorance, however reasonable, is not enough and the defence will be withheld from the jury. Even if there is evidence of a mistake a court might rule that any jury would be certain to conclude that the mistake was utterly unreasonable. In that event the defence is once again withheld from the jury
3.3-F The evidential burden is discharged if a defendant can adduce or point to evidence suggesting a reasonable possibility of the existence of a defence, exception, exemption, excuse, qualification or justification: Section 13.3(4), coupled with the definition of “evidential” burden in ss(6) sets a standard of “reasonable possibility” for the defendant when matters of defence or exception are in issue. This proposition is complementary to the definition of the legal burden which rests on the prosecution to disprove a defence or exception: s13.1(2). If there is evidence suggesting a reasonable possibility of a defence or exception, the prosecution must prove beyond reasonable doubt that the defence or exception has no application. It is uncertain whether the same standard of reasonable possibility is meant to apply when it is the prosecution which bears the evidential burden.405 13.3-G The question whether an evidential burden has been discharged is one of law: Section 13.3(5) restates common law. There are two issues for the trial court. The first is whether the evidence can provides a sufficient legal foundation for the defence. The second is whether there is a reasonable possibility that the factual foundation for the defence is true. So, for example, s9.2 Mistake of fact (strict liability) has no legal basis unless there is evidence of a mistake: ignorance, however reasonable, is not enough and the defence will be withheld from the jury. Even if there is evidence of a mistake a court might rule that any jury would be certain to conclude that the mistake was utterly unreasonable. In that event the defence is once again withheld from the jury
13.4 Legal burden of proof – defence Exceptions to the Woolmington principle that the prosecution must prove guilt beyond reasonable doubt are comparatively rare in Commonwealth law. The Code has, indeed, strengthened the presumption of innocence in s13.4 and extended its operation by requiring the prosecution to disprove exceptions, exemptions and qualifications: s13.3 Evidential burden of proof – defence. 13.4-A Express and specific legislative provision is necessary before a legal burden of proof is imposed on the accused in relation to a defence or exception to liability: The Code requires an express declaration in legislation creating an offence before the legal burden is shifted from the prosecution. A legislative provision that the defendant bears “the burden of proof ” of a matter is not sufficient to shift the legal burden; it will be taken to mean the defendant bears the evidential burden: ss13.3(1); 13.4. 13.5 Standard of proof – defence If the defendant bears the legal burden of proof in relation to a matter, it is discharged if the trier of fact is satisfied on the balance of probabilities of the existence of the defence or exception.
Use of averments
Averment provisions permit an allegation of fact or of mixed fact and law to discharge the prosecutor’s evidential burden. They do not impose either an evidential or legal burden on the defendant and averment by the prosecution, where it is permitted, is merely prima facie evidence of the matters alleged.406 Averment provisions are comparatively rare in Commonwealth law. Section 255 of the Customs Act 1901 (Cth) is a typical, if elaborate, example. It provides that an averment of fact or of mixed fact and law is prima facie evidence of the fact averred. The section states that an averment in a Customs Act prosecution does not alter the burden of proof and has no bearing on the credibility or probative value of evidence given in support or rebuttal of the allegation in the averment. Chapter 2 imposes two limits on the use of averments: (a) Fault elements must not be averred; and (b) Averments must not be used in prosecuting an offence that carries a sentence of imprisonment.
The provisions in Part 2.7 commenced on 24 May 2001 and differ from the rest of Chapter 2 of the Code in that they do not concern responsibility for offences. Part 2.7 should be a substantial improvement over the previous position under section 3A of the Crimes Act 1914. The position in relation to the geographical reach of all new offences will be much more precise. This is particularly appropriate for Commonwealth offences, many of which are focused on activities which occur either partly or wholly outside Australia. Part 2.7 provides a range of jurisdictional options.407 From May 24 2001 new offences will fall within one or other of the available options. Provision can also be made to subject offences enacted before that date to the jurisdictional provisions of Part 2.7.408 If the offence only requires a narrow territorial based geographical jurisdiction, then section 14.1 will automatically apply without reference to the issue. However, if it is desired that the offence should reach outside Australia sections 15.1 to 15.4 provide for a selection of options for extended geographical jurisdiction ranging from covering Australian citizens for what they do anywhere in the world (category A); to citizens and residents for what they do anywhere in the world (category B); and finally to anyone anywhere regardless of citizenship or residence (category C) -except where it is not unlawful in the other place – and category D – regardless of whether it is lawful elsewhere). The purpose of Part 2.7 is to clarify, and to provide in an orderly way for, the geographical application of Commonwealth offences. There are several instances where the geographical reach of Commonwealth offences is not clear, or where general application provisions are not adapted to the purpose of particular offence provisions. Commonwealth offence provisions are usually enacted to give effect to a specific governmental purpose. Depending on that purpose, and considerations of international law, practice and comity, it might be appropriate for an offence to have a broad or narrow application.
