ELEMENTS OF CRIMINAL LIABILITY, PRINCIPLES OF PUNISHMENT, STRICT LIABILITY & ATTEMPT

ELEMENTS OF CRIMINAL LIABILITY

BURDENS OF PROOF

In criminal law, punishment is imposed for specific kinds of

wrongdoing which are described and announced in advance.
The CCA sets out the general principles of criminal liability.
It applies only to crimes against Commonwealth law.
It has no direct application when an offence against
South Australian law is charged.
S3.1(1) CCA: An offence consists of physical elements and
fault elements.
S3.1(2) CCA: However the law that creates the offence may
provide that there is no fault element for one or more
physical elements. (ie. Strict/absolute liability offences)
Physical elements
S4.1(1) CCA: A physical element of an offence may be
conduct, a circumstance in which conduct occurs, or a
result of conduct.
S4.1(2) CCA: Conduct means an act, an omission to
perform an act, or a state of affairs.
S4.2(1) CCA: Conduct can only be a physical element
if it is voluntary.
S4.2(2) CCA: Conduct is only voluntary if it is a
product of the will of the person whose conduct it is.
(ie. He had, at the relevant time, the ability to
control his conduct)
Fault elements
Intention
S5.2(1) CCA: A person intends conduct if he means
to engage in it.
S5.2(2) CCA: A person intends a circumstance if he
believes that it exists or will exist.
S5.2(3) CCA: A person intends a result if he means
to cause it or is aware that it will occur in the
ordinary course of events.
Knowledge
S5.3 CCA: A person has knowledge of a
circumstance or result if he is aware that it exists or
will exist in the ordinary course of events.
Belief
Same as knowledge, but doesnt require certainty
and includes mistakes.
Recklessness
S5.4(1)&(2) CCA: A person is reckless if he is aware
of a substantial risk that (1) the circumstance exists
or will exist, or (2) the result will occur; and having
regard to his knowledge, it is unjustifiable to take
the risk.
Negligence
S5.5 CCA: A person is negligent if (i) his conduct
involves such a great falling short of the standard of
care that a reasonable person would exercise in the
circumstances (Nydam), and (ii) there is such a high
risk that the physical element exists or will exist,
and (iii) the conduct merits criminal punishment.

Presumption of innocence: The prosecution must prove guilt

beyond reasonable doubt to convict the accused, subject to
the defence of insanity and statutory exception (Woolmington
v DPP).
Burdens of proof
The prosecution bears both the evidential and persuasive
burdens of proving all elements of the crime.
In relation to defences, the defendant bears the evidential
burden (of proving any defences) while the prosecution
bears the persuasive burden (of disproving them).
Statutes sometimes shift the persuasive burden on
defences to the defendant.
Standard of proof
Where the persuasive burden is placed on the
prosecution, the prosecution must persuade the jury
beyond reasonable doubt.
Where the persuasive burden is placed on the accused,
the accused must persuade the jury on the balance of
probabilities (Colle).
PRINCIPLES OF PUNISHMENT
The sentence can be based on:
facts that established the finding of guilt
personal characteristics of the offender
age, character, prior crimes, employment record,
marital status, health
any relevant acts and circumstances
remorse, plea of guilt, assistance to police,
forgiveness by the victim
Sentencing facts that would aggravate the punishment must
be proven beyond reasonable doubt by the prosecution
(Isaacs).
Sentencing facts that would mitigate the punishment need
only be proven on the balance of probabilities.
Veen (No 2): Common law limits the severity of punishment
to a penalty which is proportionate to the offenders crime.
The court may impose a punishment that is less than
proportionate, by reference to factors personal to the
offender.
Julian Man: A mentally ill offender is unlikely to be deterred
by punishment and does not provide an appropriate medium
for making an example to others sentence substantially
less than the usual penalty.
Legislation permits detention of those who suffer from
dangerous, infectious diseases or mental illnesses for periods
that are beyond the proportionate period.
Criminal Law (Sentencing) Act 1988, Division 3: Courts can
impose an additional sentence of indeterminate detention on
habitual offenders.
Proof of 2 or more prior convictions is usually required
before the offender can be sentenced to this additional
period of detention.
Medcraft: Conduct of an offence that D isnt convicted of,
should not affect sentencing for another offence that D is
convicted of.
Inkson: Factors that dont affect Ds sentence include:
Death that D didnt cause;
Victims character; or

ELEMENTS OF CRIMINAL LIABILITY, PRINCIPLES OF PUNISHMENT, STRICT LIABILITY & ATTEMPT

Actual community response to the case.

