5.6 Offences that do not specify fault elements

Section 5.6 is the central switchpoint in the Code scheme of fault provisions. The general effect of the section can be quickly sketched. If the statute creating an offence makes no reference to fault when specifying a physical element of the offence, Chapter 2 requires the prosecution to prove intention or recklessness with respect to that physical element. There is, in other words, a presumption that the offence requires proof of one or other of these varieties of fault. (The question of which of those fault elements must be proved - intention or recklessness - can be deferred for the moment while the remaining details of the scheme are sketched.)

The presumption that the prosecution must prove intention or recklessness will be displaced if the legislature specifies the variety of fault required for  the offence. It will also be displaced by a provision which imposes strict or absolute liability with respect to a particular physical element of the offence. Since the provisions in s5.6 apply when legislation is silent on the issue of fault, they are commonly described as “default” provisions. That description is slightly misleading, suggesting as it does that s5.6 is there to rectify legislative oversights.  In practice, omission to make specific reference to  fault elements is often a result of conscious reliance on s5.6 by the drafter.¹⁰⁶

The rule that specification of a fault element “for” conduct will bar the application of s5.6 raises an issue of interpretation. A significant number of Commonwealth offences prohibit conduct undertaken with the intention of achieving some further objective. Examples include offences requiring proof of an “ulterior intention”: discussed 5.2-D. So, for example, 131.1 Theft requires proof of an appropriation of property belonging to another “with the intention of permanently depriving the other of the property”.  Does such an offence specify  a fault element “for” the conduct of appropriation? Offences of ulterior intention almost invariably take the form of a prohibition against engaging in conduct with the intention of achieving some specified objective. The offence of incitement in s11.4, which requires proof that the offender urged the commission of a crime coupled with proof of an intention that the crime be committed, is an exception more apparent than real. The requirement that the offender urge the commission of the offence with the

intention that the offence be committed is implicit in the offence of incitement. Do these offences specify  a fault element for the conduct in question? Is the intent to deprive permanently a fault element “for” appropriation in 131.1 Theft or obtaining in 134.1 Obtaining property by deception? Two considerations compel the conclusion that the ulterior intention is a fault element “for” conduct. The first is the clear implication in Part 2.2 of Chapter 2 that fault elements cannot exist in isolation: a fault element is, necessarily, a fault element for a physical element. The second is the requirement which is almost always expressed in these offences of conduct done or permitted with the specified ulterior intention.  It  follows  that s5.6(1)  has no application in these offences. It is displaced because an offence of ulterior intention does “specify a fault element for a physical element which consists only of conduct”.

Section 5.6 has no application to “exceptions, exemptions, excuses,  qualifications or justifications provided by the law creating the offence”.¹⁰⁸ Nor does it apply to defences in Part 2.3 – Circumstancesinwhichthereisnocriminalliability. The Code distinguishes the elements of the offences from defences and exceptions which are collectively designated by the term “matters” which go to liability.¹⁰⁹ The question whether a particular requirement for guilt is an element on the one hand or a matter of defence or exception on the other can involve difficult issues of interpretation. Those issues are discussed at greater length in the commentary on Part 2.6 – Proof of Criminal Responsibility. For present purposes it is sufficient to say that the difference between elements and defences or exceptions depends on  the incidence of the evidential burden of proof. In summary:

Fault elements can only apply to physical elements of offences:

3.1 Elements; 5.1 Fault elements.

1. It follows that s5.6 can only apply to physical elements of an offence: it has no application to defences or exceptions. The prosecution bears the legal and evidential burdens of proof of both physical elements and any fault elements supplied by s5.6: 13.1 Legal burden of proof-prosecution;
2. When a matter of defence or exception is in issue, the defendant bears the evidential burden: 13.3 Evidential burden of proof-defence.
3. Matters on which the defendant bears an evidential burden are not elements of an offence: See s13.1(1) and (2), distinguishing between “elements” and “matters”. So also, s13.3 Evidential burden of proof – defence.

The application of s5.6, with its consequential requirement that the prosecution must prove fault, depends in this way on provisions which determine the incidence of the burden of proof.

