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‘Fault Elements’ for Criminal Code Act 1995 Offences

‘Fault Elements’ for Criminal Code Act 1995 Offences are defined in division 5 of the criminal code act 1995 (Cth) which explains that:

The definitions of intention, knowledge, recklessness and negligence for offences under the Act are as follows:

  1. Intention
  • A person has intention with respect to conduct if he or she means to engage in that conduct
  • A person has intention with respect to a circumstance if he or she believes that it exists or will exist
  • 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.
  1. 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.

  1. Recklessness

A person is reckless with respect to a circumstance if:

  • he or she is aware of a substantial risk that the circumstance exists or will exist, and
  • having regard to the circumstances known to him or her it is unjustifiable to take the risk.

A person is reckless with respect to a result if:

  • he or she is aware of a substantial risk that the result will occur, and
  • having regard to the circumstances known to him or her it is unjustifiable to take the risk.

The law makes clear that:

(i) The question as to whether taking the risk is unjustifiable is one of fact, and

(ii) Proof of intention, knowledge or recklessness will satisfy the fault element of recklessness.

  1. Negligence

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

(A) 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.

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