ELEMENTS OF CRIMINAL LIABILITY, PRINCIPLES OF PUNISHMENT, STRICT LIABILITY & ATTEMPT

STRICT & ABSOLUTE LIABILITY
Strict liability offences do not require the prosecutor to prove
fault elements for one or more of the physical elements of the
offence, and the defence of reasonable mistake of fact is available
(unlike absolute liability).
He Kaw Teh v R:
There is a strong common law presumption that all offences
require proof of fault. (Sherras v De Rutzen)
If the words describing the offence themselves necessarily
import a fault element, it will be unnecessary to rely on the
presumption that fault is required.
possession necessarily connotes knowledge of the
existence of the object alleged to be possessed.
Whether the presumption of fault is displaced depends on 3
factors:
Words of the statute
Wording of surrounding provisions?
*Gibbs CJ: Surrounding provisions contain without
reasonable excuse, while s223B(1)(b) doesnt no
reasonable excuse available under s223B(1)(b) fault
required (not absolute liability, because it would result in
absurdity).
Subject matter of the statute
Seriousness of offence?
Gibbs CJ: Serious offences carry high penalties and
social stigma legislature unlikely to intend that these
serious consequences should be imposed on those who
had no intention or knowledge of doing anything wrong
probably subjective fault required.
Gibbs CJ: Offences regulating acts that are not criminal
in any real sense, but are acts which in the public interest
are prohibited under a penalty are unlikely to need fault,
by reason of administrative efficiency.
Dawson J: Strict liability generally applies to less serious
regulatory offences (eg. health & traffic regulations).
Severity of penalty?
Gibbs CJ: The more severe the penalty, the less likely
the presumption of fault will be displaced.
*Life sentence cannot possibly be imposed on those
without fault need fault.
Utility of imposing strict liability
Strict liability serves purpose of legislation?
Gibbs CJ: Purpose is to compel people to take
preventative measures to avoid committing the offence
If D cannot reasonably prevent their doing of the
prohibited act, the offence probably requires fault (no
reason in penalising a luckless victim by strict liability).
(see Lim Chin Aik v R)
If the legislature intended the statute to punish people
who unwittingly or unreasonably engage in prohibited
conduct, then the presumption of strict liability is
favoured.
*Gibbs CJ: Punishing the unknowing will achieve
little good purpose here.
*Brennan J: Legislature could not have intended an
innocent passenger to be convicted because others
secretly put narcotic goods in their bags need
fault.

Gibbs CJ: If it is not particularly difficult to prove the

accuseds state of mind, then dont really need strict
liability.

If the offence does not require proof of fault, there is a strong

presumption that the defence of reasonable mistake of fact is
available.
R v Wampfler (per Street CJ): Courts are reluctant to
categorise offences as those of absolute liability in the
absence of a clear legislative intention (because absolute
liability offences punish on the basis of physical element
alone).
R v Reynhoundt: Prosecution not required to prove that the
accused knew or suspected that the victim of the assault was
a police officer.
Effect of CCA on offences without specified fault
S5.6(1) CCA: If no fault element is specified for conduct,
intention is the implied fault element for that physical
element.
S5.6(2) CCA: If no fault element is specified for a
circumstance or result, recklessness is the implied fault
element for that physical element.
Defence of Reasonable Mistake of Fact
Proudman v Dayman: For strict liability offences, an honest
and reasonable belief in facts which, if they existed, could
make the defendants act innocent is a defence.
Elements of the defence:
There must be a mistake of fact (Glanville: ie. the
answer is perceptible by senses, or is a state of mind).
There must be a mistake and not mere ignorance.
State Rail Authority (NSW) v Hunter: A mistake can
only be made if there is a positive belief formed on
the elements of the particular offence.
Gherashe v Boase: A positive belief is more than
mere ignorance; the accused must have turned his
mind to the relevant facts.
The mistake must be made honestly on reasonable
grounds. (Proudman v Dayman)
The mistake of facts, if they existed, must render the
accuseds act innocent.
Bergin v Stack: The accuseds act is rendered
innocent only if the accused no longer breaches any
criminal law.
Legislation can expressly or impliedly displace the defence
of reasonable mistake of fact with a statutory alternative.
Defence of Intervening Events
S10.1 CCA: A person is not criminally responsible for an
offence that has a physical element to which absolute or strict
liability applies if:
That physical element is brought about by something
over which the accused has no control, and
The accused could not reasonably be expected to guard
against the bringing about of that physical element.

