What are the Mental Elements for Criminal Code Act Offences?

by Ugur Nedim

There are hundreds of Commonwealth Acts which contain criminal offences, perhaps the most notable of which is the Criminal Code Act 1995 (‘the Act’) – the stated purpose of which is ‘to codify the general principles of criminal responsibility under laws of the Commonwealth’.

The Act contains hundreds of criminal offences, many of which are similar or identical to those embodied in state and territory Acts – such as drug possession and supply, sexual offences, assault offences, robbery and obtaining financial advantage by deception (fraud) – and others that are exclusively the domain of the Commonwealth such as drug importation, war crimes, crimes against humanity and the unlawful use of postal services and carriage services such as phones and the internet.

Fault elements

Whether they are enacted by a state, territory or the Commonwealth, most criminal offences require proof beyond a reasonable doubt of a ‘fault element’ – also known as a mental element – such as intent, knowledge, recklessness or negligence, before they can be established.

Exceptions to this include strict and absolute liability offences, which do not require the prosecution to prove a fault element.

The Criminal Code Act 1995

Section 5 of the Act conveniently sets out the meaning of fault elements that form part of many criminal offences.

These are defined as follows:

5.2   Intention

             (1)  A person has intention with respect to conduct if he or she means to engage in that conduct.

             (2)  A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

             (3)  A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

5.3   Knowledge

                   A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

5.4   Recklessness

             (1)  A person is reckless with respect to a circumstance if:

                     (a)  he or she is aware of a substantial risk that the circumstance exists or will exist; and

                     (b)  having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

             (2)  A person is reckless with respect to a result if:

                     (a)  he or she is aware of a substantial risk that the result will occur; and

                     (b)  having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

             (3)  The question whether taking a risk is unjustifiable is one of fact.

             (4)  If recklessness is  a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

5.5   Negligence

                   A person is negligent with respect to a physical element of an offence if his or her conduct involves:

                     (a)  such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

                     (b)  such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment for the offence.

5.6   Offences that do not specify fault elements

             (1)  If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

             (2)  If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Note:          Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.

What about strict and absolute liability offences?

In relation to offences that do not contain a fault element, section 6 provides as follows:

6.1   Strict liability

             (1)  If a law that creates an offence provides that the offence is an offence of strict liability:

                     (a)  there are no fault elements for any of the physical elements of the offence; and

                     (b)  the defence of mistake of fact is available.

6.2   Absolute liability

             (1)  If a law that creates an offence provides that the offence is an offence of absolute liability:

                     (a)  there are no fault elements for any of the physical elements of the offence; and

                     (b)  the defence of mistake of fact is unavailable.

What is the defence of mistake of fact?

The defence of honest and reasonable mistake of fact – which is available for strict liability offences – is contained in section 9.2 of the Act, which provides that:

 (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.

Going to court for a Commonwealth offence?

If you have been charged with an offence under a Commonwealth law such as the Criminal Code Act, call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first conference with a lawyer who is vastly experienced in defending clients in this complex area.

Our lawyers will be able to accurately advise you about the nature of the charges against you, what the prosecution is required to prove, any defences available to you and the best way forward, and apply their specialist expertise to ensure you receive the optimal outcome in the circumstances.

Author

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience in criminal defence. He is the Principal of Sydney Criminal Lawyers®.

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