5.3 Knowledge

Knowledge is a complex concept and the definition appears to have been intended to restrict its application to instances where the individual was conscious, at the time, of the circumstances or anticipated results of conduct. The definition is clearly intended to deny recourse to the discredited common law concept of “wilful blindness”, which was sometimes taken to be equivalent to knowledge.⁷² It appears to go further, however, imposing a requirement that the offender be aware of the circumstances or results of conduct. Conscious awareness is not usually a necessary element of knowledge. The Code appears to restrict, to some extent, the range of meaning which knowledge has in ordinary usage: no-one is consciously aware, at any given time, of all that they know at that time. Blunders and accidents occur, not infrequently, because information known to the individual was not consciously recalled at the critical moment. There is an evident link, in this respect, between the Chapter 2 concepts of knowledge  and  recklessness, both of which require proof that the offender was aware of circumstances or results or the risk of their existence at the critical moment. The discrepancy between the Code definition of knowledge and ordinary usage of the concept is particularly marked when liability is imposed for omissions and knowledge is the required fault element: discussed 9.3-C.

KNOWLEDGE, RECKLESSNESS AND BEING AWARE OF CIRCUMSTANCES

Offences which require proof of knowledge for conviction are comparatively uncommon.⁷³ The offences of obstruction in  Ch  7, Part 7.8 - Causing harm to, and impersonation and obstruction of, Commonwealth officials, require proof that the offender know that a person who is obstructed is a public official. The Code accordingly requires proof that the offender was aware of circumstances relating  to the official’s status which make the impersonation or obstruction criminal. A requirement that the prosecution prove knowledge is uncompromising in the sense that a person cannot be said to know a circumstance or result unless that person is certain of its existence or eventuality. In cases of obstruction, that is unlikely to cause particular difficulty to the prosecution.⁷⁴ Elsewhere in the Code, the uncompromising demand imposed by a requirement of proof of knowledge is lightened by legislative requirement of “knowledge or recklessness.” s270.6(2) - Sexual servitude offences provides an example. A person who manages or finances a business which involves the subjection of individuals to sexual servitude is guilty of an offence if they knew of the sexual servitude or if they were reckless with respect to that circumstance. The recklessness alternative permits conviction of financiers and others who maintain distance from the enterprise though the nature of the business was not known for a certainty. It remains necessary, however, to establish that the defendant was aware of a substantial risk that the business involves sexual servitude: s5.4(1) - Recklessness. Elsewhere in the Code, use has been made of a hybrid form of fault - “knowledge or belief ”: discussed below 5.3-B.

A number of offences of dishonesty in Ch 7 - The proper administration of Government, make liability depend on proof that the person had knowledge or belief with respect to circumstantial elements of the offence. “Belief ” is not recognised as a fault element in Chapter 2. But it does envisage the possibility that specialised fault elements will be necessary in particular contexts: 3.1 Elements. The offence of receiving stolen property, is a significant instance of use of this hybrid: 132.1 Receiving. The offence is committed if the property was received dishonestly by an offender who knew or believed the property to have been stolen. The formulation was derived from the  Theft Act 1967 (UK), which provided the original model for the Code offences of dishonesty. The significance of the reference to “belief ” is not immediately apparent. The most obvious distinction between knowledge and belief is  that one can believe, but one cannot know, something that is false in fact. The offence does not extend, however, to catch instances of dishonesty where the receiver labours under a mistaken belief that the property was stolen.⁷⁵ That may amount to an attempt to receive, but it is not receiving. It is evident that the word “belief ” was meant to qualify or dilute the uncompromising requirement of knowledge in some other way.⁷⁶ The question whether it does so and the nature of the possible qualification or dilution is the subject of unresolved debate in English texts on theft law.⁷⁷ The concept of belief, like other basic concepts in the Code, preserves its everyday meaning. When existing or projected states of fact are concerned, the difference between knowledge and belief appears to reflect differences in the adequacy of grounds for being sure or certain about the facts. One believes rather than knows that something is so when the evidence is less than conclusive.⁷⁸ There is an element of faith in belief. In the United Kingdom, it was once suggested that the reference to belief was apt to include cases where the receiver merely suspected that goods were stolen and refrained from further inquiry. Courts have consistently rejected the suggestion. As ATH Smith points out, “suspicion differs from belief in that it connotes advertence without any definite conclusion being reached.”⁷⁹ A requirement of belief might be taken to require something less than the degree of conviction required for knowledge, but something more than the pallid substitute of mere suspicion. A passage from the Court of Criminal Appeal decision in Hall⁸⁰ reflects the current state of UK opinion on the shades of difference between knowledge and belief in the offence of receiving:

A man may be said to know that goods are stolen when he is told by someone with first hand knowledge (someone such as the thief or the burglar) that such is the case. Belief, of course,  is something short of knowledge. It may be said to be the state of mind of a person who says to himself: “I cannot say I know for certain that these goods are stolen but there can be no other reasonable conclusion in the light of the circumstances, in the light of all I have heard and seen.”