There is a significant conceptual divide between ss5.6(1) and ss5.6(2). The first subsection is concerned with conduct - acts, omissions and states of affairs. In the absence of legislative provision, ss5.6(1) requires the prosecution to prove that the conduct was intentional. The second subsection is concerned with the results of conduct and accompanying circumstances. When the second subsection applies, the prosecution must prove recklessness with respect to incriminating circumstances or consequences. As a consequence of this division, it is necessary to determine whether a physical element is a circumstance, a result or an act before s5.6 can apply. In the discussion  which follows, this is called the “characterisation” issue or problem.

It is necessary to be clear from the outset that there is nothing in the Code to require a court to limit the meaning of the word “act” to a mere physical movement.¹¹⁰ Many prohibitions proscribe complex acts.  If it is an offence to sign a cheque in circumstances where the account is empty, signing a cheque is the act done by the offender. Nothing in the Code requires a court to dissect the act of signing a cheque into a catalogue of physical movements, consequences of those movements and circumstances in which they occur. The prohibitions of the Code make full use of the resources of ordinary language in proscribing complex activities.

The operation of the provision is more easily explained with the aid of a simplified version of offences in Chapter 7, Division 136 – Falseor misleading statements in applications. As one might expect, Commonwealth criminal law contains a number of offences imposing liability on those who give false information to government agencies. The example that follows involves simplified versions of two of these offences.¹¹¹ Suppose the Commonwealth government were to enact a simple prohibition in the following form: A person is guilty of an offence if the person makes a false statement to a Commonwealth public official in an application for a licence. No fault elements are specified for this string of physical elements. Section 5.6 accordingly applies and the physical elements of the offence must be characterised in order to determine whether intention or recklessness is required for each of these elements.

But it is utterly unlikely that the prohibition would take this form. The legislature would be expected to displace most of the applications of s5.6 by specific provisions dealing with fault. To begin with an obvious point, there is no reason to make the prosecution prove that an offender appreciated the distinction between a State and Commonwealth officer as an element of the offence. So long as the offender was reckless with respect to the risk that the person was a government official, whether state or federal, that should be sufficient for conviction. It is appropriate to impose absolute liability with respect to the merely jurisdictional requirement that the false statement is made to a Commonwealth official. Other refinements are possible. Perhaps the prohibition should be more responsive to degrees of wrongdoing. The legislature might choose (as it did in reality) a more discriminating form of prohibition – one that will distinguish between a more serious offence for those who know they are peddling untruths and a lesser offence for those who are merely reckless with respect to the risk. If the simple prohibition is refined in this way and divided into two offences, the physical elements required for liability have to be dissected. Fault elements or absolute liability must be specified for those elements of the offence that are not to be subject to the presumptions of s5.6.

The interpretive process required by s5.6 is analogous to that which was meant to occur in the application of s23 of the Griffith Code, adopted in Queensland and Western Australia. Though the analogy can be drawn, it is one that is likely to result in confusion rather than illumination if any attempt is made to transfer particular decisions from one context to another. The jurisprudence of s23 of the Griffith Code is not distinguished for its clarity or ease of application. Despite superficial similarities, s5.6 of the Code serves very different purposes from those originally intended for s23.¹¹³ Moreover the statutory contexts of application are very different: s5.6 of the Code is embedded in a far more articulate code of general principles than s.23 of the Griffith Code.

Since there are differences in the way s5.6 applies to acts, omissions and states of affairs, it is necessary to deal with each of them separately.  There  are two distinct contexts of application for the rule. Both are familiar in  their common law applications. Conduct is to be distinguished from circumstances and conduct is to be distinguished from its results. The distinction between conduct, circumstances and results may be more or less strongly marked in the formulation of the criminal offence.

Act and Circumstance: It is almost always possible to draw a distinction between an act and its accompanying circumstances,  if one is minded to do so. The “intractable difficulties” (see box) encountered in common law characterisation are reduced though not entirely eliminated in the federal criminal law. In many offences, act and circumstance are distinguished and a fault element is specified for the circumstance. So, for example, in s136.1 False or misleading statements in applications, there are two offences which proscribe the act of making a statement in an application when accompanied by the circumstance that the statement is misleading. As a consequence of s5.6(1), each offence requires proof that the offender intended to make a statement in an application - a requirement which is unlikely to prove onerous in practice. Recourse to s5.6(2) is unnecessary, in this instance, since specific provisions is made for fault relating to the incriminating circumstance. The more serious of the two offences requires proof that the offender knew the statement to be misleading; the less serious requires proof of recklessness. The s5.6(1) requirement of proof of intention with respect to acts   will have more demanding applications in the following offences:

CC 147.2 Threatening to cause harm to a Commonwealth public official: The act which is proscribed is one of mak(ing) a threat to cause…harm to…(a)…person. Section 5.6(1), coupled with s5.2(1), requires proof that the offender meant to threaten another person. It is not sufficient to establish that a defendant realised that another person might feel threatened by conduct or even that they realised that the other would certainly feel threatened.  If the conduct was  not meant to bear the character of a threat, it will not fall within the prohibition. The structure of the prohibition makes it abundantly clear that the status of the person threatened is a circumstantial element of the offence.

