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Criminal Code Bill 1994



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House: Senate

Portfolio: Attorney-General

Commencement: Commencement on a day to be fixed by Proclamation. However if the Act does not commence within 5 years from the date of Royal Assent, it will commence on the first day after the end of that period.

Contents

Purpose

Background

Main Provisions

Physical Elements of an Offence

Fault Elements of an Offence

Cases where Fault Elements are not Required

Infancy

Mental Impairment

Intoxication

Mistake or Ignorance of Fact

Mistake or Ignorance of Statute Law

Mistake or Ignorance of Subordinate Legislation

Claim of Right

Intervening Conduct or Event

Duress

Sudden or Extraordinary Emergency

Self-defence

Attempt

Complicity and Common Purpose

Incitement

Conspiracy

Corporate Criminal Responsibility

Proof of Criminal Responsibility

Remarks

Mental Impairment

Intoxication

Duress

Self-defence

Conspiracy

Corporate Criminal Responsibility

Purpose

The purpose of the Bill is to set out the general principles of criminal responsibility as part of a larger exercise to revise Commonwealth criminal law and develop a Model Criminal Code.

Background

In 1987, the Commonwealth Attorney-General established a committee to review all Commonwealth criminal law (the Gibbs Committee). Its chair was the former Chief Justice of Australia, Sir Harry Gibbs. The committee issued a Discussion Paper dealing with principles of criminal responsibility in May 1989 and submissions were invited. In July 1990, the committee released a report entitled Principles of Criminal Responsibility and Other Matters. 1 The report's recommendations were examined by the Third International Criminal Law Congress held in Hobart in 1990.

The need for reform of and consistency in criminal laws has been recognised by all Australian jurisdictions. At the time of the establishment of the Gibbs Committee, virtually all Australian States and Territories were reviewing their criminal laws. In June 1990, the Standing Committee of Attorneys-General agreed to put the question of the development of a uniform criminal code on its agenda.

Against this background, the Standing Committee of Attorneys-General established the Criminal Law Officers Committee (CLOC). The committee consisted of senior officers from each jurisdiction with responsibility for advising their Attorney-General on criminal law matters. CLOC decided that fundamental to a possible model code was a chapter on criminal responsibility - which would provide the building blocks for chapters on offences and procedural matters.

Submissions were invited to a Discussion Draft entitled General Principles of Criminal Responsibility issued by CLOC in July 1992. 2 The Committee then embarked on consultative processes. The Discussion Draft was considered by the Fourth International Criminal Law Conference in September 1992. 3 CLOC drafted a Final Report which was issued in December 1992. The present Bill largely corresponds to that Final Report and the Model Code chapter on criminal responsibility drafted by CLOC. 4

The Criminal Code Bill 1994 (the Criminal Code Bill) is designed to serve a number of purposes. The first relates to the need for the Commonwealth to reform its own criminal laws. The Crimes Act 1914 (Cwlth) (the Crimes Act) applies common law principles to offences created by the Act. However, the major application of the Act relates to Commonwealth officers and property. The great raft of Commonwealth offences is created in other statutes. The effect of section 80 of the Judiciary Act 1903 (Cwlth) is that when a State or Territory court is exercising federal jurisdiction in a criminal case arising under a statute other than the Crimes Act, questions of criminal responsibility must be decided according to the law of the particular State or Territory. 5

As the Gibbs Committee remarked, 'What principles of criminal responsibility apply in a prosecution for a breach of Commonwealth law will depend on whether the proceedings arose under the Crimes Act or under another Commonwealth statute and where the court is held.' 6

A simple example of the different consequences that may flow from differences in Commonwealth and State laws may be useful. Under the Crimes Act, seven is the age of criminal responsibility. However, the offence charged may not be against the Crimes Act, it may be against another Commonwealth statute. The age of criminal responsibility varies significantly throughout the jurisdictions, thus the place where the court is held will determine the age which applies. For example, the age of criminal responsibility is eight in the Australian Capital Territory and in Victoria; it is 10 years in NSW, Queensland, South Australia or the Northern Territory. Seven is the age of criminal responsibility in Western Australia and Tasmania. 7

The idea that there should be one Commonwealth criminal law is not hard to fathom in these circumstances - on the grounds of both consistency and equity.

Another major reason for the Criminal Code Bill relates to the work of the Standing Committee of Attorneys-General and the Criminal Law Officers Committee which embraced the idea of a model criminal code for all Australian jurisdictions.

In Australia, criminal law has generally been a State matter with the Commonwealth enacting criminal laws pursuant to other heads of power. Two traditions of criminal law exist in Australia. New South Wales, Victoria, the ACT, and South Australia are regarded as common law jurisdictions. In Queensland, Tasmania, Western Australia and the Northern Territory criminal codes have been enacted. There are major differences between the two systems and many commentators regard these differences as largely unnecessary in a country with a small and relatively homogeneous population. The Second Reading Speech refers to support from the States and Territories for a model criminal code. 8

A further reason for the introduction of a Criminal Code Bill is social justice considerations. Codification is undertaken to make the law easier to understand, to find, and to ensure that it is democratically made and amended - ie through Parliament. 9 Codification should result in a clear exposition of the law so it is evident that the law must be obeyed and to clarify what has to be obeyed.

