CRIMINAL CODE AMENDMENT
(CRIMINAL RESPONSIBILITY REFORM) (No 2) BILL 2005
SERIAL NO. 7

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Criminal Code Amendment (Criminal Responsibility Reform) Bill (No 2) 2005 (“the Bill”) is the first stage in the progressive reform of the Northern Territory’s Criminal Code.  The Bill sets out, with some minor modifications, the general principles of criminal responsibility in Chapter 2 of the Model Criminal Code (“the Model Code”) developed by the national Model Criminal Code Officers Committee (“MCCOC”), established by the Standing Committee of Attorneys-General (“SCAG”) and as modified by SCAG.  This Chapter has been enacted both by the Commonwealth and by the Australian Capital Territory.  The Bill comprises Part IIAA based on Chapter 2 and also proposes new offences based on the Model Code to replace offences that are to be repealed by this Bill.  

Part IIAA of the Bill sets out the general principles of criminal responsibility, which will eventually apply to all Northern Territory offences.  The principles will not apply to all offences immediately.  There will be staged approach because a large number of amendments will be required in relation to existing criminal offences because existing offences are drafted on the basis of different principles.  The staged approach should also assist practitioners and courts to adjust to the changed approach and minimise confusion.  The criminal responsibility principles will first apply to offences contained in this Bill and thereafter to offences that are added to Schedule 1 or offences declared to be ones to which Part IIAA applies.  The existing criminal responsibility provisions of Part II will cease to apply to Schedule 1 offences or declared offences.  Some of the provisions of the existing Part 1 will no longer apply to Schedule 1 or declared offences because these matters are now provided for in Part IIAA.

The Commonwealth was the first Australian jurisdiction to enact Chapter 2 of the Model Criminal Code and the Bill is substantially similar to that passed by the Commonwealth in 1995.  The enactment of Chapter 2 as Part IIAA will ultimately be a valuable aid in interpreting and applying offences created by statute.  The Australian Capital Territory is undertaking a similar reform process to our own and has enacted Chapter 2.

The Commonwealth prepared a very detailed Explanatory Memorandum for its Bill, which included a discussion of the case law from which the Code provisions were derived.  This Explanatory Statement reproduces extracts from the ACT Explanatory Memorandum, which included substantial extracts from the Commonwealth’s Explanatory Memorandum, for their Bill.  This Explanatory Statement reproduces those references and the Government is grateful to the Commonwealth Attorney-General’s Department and the ACT Department of Justice for making their Explanatory Memoranda available for use.  Extracts from the Commonwealth Explanatory Memorandum included in this statement have been amended slightly to ensure that the references to particular provisions reflect the numbering in the Northern Territory Bill and where relevant, references to existing Northern Territory law have been added.

The Bill repeals the current offences of manslaughter and dangerous act.  New provisions providing for offences of manslaughter, endangerment and negligence as to serious harm and harm, causing death or serious harm by dangerous driving are proposed.  The existing offence of sexual intercourse without consent is amended. 

NOTES ON CLAUSES

PART 1 - PRELIMINARY

Clause 1.	Short title.

This is a formal clause which provides for the citation of the Bill.  The Bill when passed may be cited as the Criminal Code Amendment (Criminal Responsibility Reform) Bill 2005.

Clause 2.	Commencement.

This clause explains that the Act will commence on the date fixed by the Administrator by notice in the Gazette.

PART 2 – AMENDMENT OF CRIMINAL CODE

Clause 3.	Principal Act amended.

This clause provides that Part 2 of the Bill amends the Criminal Code.

Clause 4.	Amendment of section 1 (Definitions).

This clause omits current definitions of “bodily harm” and “grievous harm” and inserts new definitions for the purpose of Part IIAA and the offences proposed by the Bill.  

Clause 5.	New section 1A.

This clause inserts a new section providing for a definition of harm.

Clause 6.		Amendment of section 31 (Unwilled act etc and accident).

This clause omits the reference to section 154 in the current section 31 because section 154 is to be repealed by this Bill.
Clause 7.	New Part IIAA.

This clause inserts the new Part IIAA on criminal responsibility.  It provides for the following provisions.

Division 1 - Preliminary

43AA 	Application of this Part and relationship with Parts I and II

This provision explains that the new Part IIAA will only apply to Schedule 1 offences and to offences that are declared offences committed on or after the commencement of the Act.  It provides that certain provisions of the current Part 1 do not apply to Schedule 1 or declared offences and that the existing criminal responsibility provisions of Part II will not apply to Schedule 1 or to declared offences committed on or after the commencement of the Act.

Division 2 – Elements of offence

Subdivision 1	General Matters

43AB	Elements

Offences consist of physical and fault elements.  The Code adopts the usual analytical division of the elements of criminal offences into the actus reus (which the Code terms “physical elements”) and the mens rea (which the Code terms “fault elements”). 

Most offences consist of one or more physical elements each with its accompanying fault element.  43AB(2) explains that some offences do not have a fault element for one or more physical elements.  Strict liability offences are an example of offences without fault elements.  Sometimes there may be different fault elements for different physical elements. 