CC 132.8 – Dishonest taking or retention of property: A person who “dishonestly takes…property belonging to a Commonwealth entity”, without consent, is guilty of an offence if the property is worth more than $500 or if the deprivation would cause substantial disruption to Commonwealth activities.  The offence is obviously meant  to catch the dishonest “borrower” who cannot be convicted of theft because there is no intention to cause permanent deprivation. The requirements of taking without consent, property in excess of $500 and likelihood of substantial disruption are all clearly circumstantial elements of the offence. Fault is not specified, so s5.6(2) requires proof of recklessness with respect to these elements. It is equally obvious that s5.6(1) requires proof that the act of “taking property” was intentional, in the sense that the person meant to take property. But does the requirement that the property “belong to a Commonwealth entity” count as circumstance or as a part of the offender’s act? An offence which requires proof that the offender meant to take Commonwealth property is narrower in its coverage than one which counts the ownership of the property as a mere circumstantial element of the offence. On the latter interpretation, s5.6(2) applies and the task of the prosecution is considerably lightened since it is sufficient to prove recklessness with respect to ownership of the property.

It is likely that a court would conclude, in this instance, that the conduct element of the offence does not extend beyond taking property and the fact that it is Commonwealth property which is taken is a “circumstance in which conduct occurs”: 4.1 Physical elements.

THE “INTRACTABLE DIFFICULTIES” OF CHARACTERISING ACT AND CIRCUMSTANCE AT COMMON LAW: DRUG TRAFFICKING AND RAPE

In He Kaw Teh,¹¹⁴ Brennan J referred to the “intractable difficulties” involved in distinguishing between acts and circumstances in common law interpretation of statutory prohibitions. His extended consideration of the issues involved in that case provided the basis for the central provisions in the Code on criminal responsibility. Section 233B(1)(b) of the Commonwealth Customs Act 1900 declares that any person who “imports…into Australia any prohibited imports…shall be guilty of an offence.” He Kaw Teh brought several kilograms of heroin into Australia in a false bottomed suitcase. The question at issue before the High Court was whether s233B(1)(b) required proof that he knew that there was heroin in the suitcase. For Brennan J, the first step was to determine whether the legislature had proscribed an act accompanied by a circumstance (import a substance (act) + (circumstance) substance being heroin) or the act of importing heroin. He concluded that importing heroin could not be split into  act + circumstance: “the character of the act involved in the offence depends on the nature of the object imported”. It followed, in his view, that the prosecution must prove that He Kaw Teh intended “to do the whole act that it is prohibited”.¹¹⁵

In a surprising and extended analogy, Brennan J went on to speculate on the question whether absence of consent in rape was an essential   or integral part of the act proscribed or a circumstance accompanying the act of intercourse. He suggested that the offence might be characterised as a proscription of an act of intercourse, when accompanied by the circumstance that consent was not given for the act. If it were characterised in that way, a court applying the common law might conclude that wise social policy required it to impose strict liability with respect to the circumstance. If, on the other hand, the offence were to be characterised as a prohibition of an indivisible act of intercourse without consent, it would follow that the prosecution must prove that the accused intended intercourse withoutconsent. Brennan J left the characterisation issue unresolved.

Though the judgement provides essential background for an understanding of the structure of the fault elements in Chapter 2, there are significant differences between Chapter 2 and the common law which dissipate the “intractable difficulties” which Brennan J described. In particular:

Chapter 2 makes the distinction between intention and recklessness explicit.  Brennan J characteristically merges them in his judgement;

Imposition of strict or absolute liability no longer requires courts to divine legislative intention. These forms of liability will only be imposed when they are specified in the legislation which creates the offence: Ch 2, Division 6 - Cases where fault elements are not required.