ELEMENTS OF CRIMINAL LIABILITY, PRINCIPLES OF PUNISHMENT, STRICT LIABILITY & ATTEMPT

ATTEMPT LIABILITY

Impossibility
Legal impossibility
Codification of Attempt Liability
No liability for attempts to commit imaginary crimes.
(Britten v Alpogut)
CCA s11.1(1): A person who attempts to commit an offence
Factual impossibility
is guilty of the offence of attempting to commit that offence,
Haughton v Smith
and is punishable as if the offence attempted had been
*Police hid inside a van full of stolen goods
committed.
goods ceased to be stolen.
CLCA s270A:
*Def later tried to unload the goods. Charged with
(1) Subject to subsection (2), a person who attempts to
attempting to handle stolen goods.
commit an offence is guilty of the offence of attempting
If the commission of an offence is physically
to commit that offence.
impossible, it is a defence to the charge of attempt.
(2) Where an attempt is constituted as an offence under
SA adopted Haughton v Smith, but it seems unlikely that
other provisions of any Act, this section does not apply
it will continue to be followed when it has been rejected
to that offence, and does not operate to create a further
in England and elsewhere in Australia.
or alternative offence to that former offence.
Britten v Alpogut
(3) Penalties for an attempt to which this section applies:
*Def believed he carried cannabis in secret
(a) attempted murder or attempted treason life
compartment of bag.
imprisonment.
*The powder was in fact not a prohibited import.
(b) principal offence has maximum penalty of life
Physical impossibility of the commission of an
imprisonment imprisonment not exceeding 12
offence provides no defence to the charge of
years.
attempt. Rejected Haughton.
(c) any other case maximum of 2/3 of the
Edmund English
principal offences maximum penalty.
*Def attempted to receive a car that he believed to
In SA, common law determines the elements of attempt.
be stolen.
*Car actually remained in possession of owner at all
Fault element in Attempts
times.
Immaterial that it was impossible to commit the
CCA s11.1(3): Intention and belief are fault elements with
offence.
respect to each physical element of the offence attempted.
CCA s11.1(4): A person may be found guilty (of an
Giorgianni v R: Fault for attempt is an intention to commit
attempt) even if committing the offence attempted is
the physical element(s) of the offence.
impossible.
Giorgianni v R: Oblique intention or recklessness is not
Statutory interpretation involving impossibility: Is the
sufficient for attempts to commit offences.
purpose of the legislation (that creates the principal offence)
Britten v Alpogut: Intention is judged on the facts that D
to impose liability for attempt here?
believed in.
A physical element of a completed offence may be so
The fault element(s) of the completed offence is irrelevant.
essential, that its absence is intended by legislature to bar
But can argue it is relevant because of rape + s11.1(6) CCA
liability for both the completed offence & the attempt.
(limitation argument).
Consider absurdity v deterrence.
CCA s11.1(6): Any defences, procedures, limitations or
Physical element in Attempts: Was the accuseds conduct
qualifying provisions that apply to an offence, apply also
sufficiently proximate to the completed offence?
to the offence of attempting to commit that offence.
CCA s11.1(2): To be guilty of attempt, the persons conduct
must be more than merely preparatory to the commission of
the offence. Whether this is so is a question of fact.
OConnor v Killian: A clear manifest intention to commit the
completed offence assists in establishing proximity.
Britten v Alpogut: Proximity is judged on the facts that D
believed them to be.
Judge will withdraw the question of liability for attempt from
the jury, if he is satisfied that no reasonable jury could be
satisfied that the Ds conduct was sufficiently proximate to
the completed offence.
Repentence
Desistance/repentance is no defence, because a change of
mind is rarely truly voluntary.
Success
CCA s11.1(4): A person may be found guilty (of an attempt)
even if the person actually committed the offence attempted.
R v Prior: It is irrelevant that the actus reus was complete.

Offences which cannot be attempted

R v Prior
If legislature specifically addresses and penalises
preliminary steps of a completed offence, then by
implication common law liability for attempt is
displaced by statute.
Everything leading up to the offence has been expressly
stated no room for common law attempt.
Ambiguity in language of statute
R v Prior: Ambiguity is resolved in favour of the accused by
refusing to extend the category of criminal offences.