43AC	Establishing guilt of offences

This provision states the presumption of innocence in summary form.  That is, a person is innocent of an offence until the elements of the offence are proved.  In order to find a person guilty of an offence, it is necessary to prove the existence of the relevant physical elements of the offence and the relevant fault element or fault elements (if any) required for each physical element of the offence.  If the law that creates the offence requires the existence of one of two or more fault elements for a physical element of the offence, it will be sufficient if only one of the alternative fault elements exists for that physical element.  In rare cases where more than one fault element is required for a physical element of the offence all the fault elements for that physical element must exist.  However, it is important to note 43AK(4).  It provides that if “recklessness” is a fault element for a physical element of an offence, proof of “intention”, “knowledge” or recklessness will satisfy that fault element.  

The provisions dealing with who must prove the elements of an offence and to what standard, are set out Division 6.

Subdivision 2	Physical elements

43AD	Conduct and engaging in conduct

This provision defines the terms “conduct” and “engage in conduct”, which are used throughout the Act.  “Conduct” can be an act, an omission to perform an act or a state of affairs.  Similarly, “engage in conduct” means to perform an act or omit to perform an act. 

43AE	Physical elements

This provision explains that the physical elements of an offence may be conduct, a result of conduct or a circumstance in which conduct or a result of conduct happens .  

There is no definition of the term “act”.  The reason for this omission is explained in the Commonwealth Explanatory Memorandum:

The meaning of the term “act” has been problematic both at common law and under the existing State ‘Griffith Codes’ [and the NT Code].  There are two difficulties.

The first difficulty is whether acts are comprised only of physical components or whether they also contain a minimal mental component of voluntariness, (that is the will to act).  Voluntariness is usually regarded as part of the act and the Code has adopted that analysis.  However, this makes it extremely difficult to distinguish between voluntariness and intent in simple offences (called offences of “basic intent”).  This issue is dealt with in more detail in relation to voluntariness.

The second, more difficult, problem was how the Code should deal with the often crucial facts and circumstances surrounding conduct which gave that conduct colour and meaning but are not legal elements of the offence.  For example, take a case where the defendant pushes a glass into a victims face.  Should the “act” be understood narrowly as just a bodily movement (the movement of the defendant’s hand) or more broadly to include the circumstance that the defendant had a glass in his hand?  The problem is that if “act” includes circumstances defining the conduct, then the distinction between “act” and “circumstances” seems to collapse.  This would also confuse the relationship between conduct and the fault elements.  The fault elements should assume a distinction between acts and circumstances. 

In a series of cases: Vallance (1961) 108 CLR 56; Mamote-Kulang (1964) 111 CLR 62; Timbu Kolian (1968) 119 CLR 47; Kaporonovski (1973) 133 CLR 209; and Falconer (1990) 171 CLR 30 the High Court has considered the meaning of “act” in section 23 of the State Griffith Codes.  At first, different meanings were attributed to the term by different members of the Court.  Thus, in the context of discharge of a firearm wounding a person, the meanings ranged from the physical movement involved in the contraction of the trigger finger to the actual wounding of the victim.

However, by 1973 with the Kaporonovski decision, one view had emerged as the broadly accepted view of the Court and this was confirmed in Falconer.  In that case Mason CJ, Brennan and McHugh JJ at p.38 and 39 said:

“In our opinion, the true meaning of 'act' in s.23 is that which Kitto J. in Vallance attributed to 'act' in s.31(1) of the Tasmanian Code, namely, a bodily action which, either alone or in conjunction with some quality of the action, or consequence caused by it, or an accompanying state of mind, entails criminal responsibility ...  Adopting the meaning of 'act' expressed by Kitto J. in Vallance, the act with which we are concerned in this case is the discharge by Mrs Falconer of the loaded gun; it is neither restricted to the mere contraction of the trigger finger nor does it extend to the fatal wounding of Mr Falconer.”

A similar analysis has been applied by the High Court in cases on the common law.  Ultimately, it was concluded that the better course is not to define “act” and to rely on the common sense approach of the courts to apply the interpretation in Falconer.  Although this may not solve all the problems in this difficult area, defining “act” could well introduce other more difficult problems.

43AF	Voluntariness

43AF(1) explains that in order for conduct to constitute a physical element of an offence it must be voluntary, and 43AF(2) explains that conduct is only voluntary if it is willed by the person whose conduct it is.  

In further explaining what is voluntary and what is not, the Commonwealth Explanatory Memorandum stated:

Despite the traditional analysis of crimes into actus reus and mens rea, the notion of what it means to “act” goes beyond mere physical movement.  At a minimum there needs to be some operation of the will before a physical movement is described as an act.  The physical movements of a person who is asleep, for example, probably should not be regarded as acts at all, and certainly should not be regarded as acts for the purposes of criminal responsibility.  This would be inconsistent with the principle of free will which underlies the rules of criminal responsibility.  These propositions are embodied in the rule that people are not held responsible for involuntary "acts", that is physical movements which occur without there being any will to perform that act.  This situation is usually referred to as automatism.