And, finally, the stakes are lower. When characterisation of acts and circumstances - or acts and results - is necessary under the Code, the question at issue is whether s5.6(1) (intention) or s5.6(2) (recklessness) applies. This is a circumscribed choice between two varieties of advertent fault. It does not involve the significant policy choice faced by the High Court in He Kaw Teh, between liability without fault and liability for recklessness.

Act and result: Characterisation of acts and results is inherently less problematic than characterisation of acts and circumstances. That is a consequence, in part, of the comparative rarity of criminal prohibitions against causing harm. Once outside the familiar territories occupied by offences involving injury to persons or property, imposition of criminal liability for causing harm is not common. Most criminal prohibitions are directed against activities which are considered harmful in themselves, activities which are intended to cause harm and activities which involve a risk of harm. In offences which do require proof of harm, prohibitions typically impose liability on an individual if their “conduct causes…harm”. This is the pattern followed in Division 71 – Offences against United Nations and associated personnel, which sets out a familiar range of offences against the person. Other offences avoid the reference to “conduct” and simply impose liability on offenders who “cause a loss…[or]…risk of loss”¹¹⁶ There is no essential difference between the formulations. In  these offences, liability requires proof of an intentional act which results in injury, damage or loss. That is a necessary but not a sufficient condition for liability.  Liability for the result of that  act requires proof of fault with respect to that result, unless the offence is one of strict or absolute liability.¹¹⁷   Any intentional   act or omission which substantially contributes to the proscribed result will do, so long as fault requirements with respect to the result are satisfied.  Both of the s5.6 presumptions are likely to   be engaged in such a case:

These two requirements are necessarily linked in a single inquiry. To prove recklessness with respect to a result, the prosecution must prove that the defendant was aware of a substantial risk   that their act or omission would cause that result. One cannot determine what risks might have been realised by the defendant unless one first determines what the defendant did or omitted, and with what intention.¹¹⁸

So, for example, liability for an offence of causing injury recklessly in a case involving a gunshot wound may require a court to go back in time, tracing events in a causal regression, in order to  find an intentional act which could provide a basis for liability.    If the gunshot wound was not inflicted intentionally;¹¹⁹ it may have resulted from a shot fired intentionally but meant to threaten rather than hit.  If that possibility is closed the case may be one  in which injury resulted from an intentional act of pointing the gun.¹²⁰ The South Australian Court of Criminal Appeal approached the limits of causal regression in Hoskin¹²¹ when it accepted that injury to the victim resulted from her assailant’s intentional act of tugging at the stock of a sawn off shotgun in an attempt to extricate it from the waistband of his trousers. The court remarked that none of the offender’s earlier acts of buying the gun, sawing off the barrel and stock and concealing what remained of it in his trouser leg could be said to have caused injury to his victims. The only limit on the search for an intentional act that will provide the basis for guilt is that it must be an act which can be said to have caused the harm.

COMMON LAW CHARACTERISATION OF ACT AND RESULT

Section 5.6 of the Code provides a statutory formulation of common law interpretive practice in construing statutory offences of causing harm. Common law practice is exemplified in Nuri.¹²² The defendant struggled with a police officer after he was arrested for burglary. He attempted to seize the officer’s loaded revolver from its holster. He  had hold of the gun with both hands. The officer, who also held the gun with both hands, managed to keep it in its holster. He tried to keep one hand over the trigger guard to prevent an accidental discharge. A passing taxidriver and a second police officer eventually subdued Nuri who was charged under s22 of the Victorian Crimes Act 1958 with recklessly endangering life.¹²³ On these facts, it was highly unlikely that the prosecution could establish that the defendant’s act  of seizing the officer’s revolver was done with the intention of causing death or serious injury. The Court of Criminal Appeal distinguished the fault elements required to establish guilt on these facts:

If the struggle for possession of the revolver had resulted in injury or death, the same two step analysis would be necessary in order to determine whether the defendant was guilty of murder or recklessly causing serious harm The same analysis applies whether the offence in question requires proof of intention, knowledge, recklessness or negligence with respect to the result.   It is worth emphasis that the Code assumes that liability for negligence will always require proof of some intentional act (or omission) on the part of the offender. Displacement of that assumption requires specific provision.

