5.1 Fault elements

Commonwealth Criminal Code: Guide for practitioners 

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.

Overview

Most Commonwealth offences require proof of one or more fault elements. Offences of strict or absolute liability, which do not require proof of fault, consist of physical elements alone. Though not uncommon, they are usually specialised in their applications and penalties are minor. Chapter 2 defines four fault elements: intention, knowledge, recklessness and negligence. That list of defined fault elements does not exhaust the field of possibilities. Unlike the physical elements, which are exhaustively defined, different and more specialised fault elements than those listed in Chapter 2 are occasionally   used in the definition of federal offences.

The fault elements defined in Chapter 2 displace the nineteenth century vocabulary of malicious or wilful wrongdoing. The articulation of criminal responsibility in terms of the physical elements of conduct, circumstance  and result enables different fault elements to attach to the different physical elements of an offence.48 So, for example, the Chapter 10 offence of unauthorised impairment of electronic communications between computers requires proof of an intentional act which causes the impairment, recklessness as to the risk that the act will cause impairment and knowledge that the impairment is unauthorised. Absolute liability is imposed with respect to the requirement that the communication is one sent to or from a Commonwealth computer or via a telecommunications service.49

Chapter 2 distinguishes sharply between negligence and strict liability, which requires the prosecution to disprove reasonable mistake of fact if there is evidence in support of that defence. Strict liability is specifically categorised as liability without fault: Division 6 – Cases where fault elements are not required. This differentiation of negligence and strict liability adopts the strongly expressed opinion of two members of the High Court in He Kaw Teh.50 Liability for negligence and strict liability are alike, of course, in the fact that neither requires proof that the defendant was aware of the circumstances or likely results of the conduct which gave rise to criminal liability. They are alike, too, in the fact that they have no application to offences unless specific provision is made for their application  by the law creating the offence. That is a consequence of s5.6(2), which sets recklessness as the threshold requirement for liability unless displaced by specific provision to the contrary. To date, sparing use has been made of liability for negligence in offences against federal criminal law.51 In Division 71 – Offences against United Nations and associated personnel and Division 147 Causing harm to Commonwealth public official, liability requires proof of recklessness at least with respect to the harm done to another.52

More specialised fault elements are employed in defining some federal offences. So, for example, the offence of blackmail requires proof of a demand made by a person who acts without an honest and reasonable belief that   they have reasonable grounds for making a demand backed by menaces:

138.1 Unwarranted demand with menaces. Offences involving dishonesty make frequent use of a fault requirement of “knowledge or belief ”, which was derived from the Theft Act 1967 (UK), which provided the legislative model for the Code provisions. Another example can be found in Division  71 – Offences against United Nations and associated personnel where “recklessness” with respect to absence of consent to sexual penetration or contact is given a more extended meaning than its definition in s5.4 of Chapter 2.54

  1. The classic exposition of the virtues of element analysis is Robinson & Grall, “Element Analysis in Defining Criminal Liability: The Model Code and Beyond” (1983) 35 Stanford LR 681. See in addition, P Robinson, “Structure and Function in Criminal Law” (1997).

  2. CC 477.3 Unauthorised impairment of electronic communication.

  3. (1985) 15 A Crim R 203 at 244, per Brennan J; at 253, per Dawson J.

  4. But see, for example, Great Barrier Reef Marine Park Act 1975, s38C Contravening conditions of a permit or authority zoned area (as amended) and the related offences which follow.

  5. Compare MCC - Ch5: Non Fatal Offences Against the Person, ss5.1.16 - Negligently causing serious harm.

  6. The UK origins of the Code provisions on theft and allied offences are discussed in MCC Chapter 3: Theft Fraud, Bribery and Related Offences, Final Report 1995 vi-vii; 1-6. UK caselaw on the fault element of “knowledge or belief” in the offence of handling stolen goods is discussed at greater length below, at 5.3-B.

  7. CC 71.8 Unlawful sexual penetration. The provision derives from MCC - Ch6: Sexual Offences Against the Person, Division 2 - Sexual acts committed without consent, ss5.2.6(3), 5.2.8(3).