In cases where the prosecution has to prove intention or recklessness, the practical operation of the voluntariness requirement is slight.  This is because it will be easier for the accused simply to argue that he or she lacked the necessary fault element.  The degree of the impairment of the accused's consciousness has to be profound before the claim that he or she did not intend to act at all will be credible.  Further, for many offences where the mental element does not go beyond the immediate circumstances of the physical movement, the difference between voluntariness and intent almost disappears…

The practical significance of automatism arises in offences where the prosecution does not have to prove intent, knowledge or recklessness.  The draft follows the current position in requiring that conduct be a product of the will.  In light of Falconer, it is now clear that the common law and the Griffith Codes positions are the same on this issue.  

[43AF(2)] contains examples of conduct which is not voluntary and makes it clear that the list of conduct which is not voluntary is inclusive, though it is hard to imagine any involuntary conduct which would not be covered by the list.  The term "reflex" is less appropriate than "unwilled bodily movement"; some reflex acts can be regarded as voluntary (for example, the reflex responses of a skilled sportsperson).  Because impaired states of consciousness may vary in degree, [example 3 in 43AF(2)] is drafted to leave the jury to decide whether the condition was so profound that it rendered the conduct involuntary…

The Commonwealth Explanatory Memorandum also explained the remaining provision of this clause as follows:   

[43AF(3)] provides that an omission to perform an act is only voluntary if the act omitted was one which the person is capable of performing.  Clearly, the physical element of an offence constituted by conduct can include conduct constituted wholly by an omission to act.  However, it was decided to accept the common law and Griffith Codes position that omissions attract liability only if the statute creating the offence explicitly says so, or the omission was in breach of a legal duty to act...  

It will be necessary for the prosecution to prove that the omission was accompanied by any relevant fault element.  The circumstances in which there is a legal duty to act will be set out in the relevant offence provisions. 

[43AF(4)] provides that if the offence consists only of a state of affairs, for example being a vagrant, then the state of affairs can only be voluntary if the person is capable of exercising control over it.  Offences like "being a drug addict" are to be avoided because that they penalise conduct which is involuntary.  [43AF(4)] maintains the general principle of voluntariness for such offences… 

[43AF(5)] provides that evidence of self-induced intoxication cannot be considered in determining whether the conduct was voluntary.  It was decided in the Standing Committee of Attorneys-General that there should not be a defence of “gross intoxication” (where that intoxication was self-induced), that is the defendant was so grossly intoxicated that his or her act was not “voluntary” but instead it should follow the decision in Majewski [1977] AC 480.  Majewski does allow evidence of intoxication to be used to deny intention or recklessness in offences of “specific intent.” This approach is consistent with that adopted in the main common law jurisdictions (England, Canada and the USA; and the Griffith Code States (Queensland, Western Australia, Tasmania and the Northern Territory).  It will replace the common law in [other Australian jurisdictions] where ‘gross intoxication’ may be taken into account in relation to all offences as a result of the High Court’s decision in O’Connor’ (1980) 146 CLR 64.  Ministers recognised that to legislate to enable intoxication to be used as an excuse for otherwise criminal conduct in relation to simple offences of “basic intent” (such as assault), when alcohol and drug abuse are such a significant social problem, would be unacceptable. 

The commentary below on 43AR and 43AS explain what constitutes self induced intoxication and offences of “basic” and “specific” intent.    

43AG	Omissions

This provision explains that an omission to perform an act can only be a physical element of an offence if the offence provision makes it a physical element or impliedly provides that the offence is committed by an omission to perform an act that the defendant has a legal duty to perform.  43AG(2) expressly provides that an omission to perform any of the duties referred to in Part VI, Division 1 can be a physical element of a Schedule 1 offence.

Subdivision 3	Fault elements

43AH	Fault elements

This clause explains that the fault elements for a physical element may be intention, knowledge, recklessness or negligence.  These are set out in descending order of culpability.  Intention is regarded as more blameworthy than negligence and therefore offences with a fault element of intention will have higher penalties than similar offences with a fault element of negligence. 

The four fault elements referred to in 43AH(1) are the usual or “standard” fault elements of an offence but they are not an exhaustive list of the fault elements that can apply.  Accordingly, 43AH(2) makes it clear that a law that creates an offence can specify other fault elements for physical elements of the offence.  For example, some offences have a fault element of doing, or failing to do, something “dishonestly” or “unreasonably”. 

The Commonwealth Explanatory Memorandum discussed the key fault elements set out in 43AH(1):

The Griffith Codes and the common law take different approaches to the structure of the rules of criminal responsibility.  However, while the difference should not be minimised, its practical effect is less than is often thought.  The essential difference between the two systems is that criminal responsibility under the common law is based on subjective fault elements: what the accused knew, believed or intended at the time of the conduct.  This is not so under the basic provisions of the Griffith Codes. 

In many offences under the Griffith Codes (eg section 302 of the Queensland Code (murder)), one or more forms of intention are express elements of the offence.  In these cases, the difference between the Griffith Codes and the common law as regards intention is less marked.  While many of the provisions of the Codes — particularly those related to property — also require a subjective fault element, the basic provisions of the Codes do not.  Instead, under those provisions criminal responsibility is negated by accident, or honest and reasonable mistake, or where the event occurred independently of the will of the accused.  Under the relevant Code provisions, as interpreted by the courts, a range of grounds of exculpation are thus available to the defence.