Sir John Smith, who is critical of this particular attempt to fix the meaning  of “knowledge or belief ” concludes that judicial directions to juries should not attempt to define “belief ”.⁸¹ That conclusion is of small help, of course, in trials without jury. If we put to one side the uncertain guidance provided by UK authorities, consideration of the context in which the fault element  of “knowledge or belief ” is employed in the Code allow some more definite conclusions to be drawn.  First and most significant of all is the fact that   that “knowledge or belief ” is not equivalent to recklessness. Realisation of a substantial risk that something is so does not amount to belief in that state  of things either in ordinary language or in the Code. If liability for these offences was meant to include recklessness, the Code would have said so. We can add to that firm conclusion two speculative suggestions on the meaning of “knowledge” or “belief ”. The first is the possibility that the reference to “belief ” qualifies the requirement that an offender be aware that something is the case. Often we are not consciously aware of our beliefs, even when engaged in activities which manifest reliance on those beliefs - a point recognised in the Code in its definition of the defence of reasonable mistake.⁸² We might infer that a person believed that goods were stolen from their behaviour in much the same way as we infer that a person believes their car will start from their behaviour in turning the ignition and pressing the accelerator. That inference does not entail any speculation concerning the person’s state of conscious awareness of particular facts at any particular point of time. In short, it is not necessary to address the question whether  the defendant was consciously aware of the fact that the goods were stolen. The second speculation arises from the curious overlap between the definition of intention - with respect to circumstances - in s5.2(2) and “knowledge or belief ” about circumstances. One who receives goods knowing or believing them to be stolen can also be said, in the terminology of the Code, to intend to receive stolen goods.

The Code defines dishonesty by reference to the standards of ordinary people. A person is taken to be dishonest if they know their conduct to be dishonest according to those standards: CC s130.3 Dishonesty. The fault element in dishonesty is, accordingly, knowledge.

72. See Lanham, “Wilful Blindness and the Criminal Law” (1985) 9 Crim LJ 261; D Brown, D Farrier, S Egger, L McNamara, Criminal Laws (2001) 383-384. But see B Fisse, Howard’s Criminal Law (1990) 62-63, 278-279, for a defence of constructive knowledge.

73. But see the cybercrime offences in Ch 10 National infrastructure, Part 10.7 – Computer offences, which require proof of knowledge that the impairment of data or other effect in question is not authorised.

74. CC Ch 7, s149.1(3) Obstruction of Commonwealth public officials does not, however, require proof that the “defendant was aware that the public official was performing the official’s functions.”

75. See Haughton v Smith [1975] AC 476, which has never been doubted on this point. Accord, ATH Smith, Property Offences (1994) 30-49. Code s.132.1 Receiving puts the issue beyond doubt, for it requires the property to be stolen.

76. See JC Smith, The Law of Theft (8 ed, 1997) 13-41.

77. See JC Smith, ibid; ATH Smith, Property Offences (1994) 30-49. See also CR Williams & MS Weinberg, Property Offences (1986 2ed) 358-360, 369; compare B Fisse, Howard’s Criminal Law (1990) 278-279

78. The Macquarie Dictionary: “belief” - “conviction of the truth or reality of a thing based upon grounds insufficient to afford positive knowledge”. Compare, however, the Shorter Oxford English Diction- ary, which is puzzlingly different on this point.

79. ATH Smith, Property Offences (1994) 30-52. Accord, JC Smith, The Law of Theft (8 ed, 1997) 13-41.

80. (1985) 81 Crim App R 260, 264. See JC Smith, ibid, and compare ATH Smith, ibid, 30-53.

81. JC Smith, ibid. But see ATH Smith, ibid, who argues that juries should not be left without guidance.

82. 9.2 Mistake of fact (strict liability). The defence is based on the premise that a “mistaken belief” includes beliefs which the individual was not conscious of holding at the time the offence took place.