Standard geographical jurisdiction
Section 14.1 enables standard geographical jurisdiction to be applied to a particular offence by an express provision to that effect. However, express application will not be necessary for offence provisions commencing at or after the commencement of section 14.1, where standard geographical jurisdiction will apply unless contrary provision is made. The same form of jurisdiction will also govern the related ancillary offences which include 11.1 Attempt, 11.4 Incitement, 11.5 Conspiracy and liability as an accomplice or for acts of an innocent agent. The situations where a particular case falls within standard geographical jurisdiction are detailed in ss14.1(2). This is done by reference to ‘conduct’ and ‘result’. These expressions are used in conformity with their meaning as physical elements of the offence in question: 4.1 Physical elements. In particular, reference to a “result” in Part 2.7 does not refer to consequences or collateral effects of the defendant’s conduct, unless they are elements of the offence: 16.4 Result of conduct. Standard geographical jurisdiction will be satisfied if the conduct constituting the alleged offence occurs wholly or partly in “Australia” (defined in section 16.3 Meaning of Australia) or wholly or partly on board an “Australian aircraft” or an “Australian ship” (see the definitions in the Dictionary). The jurisdictional requirements will also be satisfied if a result of the conduct occurs wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship. As noted, this condition of jurisdiction can only be satisfied where a ‘result’ is an element of the offence. Only a few Commonwealth offences have a ‘result’ in that sense, so the ‘result’ basis for jurisdiction will only be applicable to those offences. An example might be: (a) an offence of destroying an aircraft where the conduct which caused the destruction occurs outside Australia but the actual destruction of the aircraft (say a foreign aircraft) occurs in Australia, or (b) an offence of obtaining something by deception where the deceptive conduct occurs outside Australia but the thing is obtained in Australia. In the case of an ‘ancillary offence’, such as attempt, incitement or conspiracy, it may be that the conduct occurs wholly outside Australia and there is no relevant ‘result’ in Australia of the ancillary offence itself. In that case, by virtue of proposed paragraph 14.1(2)(c), the jurisdictional requirement might still be satisfied by reference to the primary offence, for example where a defendant incites a person, in a foreign country, to commit an offence and the person commits that offence (the primary offence) in Australia or the defendant intends that the primary offence be committed in Australia.
Provision is made in ss14.1(3) for a defence where standard geographical jurisdiction is satisfied but the conduct occurs wholly in a foreign country, for example where only a ‘result’ occurs in Australia or (in the case of an ancillary offence) the primary offence is intended to occur in Australia. The defence will apply if there was no offence in the country where the conduct occurred corresponding to the Commonwealth offence charged. The inquiry is not into whether the particular conduct alleged would have amounted to an offence of some kind or other under the law of the other country. Therefore it need not be relevant that in the other country there is an applicable defence, relating, for example, to age, nationality or other capacity. The inquiry is into whether the other country has under its law a corresponding offence. ‘Corresponding’ does not mean ‘exactly the same’ but means ‘of a corresponding kind’. For example, if the charged offence was bribing an Australian official, a corresponding offence of the other country could be bribing an official of that country. If the charged offence was destruction of (or theft of) Australian government property and the other country had not legislated specifically for government property, a corresponding offence could be simple destruction of (or theft of) property. The same principles apply to ancillary offences (ss14.1(5) and (6)).