The differences between the two approaches can be illustrated by an example based on section 317A of the Qld Code.  This section makes it an offence, amongst other things, to carry or place dangerous goods on board an aircraft.  No element of intention is stated.

Under common law rules, the onus would be on the prosecution to establish that the defendant knew he or she was placing dangerous goods on board an aircraft (see He Kaw Teh (1985) 157 CLR 523) or was aware of at least a likelihood that the goods he or she was placing were dangerous: Bahri Kural (1987) 162 CLR 502.  In a common law jurisdiction, the case would not be allowed to go to the jury if the Crown failed to prove this element.  Under the Griffith Codes, the prosecution case would normally go to the jury without proof of knowledge by the defendant of the nature of the goods.  The Crown would only need to disprove involuntariness and accident in terms of section 23, or honest and reasonable but mistaken belief under section 24, if those issues were raised.

The defence of mistake is also a point of difference.  At common law, an honest albeit unreasonable mistake can afford a defence to offences involving a mental element.  Under the Griffith Codes, regardless of whether the offence involves a mental element, a mistake of fact will only afford a defence where a mistake is both honest and reasonable.  Notwithstanding that apparent difference, the experience of juries in common law jurisdictions is that they reject the defence where the mistake is not credible because it is unreasonable.  In light of these considerations, it can be seen that while the difference between the Griffith Codes and common law jurisdictions is not as great as it is sometimes portrayed, there are differences which will affect the outcome in some cases.  In particular, fewer cases are likely to get to the jury under the common law because generally under the Griffith Codes the prosecution does not have to prove a fault element.

The Griffith Codes have served their respective jurisdictions well.  However, it must be noted that when first enacted in the late nineteenth/early twentieth century, the Griffith Codes were closer to the common law as it then stood.  The common law has changed significantly since then.  The main change lies in the strengthening of the presumption that intent is part of the definition of all offences and the combination of that change with the spirit of Woolmington [1935] AC 462 — that the prosecution bears the burden of proof, and hence the burden of proving intent.  This contrasts with the significant group of Griffith Code provisions which do not specify intent but leave it to be raised indirectly if at all by casting an evidential burden on the defendant to raise accident or mistake under sections 23 or 24 before requiring the prosecution to disprove them.  The Griffith Codes now stand outside the mainstream of legal development of the late 20th century which has stressed and indeed expanded the requirements for subjective fault.  In this regard it was noted that the US Model Penal Code, the English Draft Code, the Canadian Draft Code, the Gibbs Committee's Draft Bill and the NZ Crimes Bill 1989 have all taken the subjective fault element approach.

43AI	Intention 

The purpose of this clause is to explain what is meant by “intention”, the most culpable fault element.  It provides that a person has intention with respect to conduct if he or she means to engage in that conduct.  

The Commonwealth Explanatory Memorandum explained that:

The definition is based on the English Draft Code, but the definition of intention in relation to "conduct" is derived from the Canadian Draft Code.

[43AI(3)] provides that a person has intention with respect to a circumstance if he or she believes that it exists or will exist.  While the distinction between circumstances and consequences is problematic at the margins, there is a clear difference in most cases.    

The approach taken is at variance with the Gibbs Committee's decision to define "intention" to include advertence to probability.  There are a number of reasons for this.  Conceptually, it confuses intention and recklessness.  Moreover, the legislature and the courts are unduly hampered if they want to require proof of "true intention" — in the sense of meaning an event to occur.  In relation to recklessness, advertence to probability without the evaluative element of unjustifiability of risk omits a central component of the notion of recklessness which is discussed further in the note on [43AK].

[43AI(2)] provides that a person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.  It was felt the definition of "intention" should include awareness that the result will occur in the ordinary course of events, or is morally or virtually certain to occur.  Therefore the definition follows the wording proposed in the English Draft Code.  The contrary position is that such an awareness or foresight is at best evidence, perhaps very good evidence, of intention, but does not amount to intention.  That is the position taken by the House of Lords in Moloney [1985] AC 905; Hancock [1986] AC 455.  See also Nedrick [1986] 1 WLR 1025. 

43AJ	Knowledge

The effect of this provision is to make it clear that a person has knowledge of a circumstance or result if he or she is aware that it exists or will exist in the ordinary course of events. 

The Commonwealth Explanatory Memorandum explained:

Knowledge is defined in relation to circumstances and results, but not in relation to conduct.  There were no circumstances that could be thought of in which knowledge of conduct- as opposed to intention in relation to conduct - would be appropriate.  It was decided knowledge should not be defined in terms of foresight of probability for similar reasons to those given in the context of intention.  In addition to define knowledge in terms of foresight collapses knowledge and belief.  One cannot "know" something unless it is so; but one can foresee the likelihood of something that is not so or will not be so.

It was decided that "wilful blindness" could not be considered to be a discrete fault element.  Knowledge and recklessness fairly cover the field.