Codification will not, of course, extinguish all problems associated with the interpretation and application of the criminal law. A large body of authority may be built up on the interpretation of code law.

Main Provisions

Commencement

Clause 2 provides that the Act will commence on a day fixed by Proclamation. However, if it is not commenced within 5 years from the date of Royal Assent, it will commence at the end of that period.

The Criminal Code

Clause 3 provides that the Schedule to the Act has effect as a Commonwealth law and can be cited as the Criminal Code.

Definitions

Clause 4 provides for definitions in the Code.

Preliminary

Proposed section 1.1 deals with codification and provides that Commonwealth offences will be confined to offences created by Acts or regulations once the legislation has commenced.

General Principles of Criminal Responsibility

Part 2.1 Purpose and Application

Proposed section 2.1 states that the purpose of the Chapter is to codify principles of criminal responsibility under Commonwealth law. Those principles are applied to any offence.

Proposed section 2.2 provides that the Chapter applies to all offences against the Criminal Code. After a period of 5 years from the date the Act receives Royal Assent, the chapter applies to all other offences.

Part 2.2 - The Elements of an Offence

Division 3 - General

[Traditionally, crimes are analysed in terms of actus reus (guilty act) and mens rea (guilty mind). In the Bill these elements are called physical elements and fault elements.]

Proposed subsection 3.1 provides that an offence contains physical and fault elements. However, a law may provide that an offence does not contain a fault element.

Proposed subsection 3.2 provides that to establish guilt it must be proven that the relevant physical and accompanying fault elements existed.

Division 4 - Physical elements

[A component of the physical element of an offence is that of voluntariness. In other words, the notion of conduct is not confined to physical movement. Criminal laws are intended to deter wrongdoing and control conduct. 10 Ideas of criminal responsibility are grounded in the idea of free will. 11 Thus, it is generally the case that a person will not be criminally liable unless she or he had the power to control their action - that is, that conscious will was applied to the action.]

Proposed section 4.1 defines the physical element of an offence to be conduct, circumstances or the consequences of conduct.

Proposed section 4.2 deals with voluntariness and provides that conduct must be voluntary to constitute a physical element of an offence. Voluntariness is defined in terms of will and examples of non-voluntary conduct are provided. Importantly, evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary.

Proposed section 4.3 provides that an omission to act can be a physical element if there is appropriate statutory provision or if it is the result of a breach of duty to act.

Division 5 - Fault Elements

[The expression 'fault element' was preferred to 'mental element' by the drafters of the Bill. It includes mental state (eg knowledge or intention), failure to comply with a standard of conduct (eg negligence) or a combination of both mental state and failure to comply with a standard (eg recklessness).]

Proposed section 5.1 provides that intention, knowledge, recklessness or negligence may be fault elements. These terms are then defined in proposed sections 5.2 - 5.5.

Proposed section 5.6 deals with offences which do not specify fault elements. Where the physical element of an offence consists of conduct, intention is the fault element. However, if the physical element is a circumstance or a result then the minimum fault element is recklessness.

Division 6 - Cases where fault elements are not required

[At common law, a guilty mind is usually a necessary element in an offence. However, an increasing number of statutory offences have evolved which dispense with proof of intent. Such offences are usually designated regulatory offences and deal with public health, public safety, hygiene, weights and measures etc. Where a defence of honest and reasonable mistake of fact is available, these offences are called strict liability offences. Where proof of intent is dispensed with entirely ie there is no defence of mistake of fact available, the offences are designated as absolute liability offences. The terminology of strict and absolute liability offences has not always used consistently. Division 6 is designed to clarify the law.]

Proposed section 6.1 provides that a strict liability offence is one without a fault element. A defence of mistake of fact is available.

Proposed section 6.2 provides that an absolute liability offence is one without a fault element and one for which no mistake of fact defence is available.

In the case of either strict or absolute liability offences, proposed subsections 6.1(3) and 6.2(3) provide that other defences may be available.

Part 2.3 - Circumstances in which there is no criminal responsibility

Infancy

[At common law a child under the age of seven is not criminally accountable for his or her actions. There is a conclusive presumption that children under a certain age do not have the capacity to form the necessary state of mind. A decision on the age at which they will be criminally liable will be an arbitrary one. The age of 10 years which is provided in the Bill appears to have been selected because in no Australian jurisdiction is a child of 10 years or more exempt from criminal liability.]

