The Criminal Code

Criminal Code Act 1995 (Cth) and Schedule thereto entitled the Criminal Code

[11-000] Introduction

The following notes are generally confined to sections of the Criminal Code in respect of which there are relevant case references. They are based on the assumption that the judge will have an up to date copy of the Criminal Code before him or her. References to “The Code” in this chapter are to the Criminal Code, as amended.

Judges may also find assistance from the following publication:

Attorney General’s Department, “The Commonwealth Criminal Code: A Guide for Practitioners”, available url: https://www.ag.gov.au/crime/publications/commonwealth-criminal-code-guide-practitioners (March 2002) (accessed February 2022).

[11-010] Case references

In order to place certain of the case references in context, relevant sections of the Code are printed below in italics.

1	Chapter 1 — Codification
1.1	*Codification* The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.

Chapter 1 — Codification

1.1

Codification

The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.

3	Part 2.2 — The Elements of an Offence
3.1	Elements (1) An offence consists of physical elements and fault elements. (2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements. (3) The law that creates the offence may provide different fault elements for different physical elements.
3.2	Establishing guilt in respect of offences In order for a person to be found guilty of committing an offence the following must be proved: (a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt; (b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

Part 2.2 — The Elements of an Offence

3.1

Elements

(1): An offence consists of physical elements and fault elements.
(2): However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
(3): The law that creates the offence may provide different fault elements for different physical elements.

3.2

Establishing guilt in respect of offences

In order for a person to be found guilty of committing an offence the following must be proved:

(a): the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b): in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

5	Fault elements
*5.1*	Fault elements (1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence. (2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.
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.

Case references

In R v Saengsai-Or [2004] NSWCCA 108 at [72], it was held that the physical element of the offence created by s 233B(1)(b) of the Customs Act 1901 (Cth) (importation of prohibited imports), as the section was at the date of the offence, was one of conduct. In respect of this physical element, which consisted only of conduct, the provisions of s 5.6(1) applied and intention was the sole fault element.

However, by the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 No 127, s 233B(1) was amended, effective from 28 September 2004 to read, relevantly:

Special provisions with respect to narcotic goods

(1)

A person commits an offence if:

(a)

the person: …

(iii)

imports goods into Australia; and …

(b)

the goods are a prohibited import to which this section applies.

The principles enunciated in Saengsai-Or are therefore only relevant to offences committed prior to 28 September 2004.

In light of the above amendment, it would appear that the provisions of s 5.6(1) of the Code apply to require the Crown to prove intention (as the fault element) by the accused to import goods into Australia.

As to the goods being a prohibited import (being a physical element that consists of a circumstance or a result), s 5.6(2) would require the Crown to prove recklessness as the fault element, that is, that the accused was reckless with respect to that circumstance or result.

In Hann v DPP (Cth) (2004) 144 A Crim R 534, the Supreme Court of South Australia dealt with a charge under s 233BAB(5) of the Customs Act 1901, which relevantly provides:

A person is guilty of an offence against this subsection if:

(a)

the person intentionally imported goods; and

(b)

the goods were tier 2 goods and the person was reckless as to that fact; and

(c)

their importation:

(i)

was prohibited under this Act absolutely; or

(ii)

was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.

The appellant imported four video discs from Bangkok. One of the discs was found to contain child pornography, which are tier 2 goods within the meaning of subs 5(b). The appellant was found guilty of importing prohibited goods and being “reckless to that fact” within the meaning of subs 5.

The appeal was dismissed and the grounds for such dismissal are conveniently set out in the headnote as follows:

(1): In order to establish recklessness under the Criminal Code (Cth), s 5.4, knowledge of a risk of harm or illegality must be established and that risk must be substantial. Conscious awareness of risk is required; it is not sufficient to show that the risk is obvious or well-known.
(2): In order to prove that the appellant was “reckless”, it was necessary for the Crown to establish beyond reasonable doubt that the appellant was aware, at the time of importation, of the substantial risk that the video disc contained child pornography and that it was unjustifiable to take that risk.
(3): It could be concluded beyond reasonable doubt that the appellant was aware that there was a risk that the bundle of four video discs contained child pornography. The risk existed because the appellant made no inquiry as to the content of the discs. He purchased the video discs in an unregulated market from a street vendor in Bangkok. To purchase pornographic material in such circumstances carried the obvious risk that the pornography might be other than adult pornography and might include child pornography. The risk was not remote or fanciful. It was a substantial risk.

Note:: In a helpful comment by Ian Leader-Elliott (a consultant to the Commonwealth Attorney General’s Department) on the above two cases (see (2005) 29 Criminal Law Journal 55), the learned author suggests that it is permissible for courts to make explicit reference to “A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers”, February 2004, when interpreting the Code provisions (see s 15AB of the Acts Interpretation Act 1901 (Cth), “Use of extrinsic material in the interpretation of an Act”). The above guide is available url: <www.ag.gov.au/agd/WWW/agdHome.nsf/Page/Publications_2004_A_guide_to_framing_Commonwealth_offences>.

9	Circumstances involving mistake or ignorance
*9.2*	*Mistake of fact (strict liability)* It was held in Chief Executive Officer of Customs v El Sayed [2003] NSWSC 1092 at [23] that s 9.2 of the Code (mistake of fact (strict liability)): essentially mirrors the common law defence of mistake, and applies when the defendant is under a mistaken but reasonable belief about certain facts which, if true, would render his conduct non-criminal. As is the case under the common law, the defendant bears the onus of proving this defence upon the balance of probabilities.

Circumstances involving mistake or ignorance

9.2

Mistake of fact (strict liability)

It was held in Chief Executive Officer of Customs v El Sayed [2003] NSWSC 1092 at [23] that s 9.2 of the Code (mistake of fact (strict liability)):

essentially mirrors the common law defence of mistake, and applies when the defendant is under a mistaken but reasonable belief about certain facts which, if true, would render his conduct non-criminal. As is the case under the common law, the defendant bears the onus of proving this defence upon the balance of probabilities.

11	Part 2.4 — Extensions of criminal responsibility
*11.2*	*Complicity and Common Purpose* In R v Salcedo [2004] NSWCCA 430 at [26] the Crown conceded that s 11.2 of the Code did not allow for the common law doctrine of joint criminal enterprise.
*11.3*	*Innocent Agency* A recent case involving innocent agency in relation to an offence under the Customs Act 1901, s 233B(1)(b), is R v Kaldor (2004) 150 A Crim R 271 at [28]–[44].

Part 2.4 — Extensions of criminal responsibility

11.2

Complicity and Common Purpose

In R v Salcedo [2004] NSWCCA 430 at [26] the Crown conceded that s 11.2 of the Code did not allow for the common law doctrine of joint criminal enterprise.

11.3

Innocent Agency

A recent case involving innocent agency in relation to an offence under the Customs Act 1901, s 233B(1)(b), is R v Kaldor (2004) 150 A Crim R 271 at [28]–[44].