43AK	Recklessness

43AK(1) explains that a person is reckless in relation to a result if he or she is aware that there is a substantial risk that the result will happen, and that having regard to the known circumstances, it is unjustifiable to take the risk.

43AK(2) explains that a person is reckless in relation to a circumstance if he or she is aware that there is a substantial risk that the circumstance exists or will exist, and that having regard to the known circumstances, it is unjustifiable to take the risk. 

The Commonwealth Explanatory Memorandum detailed the history of these provisions:

This definition [in 43AK(2)] substantially follows the US Model Penal Code in using "substantial" and "unjustifiable" as the two key words.  Recklessness has been defined in terms of a "substantial" risk rather than in terms of probability or possibility because those terms invite speculation about mathematical chances and ignore the link between the degree of risk and the unjustifiability of running that risk in any given situation.

[43AK(1)] provides that a person is reckless with respect to result if he or she is aware of the substantial risk that the result will occur and having regard to the circumstances known to him/her it is unjustifiable to take the risk.  It now seems clear at common law that foresight of probability is restricted to murder and the foresight of possibility is the test for all other offences, including complicity in murder.   

[43AK(1) and (2)] makes it clear that the unjustifiability of the risk is to be assessed on the facts as the accused believes them to be.  It was decided that the modification of the existing recklessness tests by substituting "substantial" for “probability” or “possibility” and adding the concept of unjustifiability set the proper level for recklessness.  Distinguishing recklessness and negligence only on the basis of the subjective/objective test would have been too great a departure from the established concepts.  The tests in proposed section [20] adequately distinguishes between the culpability of those who knowingly take substantial and unjustifiable risks and those who do not see risks but are criminally negligent.  Although there may be some cases in which it may be more culpable to be negligent, in the generality of cases recklessness is traditionally and correctly seen as the more culpable state of mind.  

[43AK(3)] states that the question of whether a risk is unjustifiable is one of fact.  The word "unjustifiable" has been used to express the evaluative element of recklessness rather than "unreasonably" as used by the Gibbs Committee in order to avoid confusion between recklessness and criminal negligence.  This leaves the question whether the risk taken is "unjustifiable" for the jury (or the judge or magistrate in cases where there is no jury).

[43AK(4)] provides that if recklessness is a fault element for a physical element of an offence proof of intention, knowledge or recklessness will satisfy that fault element. 

Some jurisdictions employ the concept of "reckless indifference" in their criminal legislation.  The Code definition should apply equally to that form of words.  There are dicta to that effect in the High Court in Royall (1991) 65 ALJR 451.

43AL	Negligence

A person will be regarded as negligent with respect to a physical element of an offence if his or her conduct:

·	falls so far short of the standard of care that a reasonable person would have exercised in the circumstances; and
·	involves such a high risk that the physical element exists or will exist that the conduct merits criminal punishment.

The Commonwealth Explanatory Memorandum explained:

The definition is based closely on Nydam [1977] VR 430.  

The phrase “merits criminal punishment” is well-accepted and the best available to distinguish civil from criminal negligence, a distinction which has troubled courts since Andrews  [1937] AC 576.  The provision is designed to deal with different levels of criminal negligence for some offences (for example, the different levels of negligence for manslaughter and negligent driving, see Buttsworth [1983] 1 NSWLR 658).    

The idea that recklessness is a more culpable state of mind than criminal negligence is put to the test when one defines criminal negligence as requiring a judgment that the falling short of community standards be so great as to warrant criminal punishment whereas recklessness is found by a mere decision to take a substantial and unjustifiable risk.  This would have been a greater problem had recklessness been defined in terms of foresight of possibility and the taking of an "unreasonable" risk. 

43AM	Offences that do not provide fault elements

43AM(1) provides that if the law that creates the offence does not provide a fault element for a physical element of the offence that consists only of conduct, intention is the fault element for that physical element.

43AM(2) provides that if the law that creates the offence does not provide a fault element for a physical element of an offence that consists of a circumstance or a result, recklessness is the fault element for the physical element.  

The legislation must be specific if intention or recklessness is not the desired fault element for a physical element of the offence.   

Subdivision 4	Cases where fault elements are not required.

43AN	Strict Liability

In common with most Australian jurisdictions, Northern Territory legislation contains a large number of strict liability offences (that is, no fault elements apply) that are not clearly identified as such.  This is often the cause of considerable confusion and a waste of valuable court time.  The aim of 43AN is to ensure that in future, all NT offences will make it clear on their face whether or not they are strict liability offences.  

43AN(1) provides that if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence.  Essentially this means that conduct alone is sufficient to make the defendant culpable.  

43AN(2) also envisages that there will be offences where strict liability applies to a particular physical element of the offence.  There will be no fault element for this physical element, though fault elements could apply to another physical element of the offence.  

Under the Code, all strict liability offences will have a specific defence of mistake of fact.  This defence is not available for those offences without a fault element that are classified as offences of “absolute liability”, which are discussed below.

43AN(3) makes it clear that other defences may still be available for use in strict liability offences. 