Proposed sections 7.1 and 7.2 relate to children under the age of 10 and children over the age of 10 and under the age of 14, respectively. No criminal responsibility attaches to a child under the age of 10. Criminal responsibility will only attach in to a child over the age of 10 and under the age of 14, if the child knows that the conduct is wrong.

Mental Impairment

[The law accepts that where, at the time of an offence, a person is suffering from certain types of mental impairment, no criminal liability will attach to that person.

At common law, the McNaghten test requires that an accused person must be suffering from a disease of the mind which prevented him or her knowing the nature and quality of the act or that it was wrong.]

Proposed paragraphs 7.3(1)(a) and (b) provide that a person is not criminally responsible if, at the time of the offence, he or she was suffering from mental impairment which had the effect of preventing the person knowing the nature and quality of the conduct or that the conduct was wrong.

Proposed paragraph 7.3(1)(c) adds that the accused is not criminally responsible where he or she was suffering from mental impairment at the time of the offence and was not able to control his or her conduct. [Such a provision is available under the Griffith Codes 12 but not at common law].

Proposed subsection 7.3(3) provides a presumption that a person is not suffering from mental impairment. This presumption is rebuttable on the balance of probabilities by either the defence or the prosecution.

Proposed subsection 7.3(4) provides that the prosecution can raise the mental impairment defence by leave of the court.

Proposed subsections 7.3(5) and 7.3(6) provide that a tribunal of fact must return a verdict that a person is not guilty by reason of mental impairment if and only if satisfied that the person is not responsible for the offence only because of mental impairment.

Proposed subsections 7.3(8) and (9) contain definitions of mental impairment and mental illness.

Intoxication

[Intoxication is important in the criminal law in two ways. First it can be relevant to establishing whether the accused had the required fault element for a particular offence. Second, it may be relevant to establishing whether the physical element of an offence can be attributed to the accused - on the grounds that the intoxication was so severe as to negative voluntariness.

Given the use of alcohol and other drugs in Australia, an accused may well be intoxicated at the time an alleged crime is committed. The question has arisen whether intoxication should be available to deny the mental element of an offence. At common law the decision in O'Connor (1980) 146 CLR 64 has meant that self-induced intoxication may be used in this way.

The Bill has refined the approach of the Code jurisdictions and the English House of Lords in Majewski [1977] AC 443 and opted for the view that self-induced intoxication should not be relevant in relation to fault elements of basic intent.]

Proposed section 8.1 provides that intoxication will be self-induced unless it came about involuntarily or as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.

Proposed section 8.2 covers intoxication as it relates to fault elements of basic intent. Basic intent fault elements are those relating to intention with regard to conduct, not circumstances or consequences. The Bill provides that in the case of a basic intent fault element, evidence of self-intoxication cannot be used. It can, however, be used to establish accidental conduct. [ Note: the Explanatory Memorandum and the Note in proposed section 8.2 in the Bill should read 'A fault element of intention with respect to a circumstance or with respect to a consequence is not a fault element of basic intent.']

Proposed section 8.3 deals with intoxication and negligence. Proposed subsection 8.3(1) provides that in an offence involving negligence as a fault element, an accused who was intoxicated must be assessed against the standard of a reasonable person who is not intoxicated.

However, it may be that the intoxication was involuntary. In such a case proposed subsection 8.3(2) provides that an accused is not held to the standard of conduct of a reasonable person but to the standard of a reasonable person intoxicated to the same extent as the defendant.

Intoxication and defences

Proposed subsection 8.4(1) provides that in the case of defences involving actual knowledge or belief, intoxication can be considered in determining whether the accused had that knowledge or belief.

Proposed subsections 8.4(2) and 8.4(3) deal with defences based on reasonable belief. The former provides that if any part of a defence is so based then the relevant standard is that of a reasonable person who is not intoxicated. However, the latter provides that in the case of involuntary intoxication, the relevant standard is that of a reasonable person intoxicated to the same extent as the accused.

Proposed section 8.5 deals with involuntary intoxication and provides that a person is not criminally responsible for an offence if the proscribed conduct (a physical element of the offence) was the result of involuntary intoxication.

Division 9 - Circumstances involving mistake or ignorance

Mistake or ignorance of fact

[If the fault element of a crime is composed of knowledge, intention or recklessness then an honestly held but mistaken belief may negate the existence of that fault element. At common law, whether the belief was reasonable goes only to deciding whether the belief was actually held. 13 ]

Proposed subsection 9.1(1) provides that mistaken belief about or ignorance of facts on the part of the accused may negative intention, knowledge or recklessness. The mistake or ignorance must negate a fault element of the offence. It does not negative an offence involving negligence as such offences only require that the accused intends to act.

Proposed subsection 9.1(2) enables a tribunal of fact to consider whether the mistaken belief or ignorance was reasonable in the circumstances.

Proposed section 9.2 provides for a defence of reasonable mistake of fact in the case of a strict liability offence.