5.6(1) requires proof of an intentional act or omission which causes the proscribed result;

5.6(2) requires recklessness with respect to the proscribed result.

intention with respect to the act of attempting to wrest control of a loaded gun from the officer;

recklessness with respect to the risk that the death might result from the defendant’s act of seizing the revolver and attempting to wrest it from the officer.¹²⁴

Legislation imposing a duty may limit liability for a breach to the case of intentional omission. Part 5 of the Commonwealth Trade Practices Act 1974, which forbids misleading or deceptive conduct in trade or commerce makes special provision for omissions. Deception may be accomplished by “refraining, otherwise than inadvertently”¹²⁵ from providing truthful information. That provision merely articulates the s.5.6(1) requirement of intention. Frequently, however, legislatures will seek to impose liability for inadvertent omissions.  Since s5.6(1) applies when legislation is silent on  the issue of fault requiring proof of recklessness, specific provision must be made to impose liability for inadvertence.

Offences which impose liability for a state of affairs relating to the offender are not uncommon. The defining feature of these offences is that liability is imposed on a person for being in a forbidden state or being in a forbidden relationship to a thing or person. Possession offences provide the most familiar examples.¹²⁶ Crimes of being in possession of a thing, with or without some further intention, are ubiquitous in federal, state and territorial law. The Code offence in 132.7 Going equipped for theft or a property offence, is typical of many which base liability on an ulterior intention coupled with possession of some unspecified object.¹²⁷ So  far as the physical element of  the offences is concerned, possession of any article at all is sufficient. In offences of this kind, where guilt depends on the intended use of the object, s5.6(1) adds nothing to the fault requirements specified in the offence. The section is likely to have its primary field of application in the case of offences in which penalties are imposed for possession of a thing, without any requirement of ulterior intention as to its use.

Prior to the enactment of the Code, courts were frequently required to determine whether an inscrutable prohibition of possession required proof   of fault.

The Code requirement of intention, as a presumptive fault element for conduct, bars liability for unwitting possession, in the absence of legislative provision to the contrary.¹²⁸ The problem of characterisation, encountered when liability is based on an act or omission, is unlikely to arise in offences which prohibit a state of affairs. Human behaviour can usually be dissected and analysed in various configurations of act, omission, circumstance and result but a “state of affairs” appears to be a unitary conception. If the legislature has specified a state of affairs and imposed criminal liability on a person by virtue of their relationship to that state of affairs, each of the factors which go to make up the state of affairs is equally essential, equally integral to its existence. Suppose a legislature  prohibits possession of a bird of a protected species. In the absence of any provision which excludes s5.6(1), the offence would be taken to require proof that the offender intended to possess a bird of that species. Of course it is possible to make an explicit distinction between the state of affairs and an accompanying circumstance. So, for example, a legislature might create a special offence of being in possession of stolen property. This notional offence might distinguish two physical elements of the offence: (a) the state of affairs of being in possession of property and (b) the circumstance that the property was stolen.  Once   the distinction is made, the fault elements for act and circumstance must be distinguished. In the absence of specific provisions which exclude fault, s5.6(2) requires proof of recklessness with respect to the circumstance.

INTENTION, POSSESSION AND STRICT LIABILITY FOR A STATE OF AFFAIRS AT COMMON LAW

Section 233B(1)(c) of the Commonwealth Customs Act 1901 imposes liability on a person who “has in his possession…any prohibited imports”. In He Kaw Teh (1985) 15 A Crim R 203 a majority of the High Court accepted the view that a conviction for possession of a prohibited object requires proof of an intention to exercise control over the object. The prosecution was required to prove that He Kaw Teh knew there was something in the false bottom of his suitcase. The Court divided, however, on the further question whether the prosecution was required to prove that He Kaw Teh knew that the object in the concealed compartment was a narcotic drug.¹²⁹ The question whether guilt required proof of knowledge of the nature of the substance was never resolved.  For  some members of the court,  the possession offence in s233B(1)(c) required fault with respect to  the existence of the thing, but imposed strict liability with respect to its nature. If this was the correct view of the offence, a courier who brought heroin into Australia in a false bottomed suitcase, in the mistaken belief that the false compartment contained some other kind of contraband - watches, weapons or whisky - would be guilty under s233B(1)(c) of possessing heroin. Since the courier was bent on committing another offence, the mistaken belief, however reasonable, would not bar conviction for possession of heroin.

The Code would resolve this impasse by requiring the legislature to make an explicit choice to impose liability without fault, if that is the preferred policy.  In the absence of specific provision imposing strict  or absolute liability, s5.6(1) requires proof that the offender knew the nature of the substance, before conviction for possession.

