5.2 Intention

The definition commences, in effect, with a declaration that “intention” bears its ordinary meaning. To say that one means to do a thing or meant to do something is, simply,  to say that it is intended or was intended.  They   are dictionary synonyms. 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. In various of his judgements, Brennan J expressed that view.⁵⁶ The effect of this extension is  to blur or obliterate the distinction between intention and recklessness. In Chapter 2, which makes a strong distinction between intention and recklessness, intention bears its ordinary meaning in its applications to conduct. Legalistic extensions of meaning of intention, which will be considered below, only apply to circumstances and results. Take, for example, the Code offence in 270.7 Deceptive recruiting for sexual services. A person who deceives another with the intention of inducing entry into commercial engagement to provide sexual services is guilty of an offence. The physical element in this offence is the offender’s conduct in deceiving the other and that conduct must be intentional in the sense that is meant to deceive.⁵⁷

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.⁵⁸ 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.

INTENTION WITH RESPECT TO CIRCUMSTANCES: DECEPTIVE RECRUITING FOR SEXUAL PURPOSES

The following hypothetical illustrates the effect of s5.2(2). Section 270.7 of the Code makes it an offence, punishable with 7 years imprisonment, to deceive another with intention to induce entry into a commercial engagement to provide sexual services. It is a circumstantial element of the offence that the  engagement  will  in fact involve the provision of sexual services. The defendant, who managed a small employment agency, recruited young men and women for a company which employed them under contract to act as entertainers in overseas nightclubs and other venues. The defendant became aware that the engagements which the recruits entered with the company always involved a demand that the recruit provide sexual services in addition to the entertainment services specified in their contracts. The defendant continued to recruit for the company and deceived recruits about the nature of the services which the company would demand of them. Charged with an offence against s270.7, the defendant denied any intention to induce his victims to enter engagements for sexual services. He argued that his only objective was to earn his fee and that the nature of the services which would be demanded of the recruits was a matter of indifference or mild regret so far as he was concerned. Under the Code, the defendant is taken to intend to induce the other person to enter into an engagement to provide sexual services. Since the defendant believes that the engagement will include the circumstance that sexual services will be demanded, the defendant acts intentionally with respect to that circumstance: 5.2(2). Indifference to the nature of the services which victims will be required to provide is no answer.

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.⁵⁹ 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. Recently, in Woollin,⁶⁰ the House of Lords accepted the view that consequences of conduct are intended if they are known to be certain, whether or not they were meant to occur.⁶¹ In Australia, where the offence of murder has always been more broadly defined,⁶² extending to killing by recklessness, the issue has excited little comment and caselaw provides no determinate guidance on the issue.⁶³ The Code formulation was intended to settle, by stipulation, a dispute over the legal meaning of intention that has continued without resolution for half a century.⁶⁴ Its practical effect on federal law is minimal. There are very few offences in which fault with respect to a result  of conduct is limited to an intention to cause the result which require proof of intention with respect to a “result” of conduct.⁶⁵  Among the few which  are limited in this way⁶⁶ is 71.4 Intentionally causing serious harm to a UN or associated person. Attempts to construct a scenario which will require recourse to s5.2(3) when this offence is in issue are bound to be fanciful. Imagine a terrorist who seeks to destroy UN headquarters by an explosive device. The terrorist knows that anyone inside the building will be killed or seriously injured. The terrorist hides a bomb in the basement and sends a warning message to the occupants. All are evacuated except for security personnel  who remain to search for the device. The terrorist, who knows that some  UN staff remain in the building detonates the device.  Fortunately no-one   is killed⁶⁷ but all are seriously injured.  Though the terrorist might argue   that the bomb was not meant to kill, s5.2(3) attributes intention to injure because the terrorist knew that injury would occur in the ordinary course of events.

Section 5.2 does not purport to provide a complete definition of the concept of intention. It goes no further than a definition of intention with respect to intending the physical elements of an offence - conduct, circumstances and results: 5.1 Fault elements; 5.2 Intention. Some offences require proof of intention to achieve an objective which does not go to any circumstance or result which forms part of the definition of the offence. Ulterior intentions characteristically take the form of a prohibition against engaging in conduct with intention to achieve some further objective. Since every offence requires proof of conduct, the ulterior intention is a fault element “for” conduct: 3.1 Elements; 5.1 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. Liability for the completed offence requires neither deprivation nor the creation of a risk of deprivation. In these offences, the intention with which the offender acts is not an intention “with respect to” a circumstance or result. Offences which require proof of an ulterior intention are not uncommon in Federal criminal law.

In short, the distinguishing feature of ulterior intentions is the requirement of proof of an intention to achieve an objective which is not a physical element of any offence. The objective, whether or not achieved, is neither a result nor a circumstance specified in any offence and it is quite distinct from the conduct which it accompanies.

Since ulterior intentions are not defined in the Code, the meaning of intention in this context is determined by ordinary usage and common law.⁶⁸ It is arguable, though far from certain, that a requirement that the prosecution prove an ulterior intention of this nature is equivalent to a requirement of proof of purpose.⁶⁹ The fact that ulterior intentions are not defined in the Code requires special care in the interpretation of provisions relating to intoxication and corporate criminal liability: see 8.2-C and 12.3-J.