Mistake or ignorance of statute law

[At common law, neither mistake about nor ignorance of the law is a defence to a crime. There are a number of reasons for this rule. They include the fact that it would be difficult for the prosecution to prove that an accused person was ignorant of or mistaken about, the law. In addition, it has been argued that if mistake or ignorance were a defence, citizens might deliberately fail to apprise themselves of the law. 14

Proposed subsection 9.3(1) reiterates the rule that ignorance of or mistake about, the Act that creates or affects the offence does not excuse a person from criminal responsibility.

Exceptions are provided in proposed subsection 9.3(2) if an Act is expressly or impliedly of a contrary effect or if the ignorance or mistake negates a fault element of the offence.

Mistake or ignorance of subordinate legislation

[A different view has been taken about mistake about or ignorance of subordinate legislation. While it is often said that the passage of a Bill through Parliament puts the public on sufficient notice of the existence of legislation, the same cannot be said for subordinate legislation. There is a huge volume of subordinate legislation which means that it is unrealistic to presume that the contents of subordinate legislation are known except in certain circumstances. For these reasons, while the Bill provides that an accused person may be criminally responsible even if mistaken about or ignorant of subordinate legislation, exceptions are provided.]

Proposed section 9.4 provides that ignorance of or mistake about, the existence or content of subordinate legislation which creates or affects the offence does not preclude criminal liability for an offence.

Exceptions are provided in proposed subsection 9.4(2). Importantly, they include the case where copies of the subordinate legislation have not been made available to the public and the accused could not have been aware of the content of the subordinate legislation even had he or she exercised due diligence.

Claim of right

[In relation to property offences, a person will not be criminally responsible if acting under a mistaken belief that he or she was asserting a lawful claim to that property. The belief need not be reasonable and the mistake may be either a mistake of fact (eg a person mistaking someone else's belongings for their own) or a mistake of law (eg the person believed that he or she had good title to the property). 15 ]

Proposed subsection 9.5(1) provides that a person is not criminally responsible for an property offence if, at the time of the proscribed conduct, he or she was under a mistaken belief about ownership and the existence of ownership would have negatived a fault element of the offence.

Proposed subsection 9.5(3) precludes a defence of claim of right where force was used by the defendant.

Division 10 - Circumstances involving external factors

Intervening conduct or event

[There is a common law defence of external intervention involving strict and absolute responsibility offences. The Bill does not apply the defence of intervening conduct or event to offences involving fault elements. The reasoning is that in such cases the accused will either lack the fault element or, where negligence is the fault element, will be able to establish that he or she had taken reasonable care.]

Proposed section 10.1 provides that a person is not criminally responsible for a strict or absolute liability offence where the physical element, although committed by the defendant, was brought about by a person or a non-human act over which the defendant had no control and could not have been reasonably expected to guard against.

Duress

[At common law there is a defence of duress. The Gibbs Committee remarked that the scope of the defence was not well-defined. 16 ]

Proposed subsection 10.2(1) deals with duress and provides that no criminal responsibility attaches if the proscribed conduct is carried out under duress.

Proposed subsection 10.2(2) provides that duress exists where the accused reasonably believes that a threat has been made which will be carried out unless an offence is committed. Additionally, there must be no reasonable way to nullify the threat and the conduct must be a reasonable response to the threat.

Sudden or extraordinary emergency

[This proposed section addresses what is called at common law the defence of necessity. Like the defence of duress, the defence of necessity removes criminal liability by justifying or excusing what is otherwise unlawful conduct.]

Proposed subsection 10.3(1) provides that no criminal responsibility attaches where the proscribed conduct was carried out as a result of sudden or extraordinary emergency.

Proposed subsection 10.3(2) requires that for the defence of sudden or extraordinary emergency to apply the accused must have reasonably believed that a sudden or extraordinary emergency existed and that committing the offence was the only reasonable way to deal with the emergency and that the conduct itself was a reasonable response to the emergency.

Self-defence

[The defence of self-defence recognises that a person may use force in defending themselves or others. Difficulties with the use of the defence are associated with the fact that the use of force must have been necessary in the circumstances and that the amount of force used is not excessive in the circumstances.]

Proposed subsection 10.4(1) provides for a defence of self-defence.

The test for self-defence which appears in proposed subsection 10.4(2) limits the defence to certain situations including where the person believes the conduct to be necessary to defend himself, herself or another person and that the conduct is a reasonable response to the circumstances as perceived by the accused.

Proposed subsections 10.4(3) and 10.4(4) provide that the defence of self-defence cannot be used in certain circumstances - for example, where the accused is responding to lawful conduct that he or she knew was lawful.

Part 2.4 - Extensions of criminal responsibility

Attempt

[It is a crime to attempt to commit a crime. The law of attempt criminalises conduct which occurs before an offence is committed. It also has application in the case where a person has tried to commit a crime but failed. More than preliminary actions must have occurred before attempt can be established.]