43AO	Absolute Liability

This provision deals with offences of absolute liability.  If an offence states that it is one of absolute liability, there are no fault elements and the defence of mistake of fact is not available.  Absolute liability may also apply to a particular physical element of an offence, and in such cases there is no fault element for that physical element and the defence of mistake of fact is not available.  

The absence of a defence of mistake of fact accentuates the difference between strict liability and absolute liability offences.  Other defences, for example that the person’s conduct was not voluntary, would still be available. 

Division 3		Circumstances where there is no criminal responsibility

Subdivisions 1 and 2 set out the principles of criminal responsibility relating to children and young persons and persons intoxicated at the time of their alleged conduct.  The provisions in relation to mental impairment that appear in Chapter 2 of the Model Code are not being enacted in this Part.  Provisions in relation to mental impairment based on the Model Code have already been enacted as Part IIA of the NT Code in an earlier reform.

Subdivision 1	Lack of capacity - of children 

43AP	Children under 10 

This provides that a child under the age of 10 lacks criminal responsibility and therefore cannot be convicted of a crime.  This is currently the law in the NT (section 38 of the Criminal Code).  

43AQ	Children 10 and over but under 14 

This provision also repeats the law as it currently stands in the NT and the rest of Australia.  It provides that a child aged 10 or more but under 14 is not criminally responsible unless the child knows that his or her conduct is wrong.  To establish criminal responsibility in these cases the onus will be on the prosecution to prove beyond a reasonable doubt that the child knew that his or her conduct was wrong.  Since this is essentially a question of fact, it will ultimately lie on the jury to determine on the evidence whether the child in fact knew that the conduct was wrong. 

Subdivision 2	Intoxication 

43AR	Self–induced intoxication 

This is a definition provision that applies to the Code generally but more particularly to 43AS to 43AV, which set out the relevant principles that apply in cases where an alleged offender is intoxicated at the time of the relevant conduct. 

The term “fault element of basic intent” which is defined in clause 4 is pivotal to these provisions and is defined as a fault element of intention for a physical element that consists only of conduct. 

The Commonwealth Explanatory Memorandum expanded on this as follows:

A fault element of intention with respect to a circumstance or with respect to a [result] is not a fault element of basic intent.  
DPP -v- Majewski [1977] AC 480 refers to ‘basic intent offences’ but, because an offence may have a number of fault elements [the definition of “fault element of basic intent”] is drafted in terms of basic intent fault elements rather than basic intent offences.  This is the drafting approach used throughout Chapter 2.

Conceptually [the definition of “fault element of basic intent”] is tied to the definitions of the fault elements in [subdivision 3].  [This definition] applies to a fault element which requires proof of intent (not knowledge or recklessness) and is basic intent in the sense that it only applies to intent to engage in conduct (not intent with respect to circumstances or consequences).  This implements the law in Majewski.  Thus a defendant would not be able to use voluntary intoxication to deny intent to act or omit, but could use it to deny intent, knowledge or recklessness with respect to circumstances or consequences.

A person’s intoxication may be caused by alcohol, a drug or any other substance and will be taken to be self-induced unless it is brought about involuntarily or by fraud or sudden or extraordinary emergency, accident, reasonable mistake, duress or force.  It will also be regarded as not self–induced if a person takes a drug in accordance with the directions of a medical practitioner (in the case of a prescription drug) or the recommendations of the manufacturer (in the case of non prescription drugs) and suffers an adverse or abnormal reaction resulting in intoxication.  This is intended to ensure that persons are not held criminally liable for the adverse or abnormal reactions they may suffer to a drug taken properly and for the purpose for which it was intended.  But these exceptions will not apply if, at the time the person takes the drug, he or she knew or had reason to believe that using the drug would significantly impair his or her judgment or control.     

43AS	Intoxication – offences involving basic intent 

This clause provides that evidence of intoxication that is 
self-induced cannot be considered in determining whether the defendant intended to carry out the conduct (or intended to omit carrying out the conduct) that constituted the offence.  This provision lies at the heart of the Code regime on intoxication and ensures that persons cannot rely on self-induced intoxication to escape criminal liability by claiming that they lacked the “basic intent” to commit the crime.  But as indicated above, this provision does not prevent the court from considering evidence of self-induced intoxication in relation to a fault element of intention with regard to a result or a circumstance.  For example, in the case of an assault, evidence of self-induced intoxication cannot be used to show that the defendant lacked the “basic” intent to carry out the act of punching the victim but such evidence can be used to show that the defendant lacked the intention to bring about the result of inflicting grievous bodily harm on the victim.    
  
The Commonwealth Explanatory Memorandum described the remaining provisions in clause 31, as follows: 

[43AS(2)] provides that the section does not prevent evidence of self-induced intoxication being taken into consideration in determining whether conduct was accidental.  This may apply to the drunk who stumbles into another person lying in the street as opposed to the drunk who kicks the other person.

[43AS(3)] provides that the section does not prevent evidence of self-induced intoxication being taken into consideration in determining whether a person had a mistaken belief about facts if the person had considered whether or not the facts existed.