EXTENDED GEOGRAPHICAL JURISDICTION
This includes the categories A, B, C and D. A being the most limited extension, D being the broadest. 15.1 Extended geographical jurisdiction – category A Where this category of jurisdiction applies, jurisdiction will be satisfied if a requirement for ‘standard geographical jurisdiction’ is met or the alternative requirement in s15.1(c) is met. That alternative requirement is met if at the time of the alleged offence the person charged with the offence was an Australian citizen or was a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory (‘a national’). As in ss14.1, there is a defence in proposed ss15.1(2) which may be available depending on the law of a foreign country where the conduct has wholly occurred. However, that defence is not available if jurisdiction is to be exercised under ss15.1(c) on the basis of the person’s nationality
Extended geographical jurisdiction – category B
This category of jurisdiction is the same as under category A, except that a further possible basis for jurisdiction is added in ss15.2(1)(c)(ii). This is that at the time of the alleged offence the person was a resident of Australia. The defence in ss15.2(2) is in the same terms as the defence in ss15.1(2). It may be available if jurisdiction is to be exercised on the basis of residence, but not if jurisdiction is to be exercised on the basis of nationality. 15.3 Extended geographical jurisdiction – category C Category C jurisdiction is unrestricted. It applies whether or not the conduct or the result of the conduct constituting the alleged offence occurs in Australia. However, by virtue of ss15.3(2) a defence may be available depending on the law of a foreign country where the conduct occurs. The defence is in the same terms as in ss15.1(2) and 15.2(2) and is not available if the person charged is of Australian nationality
Extended geographical jurisdiction – category D
Category D jurisdiction is unrestricted and is in the same terms as in ss15.3, except that there is no foreign law defence corresponding to that in ss15.3(2). DIVISION 16—MISCELLANEOUS 16.1 Attorney-General’s consent The purpose of section 16.1 is to require the Attorney-General’s consent where a prosecution is to be brought in reliance on Part 2.7 and the conduct constituting the alleged offence occurs wholly in a foreign country and the person charged or to be charged is not of Australian nationality or, if a body corporate, the body corporate is not incorporated under a law of the Commonwealth, or of a State or Territory. In such cases it may not be appropriate for a prosecution to proceed in Australia even if the usual criteria for a prosecution are met. It is intended that the Attorney-General will have regard to considerations of international law, practice and comity, international relations, prosecution action that is being or might be taken in another country, and other public interest considerations and decide in his or her discretion whether it is appropriate that a prosecution should proceed. There is also a standard provision enabling a prosecution to be initiated before consent is given (ss16.1(2)). If another Commonwealth law requires consent to the institution of a prosecution, it will be necessary for consents to be obtained under both provisions.
When conduct taken to occur partly in Australia
This provision is directed to the situation where a thing is sent to or from Australia. If a person, while outside Australia, sends a thing to Australia (for example by mailing a parcel) or causes it to be sent (for example by arranging for another person to mail a parcel), that action of the person might be conduct constituting an offence, and by virtue of subsection 16.2(1) it is conduct that is taken to have occurred partly in Australia. On that basis, an alleged offence could be within the jurisdiction provided by sections 14.1(1), 15.1(1), or 15.2(1). (It would not matter if the sending of a thing from Australia would otherwise be conduct wholly within Australia, because those subsections do not distinguish between conduct occuring wholly or partly in Australia.) Moreover, such conduct would not be conduct ‘wholly outside Australia’ or ‘wholly in a foreign country’ within the meaning of those expressions in Part 2.7, for example for the purposes of the defences in ss 14.1(3), 15.1(2), 15.2(2) or 15.3(2). Ss16.2(3) has a corresponding effect to ss16.2(2) where what is sent or caused to be sent is an electronic communication. An ‘electronic communication’ is defined in the Dictionary. However, an electronic communication is only within the subsection if it is sent or caused to be sent ‘from a point outside Australia to a point in Australia’ or ‘from a point in Australia to a point outside Australia’. That limitation could exclude some broadcast transmissions, although an email to multiple recipients, for example, would be a number of communications sent to a number of points. Ss16.2(3) gives an inclusive definition of ‘point’. 16.3 Meaning of ‘Australia’ The purpose of this section is to bring the operation of the jurisdiction provisions in this Part into line with the scope of particular offence provisions. ‘Australia’ when used in a geographical sense may be given different meanings in different statutes. For example, sometimes it will include some or all of the external Territories, sometimes it will not. For the purpose of this Part, the meaning of ‘Australia’ will depend on the meaning it would have if used in the relevant offence provision.
Result of conduct
This section makes it clear that, in this Part, a reference to a result of conduct is a reference to a result in the sense of a physical element of an offence as provided in ss4.1(1): 4.1 Physical elements. Therefore ‘result’ is not to be interpreted as meaning a consequence or effect following from or caused by an offence but not forming an element of the offence. The destruction of an aircraft is a result and an element of the offence of destroying an aircraft. However, a consequence of that offence in the form of collateral damage to other property or a loss to an insurance company would not be an element of the offence and hence could not provide a basis for geographical jurisdiction.