Though s5.6(2) creates a statutory presumption requiring proof of recklessness with respect to circumstances and results, many federal offences make the fault requirements explicit in their formulation of the requirements for liability.  This is particularly apparent in Code offences like those in Ch  7, Part 7.2 - Theft and other property offences. Many require proof of “knowledge or belief “ with respect to circumstantial elements of the offence. Section 132.1 Receiving, is typical: the offence is committed when the offender “dishonestly receives stolen property, knowing or believing the property to be stolen”. There are occasional instances on reliance on the presumption in the Code,¹³⁰ but the majority of offences make explicit distinctions between acts and circumstantial elements and specify fault elements, so excluding the application of s5.6(2). Among federal offences outside the Code, specification of fault elements may be less common, so increasing the number of occasions when recourse to s5.6 is necessary.

In most Code offences which impose liability for causing harm, resort to s5.6(2) is unnecessary as fault elements for the offences have been specified. The provisions in CC - Division 71 - Offences against United Nations and associated personnel and Ch 7 - Division 147 Causing harm to Commonwealth officials are typical.  The concluding comment to the preceding paragraph   is equally appropriate here.  Federal offences outside the Code may rely  more heavily on s5.6(2) to supply the missing fault element for the incriminating result.

This rule, which forms part of the s5.4 definition of recklessness, simply expresses the principle that the more serious forms of criminal fault include the less serious. In an offence requiring a fault element of recklessness, as a consequence of specific provision or statutory implication from s5.6(2), proof that the defendant intended the result or knew that it would certainly occur, displaces the need to prove recklessness. It follows that the question whether the conduct was justified will not arise, if the result was known for certain or intended. There will remain, of course, the possibility of reliance on one of the defences in Ch2: Part 2.3 - Circumstances in which there is no criminal responsibility.

106. Consider, for example, CC s477.3 Unauthorised impairment of electronic communication. The physical elements of the offence include an act which causes unauthorised impairment of electronic communica- tions. Though the provision requires proof of knowledge that impairment is unauthorised, no fault element is specified for either the act which causes impairment or the impairment itself. Section 5.6 accordingly requires proof of an intentional act (ss1) coupled with recklessness as to the risk of impairment (ss2).

107. <blank>

108. See Ch 2, Part 2.6 - Proof of Criminal Responsibility, s13.3(3). 109 Ibid.

109. <blank>

110. Compare Robinson & Grall, “Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond” (1983) 35 Stanford LR 682, 719-725, who argue that this atomistic conception of human action should be accepted as a central interpretive presumption in their proposals for a reconstruction of the Model Penal Code, ALI 1962. The objection to the Robinson & Grall program is the extreme technicality which it can produce in the interpretation of offences. There are significant differences between Part 2.2 – The elements of an offence and corresponding provisions in the Model Penal Code which justify a different and less technical approach to interpretation.

111. Ch 7, Division 136 – False or misleading statements in applications.

112. It is open to argument, in a prohibition of this nature, that the ‘act’ of making a false statement is, in reality, an ‘act’ of making a statement, coupled with the ‘circumstance’ that the statement is false. The issue arises in common law statutory interpretation, no less than it does under the Code. See, for example, He KawTeh(1985) 15 A Crim R 203, 256 per Brennan J, who characterises ‘importing narcotic goods into Australia’ as an act, rather than an ‘act’ of importing goods, coupled with a ‘circumstance’ – goods are narcotic. Compare Robinson & Grall, “Element Analysis in Criminal Liability: The Model Penal Code and Beyond” (1983) 35 Stanford LR 681, 719ff, who present a strong case in favour of narrowing the meaning of ‘act’ to bodily movements and the like. So also, P Robinson, Structure and Function in Criminal Law (1997) 25-7. Their proposals have not found strong support in UK or Australian conventions of legislative interpretation. Compare Glanville Williams, Textbook of Criminal Law (2ed) 77. Legislative grammar and layout, coupled with commonsense, provide the best guides in practice. If the legislature has not chosen to distinguish between the making of the statement and the fact that the statement is false it is unneces- sary, in the absence of any implied legislative intention or policy, to divide the act of making a false statement into two distinct physical elements of act and circumstance.