Proposed subsection 11.1 provides that a person who has attempted to commit an offence is guilty of an attempt to commit the offence but must penalised as if the attempted offence had been committed. [The level of penalty is intended to emphasise the gravity of the offence.]

Proposed subsection 11.2(2) provides that before a person can be guilty of attempting an offence, his or her conduct must amount to more than mere preparation. Whether the conduct is merely preparatory is a matter for the tribunal of fact.

Proposed subsection 11.1(4) provides, among other things, that a person may be convicted of an attempted offence even if it would have been impossible to commit the offence itself. [This provision is in accordance with the recommendations of the Gibbs Committee and is intended to punish and deter those who might subsequently attempt an offence and succeed.]

Complicity and common purpose

[Complicity relates to criminal liability of groups. The terms commonly employed in are 'aiding, abetting, counselling or procuring.' Aiding and abetting usually refer to help provided to the principal offender at the scene of the crime. Counselling or procuring generally involves participating preparing for or planning the crime.]

Proposed subsection 11.2(1) provides that a person who aids, abets, counsels or procures the commission of an offence by another, commits that offence.

Proposed section 11.2(2) provides that for a person to be guilty of aiding, abetting etc, their conduct must have in fact aided, abetted, counselled or procured the commission of the offence and the offence must have been committed by the other person.

Proposed subsection 11.2(3) provides that the accused must have intended that his or her conduct would aid, abet etc the commission of the offence or be reckless about the commission of the offence.

Proposed subsection 11.2(4) provides that a person is not guilty of aiding, abetting etc if, prior to the commission of the offence, the person withdrew his or her involvement and took all reasonable steps to prevent the commission of the offence.

Innocent agency

Proposed section 11.3 provides that a person who procures conduct of another person -an innocent agent - is guilty of any offence committed by the innocent party.

Incitement

[At common law it is an offence for one person to incite another to commit an offence. No agreement to commit the offence is necessary nor need any steps have been taken towards the substantive offence. 17 Once the incitement has occurred the offence is complete. Incitement is an example of the criminalisation of conduct which occurs before the unlawful conduct.]

Proposed subsection 11.4(1) provides that a person who urges the commission of an offence is guilty of incitement.

Proposed subsection 11.4(2) provides that intention not recklessness is the fault element for incitement.

Proposed subsection 11.4(3) provides that a person may be guilty of incitement even if the offence was impossible to commit.

Conspiracy

[At common law, conspiracy criminalises conduct by a group of individuals who agree to carry out unlawful conduct.]

Proposed subsection 11.5(1) provides that a person who conspires with another to commit an offence punishable by imprisonment for more than 12 months or by a fine of 200 penalty units (presently $20,000) or more is guilty of the offence of conspiracy to commit that offence. It further provides that if found guilty the accused must be penalised as if the offence to which the conspiracy related had been committed.

Corporate criminal responsibility

[The common law has not dealt adequately with criminal conduct by corporations. Until the late 19th century criminal liability of corporations was virtually unknown. At first it was limited to public nuisance, criminal libel offences and statutory offences.

Both the Gibbs Committee and the Criminal Law Officers Committee concluded that common law dealt particularly inadequately with the criminal liability of large corporations. 18 The leading case on corporate criminal liability is Tesco Supermarkets Ltd v. Nattrass [1972] AC 153. Tesco requires that the person involved in the offence represented the mind of the corporation. While this principle may be applicable to small corporations it is less readily applicable to large corporations. In large corporations those involved in the offence are unlikely to be of senior management status and so will not represent the mind of the corporation.

The Gibbs Committee further concluded that it would be unwise to rely on the evolution of the common law to rectify current deficiencies. Given the power, influence and activities of corporations it is generally considered important that criminal liability attach to them for both strict liability and offences containing fault elements. 19 ]

Proposed subsection 12.1(1) provides that the Code applies to corporations. A corporation may be found guilty of any offence, including one that is punishable by imprisonment. Section 4B of the Crimes Act allows a fine to be imposed for offences that only specify imprisonment as a penalty. 20

Proposed subsection 12.2 deals with corporations and the physical element of an offence. If an employee, agent or officer of a corporation acts within the actual or apparent scope of his or her actual or apparent authority, then that act is attributable to the corporation.

Proposed subsection 12.3 deals with corporations and offences requiring proof of intent, knowledge or recklessness. The proposed subsection sets out a number of ways in which it can be established that a corporation expressly, tacitly or impliedly authorised the commission of an offence. For example, it may be shown that the conduct was performed, authorised or permitted by the board of directors or a high managerial agent; or that a corporate culture existed that either encouraged non-compliance or failed to encourage compliance.

Proposed subsection 12.3(3) provides a defence of due diligence for corporations in relation to their high managerial agents.