Under [43AS(4)] a person may be regarded as having considered whether or not facts exist if he or she had considered, on a previous occasion, whether those facts existed in circumstances surrounding that occasion and he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.  This is consistent with [43AX] (Mistake of fact - strict liability) and provides a fair way of dealing with mistake, but at the same time remain[s] consistent with the principles in relation to intoxication.

43AT	Intoxication – negligence as fault element

This clause sets out special rules for intoxication where “negligence’ is a fault element of an offence.  The Commonwealth Explanatory Memorandum described the provisions as follows:

[43AT(1)] provides that if negligence is a fault element for a particular physical element of an offence then in order to determine whether the fault element existed in relation to an intoxicated person, regard must be had to the standard of a reasonable person who is not intoxicated.  Intoxication has no relevance to offences based on negligence, strict or absolute responsibility, unless the issue of voluntariness is raised, because they do not involve any subjective fault element.  For example, the fact that the defendant was intoxicated is not relevant to the reasonable person test in negligence; the reasonable person is not intoxicated.  

[43AT(2)] provides that if intoxication is not self-induced regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.  However, the restrictions on intoxication do not apply to people who become intoxicated involuntarily, for example, by fraud [43AR(1)(b)].  Because the Code allows a consideration of evidence of intoxication to all fault element offences other than those of basic intent and negligence, there is no need to provide for involuntary intoxication in those cases.  However, basic intent and negligence offences raise a special problem.  It would be unfair to hold a person who had become involuntarily intoxicated to the standard of a reasonable person.  In such cases, the defendant should be assessed by reference to the standard of a reasonable person who was intoxicated to the same extent as the defendant.  Intoxication can vary in degree.  An accused who is only moderately intoxicated as a result of being deceived by some third party will still be liable if his or her conduct falls greatly short of the standard of care that a reasonable person, intoxicated to the same extent, would have exercised As in the rest of the Code, it is possible expressly to exclude the operation of these rules on intoxication for specific offences.  This will be considered, offence by offence, in codifying the substantive offences.

43AU	Intoxication – relevance to defences

43AU(1) provides that if any part of a defence is based on actual knowledge or belief, evidence of intoxication can be considered in determining whether that knowledge or belief existed.  However, this does not apply to an offence where each physical element has a fault element of basic intent and any part of a defence is based on actual knowledge or belief.  Subclause 33(2) provides that in such cases evidence of self-induced intoxication cannot be considered in determining whether the relevant knowledge or belief existed.  
    
If any part of a defence is based on reasonable belief, one of two rules will apply in determining whether the reasonable belief exists, depending on whether the defendant’s intoxication is self induced or not.  If it is self-induced subclause 33(3) provides that the standard of a reasonable person who is not intoxicated will apply in determining whether the reasonable belief exists.  If the intoxication is not self-induced subclause 33(4) provides that the standard of a reasonable person intoxicated to the same extent as the defendant will apply.   

43AV	Involuntary Intoxication

This clause provides that a person is not criminally responsible for an offence if his or her conduct is the result of intoxication that is not self-induced.  The Commonwealth Explanatory Memorandum explained:

In Kingston  (1993)  WLR 676 a defence was established akin to duress that the defendant only formed the relevant fault element as a result of involuntary intoxication, and this forms part of the law surrounding Majewski.  The case dealt with a situation where the defendant knew what he was doing when he committed the offence but had been influenced in his conduct as a result of someone else unknown to him spiking his drink.

Subdivision 3	Mistake or ignorance

43AW	Mistake or ignorance of fact - fault elements other than negligence

This provision explains that in certain circumstances a person is not criminally responsible for an offence with a physical element for which there is a fault element other than negligence.  If a person is under a mistaken belief, or is ignorant of relevant facts, when the physical element occurs, the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.  Consistent with the approach based on subjective fault elements, the Code provides that mistaken belief may negative intention, knowledge and recklessness.  This is a codification of the common law position.  The defence of mistake or ignorance of fact is not appropriate in negligence offences.

43AW(2) explains that the reasonableness of the mistake is a factor for the “tribunal of fact” (the jury in the case of trial by jury, the court in other cases) to consider in deciding whether the mistaken belief was actually held.  In other words, if the mistake or ignorance seems very unreasonable, the jury or the court may form the view that the defendant was not genuinely mistaken or ignorant.

As the Commonwealth Explanatory Memorandum explained:

This is consistent with the common law position (Morgan [1976] AC 182) but different from the approach taken under section 24 of the Griffith Codes which requires that the mistake be reasonable.  43AW(1) differs slightly from the Griffith Codes in that there is no explicit reference to the mistaken belief being "honest"; the inclusion of this word would be redundant.

Under [43AW(2)] the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.  Although, strictly speaking, evidence of a mistake is only one sort of evidence which may cast doubt on the presence of a fault element, for the sake of clarity, the Code states the matter explicitly.  

43AX	Mistake of fact – strict liability

This clause explains when a person is not criminally liable for a strict liability offence, or a relevant physical element to which strict liability applies, because of a mistake of fact.  In brief, the defence will apply if, when the physical element occurs, the person considers whether or not facts exist and is under a mistaken but reasonable belief about those facts, and if the person had been correct the physical element would not have constituted an offence.  