113. The two most significant differences, for present purposes are: (a) Section 23 of the Queensland Criminal Code determines the borderline between offences which require proof of advertent fault and offences of strict liability with respect to a circumstantial or result element: Section 5.6 determines the borderline between offences which require proof of intention and offences which require proof of recklessness with respect to the circumstantial or result element; (b) Section 23 of the Queensland Criminal Code is said to have no application to offences requiring proof of negligence: Section 5.6 applies to offences which require proof of negligence in the absence of contrary legislative provision. In particular, s5.6(1) presumes that negligence as to circumstances or results requires proof of an intentional act or omission.

114. He Kaw Teh (1985) 15 A Crim R 203, 238.

115. Ibid 247. The quotation is taken from the dissenting judgement of Dixon CJ in Reynhoudt (1962) 107 CLR 381. The conclusion that the prosecution must prove intention with respect to the act proscribed is based on the strongest of the three mens rea presumptions which Brennan J discovered in com- mon law interpretive practice: ibid, 246. Strictly speaking, the analysis in terms of act and circum- stance was unnecessary. Had Brennan J not concluded that the nature of the substance imported to be essential to the character of the act prohibited, he would still have held that the prosecution must prove that He Kaw Teh knew that the suitcase contained heroin: ibid 248.

116. CC 135.1 General dishonesty s135.1(5) and 474.1 General dishonesty with respect to a carriage provider, s474.1(3).

117. Offences of dangerous driving causing death or injury in existing state and territorial legislation typically imposes strict liability for fatal or injurious consequences. See Jiminez (1992) 59 A Crim R 1, discussed Leader-Elliott, “Cases in the High Court: Jiminez” ((1993) 17 Crim LJ 62.

118. So also when legislation displaces s5.6(2) and requires proof of negligence with respect to a result. D is negligent if that intentional act (or omission) involved a “great falling short in the standard of care…&c”: 5.5 Negligence.

119. Of course, proof that the victim was shot intentionally would more than satisfy a requirement of reckless injury: s5.4(3).

120. Cases which discuss liability for injury or death resulting from pointing a gun or knife include: Ryan (1967) 121 CLR 205; Demerian (1988) 33 A Crim R 44, 454-456; Hind & Harwood (1995) 80 A Crim R 105: Ainsworth (1994) 76 A Crim R 127; Bollen (1999) 99 A Crim R 510; Fitzgerald [1999] QC 109. For a dissenting view, see “Case & Comment, Fitzgerald”: (2000) 24 Crim LJ 383.

121. (1974) 9 SASR 531.

122. (1989) 49 A Crim R 253

123. The offence is virtually identical to those in MCC - Ch5: Offences Against the Person, s5.1.25

124. Accord, Hoskin (1974) 9 SASR 531.

125. Trade Practices Act 1974 (Cth) s4(2).

126. He Kaw Teh (1985) 15 A Crim R 203, 233 per Brennan J: “Having something in possession is not easily seen as an act or omission; it is more easily seen as a state of affairs”.

127. For other examples, see MCC Ch4: Damage and Computer Offences, ss4.1.10 and summary of- fences in Part 4.2, Computer Offences.

128. The fault element appropriate to possession is intention, rather than knowledge. See, for example, the decision in the High Court in Saad (1987) 29 A Crim R 20. Of course, an intention to possess an object of type A is often inferred from the fact that the defendant was in control of the object and knew that it was a type A object. It does not follow, however, that the fault element is really knowledge. For it is also possible to infer an intention to possess an object of type A from the fact that the defendant was in control of the object and believed it possible that it was an object of type A. Consider the case of the amateur drug chemist who succeeds, against the odds, in manufacturing amphetamines. The chemist possesses the drug intentionally, as soon as manufacture is complete, though at that point utterly uncertain whether or not the experiment succeeded.

      

129. He Kaw Teh (1985) 15 A Crim R 203 at 213,218 per Gibbs CJ, with whom Mason J agreed, (unnec- essary to decide); at 248-251 per Brennan J (prosecution must prove that D knew the substance to be a narcotic drug); at 260-261 per Dawson J (prosecution is not required to prove that D knew the substance to be a narcotic drug). Wilson J dissented on the issue of possession.

130. See, for example, the minor offences in CC 132.8 Dishonest taking or retention of property, which are limited in their application to property of a certain value or character. Since fault is not specified for these circumstances, s5.6(2) implies a requirement of recklessness. So also in the circumstan- tial elements of the offences in CC 142.1 Corrupting benefits given to, or received by, a Common- wealth public official.