Proposed section 12.4 deals with corporate negligence. Proposed paragraph 12.4(3) provides that evidence of negligence includes inadequate corporate management, control or supervision or adequate communication channels.

Proposed subsection 12.4(2) provides that where negligence is the fault element of an offence, it can be proven by looking at whether the corporation's conduct when viewed in its entirety was negligent. It is not necessary to establish negligence in an individual employee, agent or officer of the corporation.

Proposed section 12.5 deals with strict liability and corporations. A corporation may only rely on a mistake of fact defence if it can show that an employee etc was under a mistaken but reasonable belief and the corporation proves that it exercised due diligence to prevent the conduct occurring.

Proposed section 12.5 also sets out the circumstances which evidence failure to exercise due diligence.

Proof of criminal responsibility

[It is the duty of the prosecution to prove the guilt of the accused person. This is the golden thread of English criminal law referred to in Woolmington v. DPP (1935) AC 462. If something is asserted by the prosecution then the prosecution must supply supporting evidence which meets the required standard of proof. This is called the legal burden of proof and generally rests on the prosecution. An evidential burden relates to the duty to present evidence that will be able to be considered by the jury.]

Proposed subsection 13.1(1) provides that the prosecution bears the legal burden of proving every element of an offence. The legal burden means 'in relation to a matter, the burden of proving the existence of that matter.'

In proposed subsection 13.1(2) it is further provided that the prosecution has the legal burden of disproving any matter where an evidential burden of proof placed on the defendant has been discharged.

Proposed subsection 13.2(1) provides that the prosecution bears the legal burden of proof beyond reasonable doubt, unless the law creating the offence provides otherwise.

Proposed subsection 13.3(1) deals with the defence's evidential burden of proof. It provides that where a burden of proof is placed on a defendant it is an evidential burden only.

Under proposed subsection 13.3(6) the evidential burden can be discharged by the defendant pointing to evidence suggesting there was a reasonable possibility that a matter existed or did not exist.

Proposed section 13.4 deals with the defence's legal burden of proof. A burden is a legal burden only if the law creating the offence so provides, requires the defendant to prove the matter or creates a presumption that a matter exists unless the contrary is proved.

Proposed section 13.5 deals with the defence's standard of proof and provides that when a legal burden is placed on the defendant it must be discharged on the balance of probabilities.

Proposed section 13.6 deals with averments. It provides that the prosecution must not use an averment (an allegation in a information or complaint) to allege intention or any other fault element or use an averment if the offence is punishable by imprisonment.

Remarks

Mental Impairment

There have been some difficulties experienced by the courts in interpreting the McNaghten concept of 'disease of the mind'. In the view of the Gibbs Committee the concept was too narrow to encompass arrested development or mental retardation. 21 The Bill has used the expression 'mental impairment' which includes intellectual disability and severe personality disorder.

More generally there has been debate about the retention of the defence of insanity. These arguments are summarised by the Victorian Law Reform Commission in Mental Malfunction and Criminal Responsibility. 22 In favour of abolition of the defence it can be argued that the defence is concerned with moral and not criminal responsibility; that most accused persons using the insanity defence intended their actions but argue that their mental impairment prevented them from knowing that their actions were wrong. Such defendants, it is suggested, should be convicted. In favour of the retention of the defence it can be argued that criminal responsibility depends on free will and that a person suffering from mental impairment cannot be said to exercise free will. In addition, the criminal law does recognise situations where intentional conduct is excused - the availability of defences such as self-defence, necessity and duress are examples.

Another issue raised is that it is inconsistent to detain a person who has been found not guilty by reason of insanity, at the Governor's Pleasure. As this disposition is automatic it clearly does not involve an assessment of the dangerousness of the offender.

The Victorian Law Reform Commission recommended that the insanity defence be retained but recommended a number of reforms. Disposition of the accused person was one area where reform was regarded as particularly important. The Victorian Law Reform Commission recommended that a those found not guilty of an offence on the ground of mental impairment should not be detained in prison. In addition, it recommended that the Governor's Pleasure system should be abolished and that if a person is found not guilty on the grounds of mental impairment, the court should be able to chose between disposition options including discharge, non-custodial sentence and custody.

The need for reform was also recognised by the Criminal Law Officers Committee and it appears that it will be addressed in a separate chapter of the Criminal Code.

Intoxication

During the work of the Gibbs Committee and the Criminal Law Officers Committee, there was debate about the relevance of intoxication to criminal responsibility. The debate primarily related to whether evidence of intoxication should be relevant to offences of basic intent.

The Gibbs Committee recommended a codification of the law based on the principles of Majewski[1977] AC 443. The Criminal Law Officers Committee proposed that in an offence containing a fault element other than negligence, evidence of intoxication could be taken into account to decide whether the fault element existed.