THE INTENTION WITH WHICH THE ACT WAS DONE: THE LIMITS OF THE CODE DEFINITION OF INTENTION

Section 141.1 Bribery of a Commonwealth public official imposes liability on those who give and those who receive bribes. One who provides a benefit to another is guilty if the benefit was provided  “with the intention of influencing a public official…in the exercise of the official’s duties…&c”.  An official who receives a benefit is guilty  if the benefit was received “with the intention” of acceding to that influence or sustaining an expectation that the official would be influenced. It is quite possible to envisage circumstances in which benefits are given with no purpose to exert influence, though it is known that the receiver will be influenced by the provision of the benefit. And it is equally possible to envisage circumstances in which an official receives a benefit, in the knowledge that the other expects  to exert influence, though it was not the official’s purpose to sustain that expectation. Since the requirement of intention in these offences does not relate to their physical elements - results or circumstances – the definition of intention in s5.2 has no application. In particular,  the rule in s5.2(3) that a person is taken to intend consequences which “will occur in the ordinary course of events”, has no application though it may, as noted earlier, provide a “persuasive analogy” (see guidelines above, 5.2 Intention). The question whether proof of the intention with which the benefit was given or received is equivalent   to a requirement of purpose is unsettled.⁷¹

Offences which require proof of an intention which does not relate to the physical elements of an offence are not uncommon. In general, offences are defined in this way because the objective circumstances are ambiguously poised on the margin between conduct which is harmful and conduct which is socially tolerated. It is the offender’s further intention which tips the balance between conduct which is tolerable and conduct which is criminal. In most instances, however, a fault element of intention in the definition of an offence will relate to physical elements of an offence.

55. That may mean that intention extends to include consequences known by the defendant to be certain to follow their conduct. Even though s5.2(3) has no formal application it may provide a persuasive analogy. There is, moreover, common law support for the extended definition of intention in s5.2(3): Woollin [1998] 4 All ER 103, Peters (1998) 96 A Crim R 250, 270-271 (McHugh J).

56. Notably, in He Kaw Teh (1985) 15 A Crim R 203 at 237.

57. Compare Robinson & Grall, “Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond” (1983) 35 Stanford LR 681, 706-708, who would dissect “deceiving” into an act (making a statement) and a result (the other person is deceived).

58. Most notably, in the House of Lords decision in DPP v Morgan [1976] AC 182, where the requirement of intention plays a significant rhetorical role in the reasoning. In recent years, Australian courts and academic comment tend to avoid this particular confusion. The offence of rape is more often analysed as one in which liability is imposed on an offender who was reckless with respect to circumstance that consent to the act of intercourse was absent: see MCC - Ch5: Sexual Offences Against The Person, Division 2 - Sexual acts committed without consent.

59. A resume can be found in Simester & Chan, “Intention Thus Far” [1997] Crim LR 704.

60. [1998] 4 All ER 103. The decision was accepted by a majority of the Court in Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961.

61. For a sample of divergent views on the significance of the case, see JC Smith, “Case & Comment: Woollin” [1998] Crim LR 890; Simester, Murder, Mens Rea, and the House of Lords - Again (1999) 115 LQR 17; Norrie, “After Woollin” (1999) Crim LR 532; Simester & Shute, “Letter to the Editor” [2000] Crim LR 205. Andrew Ashworth, a leading academic theorist of English criminal law, characterises this as the “standard formulation” of intention: see “Criminal Liability in a Medical Context: The Treatment of Good Intentions”, Chapter 8 in AP Simester & ATH Smith, “Harm and Culpability (1996)”.

62. The modern law of reckless murder in Australia stems from Jakac [1961] VR 367. Lord Irvine of Lairg provides a retrospective comparison of English and Australian law on the issue in “Intention, Recklessness and Moral Blameworthiness: Reflections on the English and Australian Law of Crimi- nal Culpability” (2001) 23 Sydney LR 5.

63. In Peters (1998) 96 A Crim R 250, 270-271, McHugh J. provided a rare instance of judicial affirmation of the view that consequences of conduct which are known to be certain are taken to have been intended.

64. See, for example, Glanville Williams discussion of the issue: “Intention also includes foresight of certainty” in Criminal Law: The General Part (1ed 1953) 35ff.

65. Many offences require proof of an intention to achieve a specific objective. As , for example in the string of offences in CC Division 145 – Offences relating to forgery, which forbid a variety of activities if accompanied by an intention to obtain a gain, cause a loss or influence the exercise of public duty or function. Since liability does not require any of these intended outcomes to occur, they are not physical elements of any offence and, hence, not “results” within the meaning of s5.2(3). The definition has no application though it may, as footnote 55 suggests, provide a “persuasive analogy”. See below: 5.2-D.

66. See also the minor cybercrime offences in CC s478.1 Unauthorised access to, or modification of, restricted data; s478.2 Unauthorised impairment of data held on a computer disk etc.

67. Had death occurred, the terrorist would be guilty of murder without the need to have recourse to s5.2(3): CC s71.2 Murderofa UN or associated person does not distinguish between intentional and reckless killers.

68. In the offence of theft, the requirement of “intention to deprive permanently” is the subject of partial statutory definition in 131.10 Intention of permanently depriving a person of property. That partial definition which, incidentally, has no application to 134.l Obtaining property by deception, does not bear on the issue discussed above.

69. Chew(1991-1992) 173 CLR 526. Discussed, Groode and Leader-Elliott, “Criminal Law” in AnAnnualSurvey ofAustralianLaw1992 (edited R Baxt and A Moore) at 199, 242-247. Compare Model Penal Code Proposed Official Draft, American Law Institute 1952, s2.02(2)(a) Purposely: “A person acts purposely…when…it is his conscious object to engage in conduct of that nature or to cause such a result”.

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71. Chew [1991-1992] 173 CLR 626.