Commonwealth Criminal Code: An Introduction to the General Principles

• NCJ Number: 195343
• Journal: Judicial Review Volume: 5 Issue: 4 Dated: 2002 Pages: 297-318
• Author(s): Ian Leader-Elliott
• Date Published: 2002
• Length: 22 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: Australia
• Note: Revised version of a paper presented to the Australian Institute of Judicial Administration Magistrate's Conference, July 20-21, 2001, Melbourne.

Annotation

This document provides a brief outline and explanation of Chapter 2 of the Criminal Code dealing with the elements of an offense.

Abstract

In Chapter 2 of the Criminal Code, the principles are primarily concerned with issues relating to guilt rather than punishment. Chapter 2 is based on the fundamental premise that offenses are constituted by their “elements.” All offenses consist of one or more physical elements, which are conduct, circumstances, and results. Fault elements include intention, knowledge, recklessness, and negligence. Proof of the necessary physical and fault elements does not, of itself, establish guilt. Chapter 2 adopts a binary structure in which responsibility is a compound resulting from proof of all the elements of the offense, combined with disproof or failure of all defenses that are open on the evidence. There are three concluding reflections involving significant issues in the jurisprudence of criminal responsibility. The first is the strong commitment to the principle that recklessness marks the threshold of criminal liability. The second is the sharp distinction in Chapter 2 between negligence and strict liability. The last is on the paradox resulting from the Commonwealth adoption of Chapter 2 of the Model Criminal Code. Negligence requires a gross or shocking departure from acceptable standards of behavior. The distinction between negligence and recklessness is that the offender was aware of a substantial risk that their conduct might result in a proscribed harm or involve incriminating circumstances. Maintenance of this distinction is a demanding task for courts. Strict liability is the elimination of any requirements of fault and the provision of a defense of reasonable mistake of fact. This distinguishes strict liability from absolute liability, and from fault liability based on intention, knowledge, recklessness or negligence. The defense is narrow and defined with literal insistence on the need for a mistake. Though the State and Commonwealth offenses are identical in their formulation, the absence of any common foundation of general principles in State and Federal law risks divergence in applying uniform legislation and encourages duplications of forensic resources. 67 footnotes