The position of the Code States is that intoxication can only be taken into account in specific intent offences. The position of the common law States is reflected in the judgment in O'Connor (1980) 146 CLR 64. In O'Connor, it was held that intoxication was a relevant factor in determining when an accused had the necessary mens rea for an offence - even if the intoxication was self-induced.

The Bill refines the position of the Code States and the decision of the House of Lords in Majewski [1977] AC 443. It provides that self-induced intoxication should not be relevant to fault elements of basic intent.

The courts have experienced considerable difficulty in distinguishing between basic intent and specific intent offences. Concern has been expressed about consistency when distinctions have been made. In O'Connor's case, Stephen J held that the division of offences between specific and basic intent offences was uncertain and inconsistent. He said 'Since the seriousness of the crime or its social consequences does not play any part in determining whether or not a crime is one of specific intent, it is hardly surprising that the operation of the principle may seem haphazard.' 23

The Bill attempts to clarify the law, not by trying to define offences as specific or basic intent offences, but by focusing on the fault elements of each offence. Thus, in the case of murder it is not necessary to decide whether the offence itself is one of basic or specific intent. Instead, an examination of the offence reveals that one element of the offence is an intent to kill. This is not a fault element of basic intent. The intent to perform the conduct that causes the death is, however, a fault element of basic intent. Under the Bill, evidence of self-induced intoxication cannot be raised in determining whether the latter fault element, which is one of basic intent, existed.

While proposed section 8.2 attempts to overcome the difficulties raised by the traditional separation of offences into those of basic intent and those of specific intent, some 'in principle' difficulties remain. It can be argued, for example, that it offends the underlying principle of criminal responsibility that, except in cases of strict liability or criminal negligence, a blameworthy state of mind is a condition of guilt.

Self-induced intoxication and voluntariness is also an issue. In the common law jurisdictions, following O'Connor, an accused person may assert that he or she was so intoxicated that the conduct was not voluntary. As the Criminal Law Officers Committee remarked, '... the O'Connor argument [arises] infrequently and [is] usually not successful.' 24 The Bill ( proposed subsection 4.2(6)) provides that evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary.' It can be argued as a matter of principle that criminal responsibility should not be imposed where no will to act existed.

In summary, it can be argued that the effect of intoxication on capacity is the same irrespective of whether the intoxication is self-induced or involuntary. It can be argued that the proposed section offends against the principle of criminal law that action and intent should coincide. 25 Last, it can be argued that its effect is to punish an accused person merely for the fact that he or she is intoxicated. In other words, that the position in O'Connor should be followed.

Duress

It is sometimes argued that the defence of duress should be limited - that it should not be available for serious offences and that it should be limited to certain kinds of threat, for example, threats of death or grievous bodily harm. The Gibbs Committee recommended that the defence should be limited to circumstances where there was an immediate danger of death or serious injury, including serious sexual assault. However, the Bill has adopted the position that, logically, once a threat exists the nature of that threat is irrelevant and that it is the existence of the threat rather than the kind of threat which is important. The drafters of the Bill consider that the provision of an objective element in regard to the necessity of the conduct and the response to the threat provide adequate safeguards.

Self-defence

Proposed section 10.4 reworks the defence of self-defence. It takes into account women's experiences - particularly the experiences of battered women who kill. It has been argued that 'legal principle does not accommodate the kinds of circumstances where women might typically need to act in self-defence'. 26

In the words of the Australian Law Reform Commission:

Certain elements traditionally associated with the defence make it very difficult to establish in situations where a woman has killed her abuser, particularly where she has killed in fear of future deadly violence against herself or her family. To raise the defence successfully she must show that her conduct was a reasonable response in the circumstances. This means that the force she used was reasonably proportionate to the threat to her, that the threat was imminent, and that she was under no duty to retreat or escape rather than retaliate. Where juries and judges lack an understanding of the dynamics and effect of violence in the home, they may not see the woman's response as "reasonable". 27

According to O'Donovan, 'The problem here for women is that, being on average of a smaller size than men, being less likely to have training in controlled aggression, the requirement of reasonable force in countering an attack may be inappropriate.' 28

While the defence of self-defence may not often be relevant to Commonwealth offences, it is 'important for State and Territory legislation to which the same principles will apply.' 29

In the Bill, the test of necessity for self-defence is subjective, the test of proportionality is objective. There have been some suggestions that the test of proportionality should be subjective but the Bill does not adopt this approach. 30

Other defences

Other defences such as provocation, diminished responsibility and infanticide will be part of the Code dealing with homicide.

Conspiracy

Proposed paragraph 11.5(2)(c) provides that in order for an accused person to be guilty of an offence, that person or another party to the agreement must have 'committed an overt act pursuant to the agreement'. It is arguable that such a view is inconsistent with the proper role of the offence of conspiracy which is to attach criminality to the overt formation of the agreement by a number of persons to commit a crime. The traditional view of conspiracy was that the justification for the offence existed in the mutual encouragement or the mutual incitement to commit the offence.

The charge of conspiracy has been misused. Gillies remarks that conspiracy '... is a device of great convenience in prosecuting substantive criminal enterprises engaged in by a number of persons, ...[but that] does not necessarily mean that it should also be able to be charged in cases where the parties to the agreement have done little or nothing towards its transaction. ... There have been cases where conspirators who have not gotten past the commission of preparatory acts, have been given heavy sentences, which is somewhat anomalous when compared to the law's treatment of criminally minded individuals.' 31

The better view appears to be that contained in the Bill which allows conspirators to withdraw from a conspiracy.

Corporate criminal responsibility

Importantly, the Bill provides that corporations may be found guilty of any offence including one that results in imprisonment as a punishment. Section 4B of the Crimes Act currently provides that a fine can be imposed for offences that only specify imprisonment as a penalty. Given the existence of workplace or product related death this provision is appropriate. Prosecutions of corporations for murder or manslaughter in these circumstances have been brought in Australian jurisdictions such as Victoria and overseas. The question which remains is whether corporate executives should be liable to imprisonment for offences such as homicide. Consideration of this awaits later chapters of the Code.

Endnotes

1 Review of Commonwealth Criminal Law, Interim Report, Principles of Criminal Responsibility and Other Matters, July 1990, AGPS, Canberra.

2 Criminal Law Officers Committee, Model Criminal Code, Discussion Draft. General Principles of Criminal Responsibility, July 1992, Commonwealth Government Printer, Canberra.

3 Reported in Murray, M. 'Summary of Congress Report: Fourth International Criminal Law Congress', (1993) 17 CLJ 189.

4 Criminal Law Officers Committee, Model Criminal Code, Final Report, General Principles of Criminal Responsibility, December 1992, AGPS, Canberra.

5 Review of Commonwealth Criminal Law, op.cit; p 10.

6 Ibid.

7 Ibid, p 11.

8 Second Reading Speech, Senate, Parliamentary Debates (Hansard), 30 June 1994, p 15.

9 Goode, M. 'The codification of Australian criminal law', (1992) 16 CLJ 5.

10 Review of Commonwealth Criminal Law, op.cit.

11 Criminal Law Officers Committee, December 1992, op.cit.

12 In the Code jurisdictions, a Criminal Code has been enacted which replaces common law crimes, abolishes some basic common law principles such as mens rea and replaces them with statutory offences and doctrines. Common law offences can no longer be charged in those jurisdictions. The first Criminal Code in Australia was introduced in Queensland and was the work of Sir Samuel Griffith who later became Australia's first Chief Justice. The Codes of Queensland and Western Australia are virtually identical. Those of Tasmania and the Northern Territory manifest differences from the other Codes. The term 'Griffith Codes' encompasses all Australian Code jurisdictions -see Explanatory Memorandum, p 11.

13 Review of Commonwealth Criminal Law, op.cit.

14 Ibid.

15 Brown, D. et.al. Criminal Laws. Materials and Commentary on Criminal Law and Process of New South Wales, 1990, Federation Press, Sydney, p 1183.

16 Review of Commonwealth Criminal Law, op.cit; p 127.

17 Brown, op.cit; p 1257.

18 Review of Commonwealth Criminal Law, op.cit; p 305.

19 Ibid.

20 See note, proposed subsection 12.1(2).

21 Review of Commonwealth Criminal Law, op.cit; p 101.

22 Law Reform Commission of Victoria. Mental Malfunction and Criminal Responsibility. Report No.34, October 1990.

23 (1980) 146 CLR 64 at 102.

24 Criminal Law Officers Committee, December 1992, op.cit; p 17.

25 Fisse, B. Howard's Criminal Law, 5th ed, 1990, Law Book Company, Sydney, p 439.

26 Sheehy, E.A., Stubbs, J. Tolmie, J. 'Defending battered women on trial: the battered woman syndrome and its limitations', (1992) 16 CLJ 369 at 371-2.

27 Australian Law Reform Commission, Equality Before the Law: Justice for Women. Report No.69, Part I, 1994, p 274.

28 O'Donovan, K. 'Defences for battered women who kill', (1991) 18 J Law Society 219 at 221.

29 Second Reading Speech, Senate, Parliamentary Debates (Hansard), 30 June 1994, p 22 .

30 See, for example, Murray, M. 'Summary of Congress Report: Fourth International Criminal Law Congress', (1993) 17 CLJ 188. The report states: '... it was suggested that there should be an abandonment of any objective formulation of the test of acceptable defensive force, but the proposition did not appear to attract general support'(at 194).

31 Gillies, P. 'Secondary Offences and Conspiracy', (1991) 15 CLJ 157 at 164, 165.

Jennifer Norberry

(Ph. 06 2772476)

Bills Digest Service 31 August 1994

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1994.

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Published by the Department of the Parliamentary Library, 1994.