The Commonwealth Explanatory Memorandum explained:

This adopts the so-called Proudman v Dayman (1941) 67 CLR 536 defence of reasonable mistake of fact.  Consideration was given to allowing ignorance as well as mistake.  It was argued that there was little moral distinction between mistake and ignorance.  Ultimately it was decided ignorance should not be included because this would make strict liability more like negligence, thus eroding the higher standard of compliance set by strict responsibility.  The proposed section is also consistent with McKenzie v Coles [1986] WAR 224.  

[Subclause 43AX(2)] provides that a person may be regarded as having considered whether or not facts exist if he or she had considered, on a previous occasion, whether they existed in the circumstances surrounding that occasion and he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same or substantially the same as on the other occasion.  This section was included to codify the rule in Mayer v Marchant  (1973) 5 SASR 567 regarding a belief that a state of affairs is continuing.

Consideration was given to the situation where the accused acts contrary to law but under a mistaken belief which negatives a fault element of the offence charged but believes that he or she is committing another criminal offence.  An example is a case in which the accused actually imports heroin believing that he or she is illegally importing dutiable watches.  

The accused must be acquitted of the offence “actually committed”(in the example, knowingly importing heroin) because he or she lacked the relevant knowledge.  Nor can the accused be convicted for illegally importing the watches because he or she has not done so.  The Code requires proof of the physical element of the offence (importing watches) and that is absent.  However, the accused should be liable to be convicted of attempting to commit the offence he or she believed was being committed…

The offence attempted may be of greater, lesser or of equal seriousness compared to the one charged.  However, the attempt conviction should not be made upon the same indictment or in the same trial unless the case was conducted from the beginning on the basis of a possible alternative conviction.  This is consistent with the operation of section 24 of the Queensland and WA Codes, but is a departure from the common law.  There is no specific reference to the onus of proof applicable to these provisions.  They are governed by the general provisions on the burden of proof in [Division 6] of this chapter.  These apply the principles set out in He Kaw Teh (1985) 157 CLR 523.  Hence, once evidence fit to go to the jury has been raised, the prosecution bears the onus of disproving the mistake.

43AY	Mistake or ignorance of law

A person can be criminally responsible for an offence created by statute or regulation even if he or she is mistaken, or ignorant of, the existence or content of an offence or its scope.  However if the law vreating the offence is a statutory instrument, a person is not responsible for an offence if at the time of their conduct the instrument was not known to the person and not published in the Gazette or made available in a way that a person would be aware of its contents by exercising due diligence.

43AY(1) does not apply if the statute or regulation creating the offence so provides or the ignorance or mistake negates a fault element that applies to a physical element of the offence.  

43AZ	Claim of right

This provision explains that a person is not criminally responsible for an offence, in certain cases.  If the offence has a physical element involving property, and when that element occurs, the person is under a mistaken belief about a proprietary or possessory right, which would negate a fault element of the offence, the person is not criminally liable.

The Commonwealth Explanatory Memorandum explained:

It was decided that the "defence" of claim of right should appear in this part of the Code.  "Claim of right" normally negatives a fault element, usually, but not necessarily, one of dishonesty, and the Code should reflect that approach.

Under [43AZ(2)] a person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.

However, [43AZ(3)] precludes claim of right in relation to the use of force.  Thus in an armed robbery where a defendant had a claim of right in relation to the goods taken, the defendant could still be convicted of the armed assault.

Subdivision 4	External factors

This Division provides for a number of general defences that will apply to Territory offences.   

43BA	Intervening conduct or event

The defence of intervening conduct or event only applies to strict and absolute liability offences and to the strict and absolute liability component of fault element offences.  A person is not criminally responsible for such offences if the physical element to which strict or absolute liability applies is brought about by someone else or by a non-human act or event over which the person has no control and could not reasonably be expected to have guarded against.  

The Commonwealth Explanatory Memorandum explained:

The common law contains a defence of "external intervention" for strict and absolute responsibility offences.  The defence is set out by Bray CJ in Mayer v Marchant (1973) 5 SASR 567:

“It is a defence to any criminal charge to show that the forbidden conduct occurred as the result of an act of a stranger, or as the result of non-human activity, over which the defendant had no control and against which he or she could not reasonably have been expected to guard.”

Although this looks like it might be a principle of causation, it operates in practice as a defence based on lack of fault to crimes of strict or absolute liability where a defendant can be proved to have committed the physical element of a strict liability offence.  Despite the fact, for example, that the defendant’s truck exceeded the prescribed weight limit, it did so because a third person had  secretly loaded it with additional items and the defendant could not reasonably have been expected to guard against this.  The defence is not necessary for offences containing fault elements because the defendant will lack the fault element or, in the case of negligence, argue that she or he had taken reasonable care.  

The WA and Queensland Codes have a similar provision in section 23 concerning accident.  Both rules operate in a similar way to provide a defence to the defendant based on lack of fault in offences where no fault element is required.  Because the Griffith Codes do not take the fault element approach and have a large number of offences lacking fault elements, the section 23 defence is more frequently used than in the common law jurisdictions.  Under the Code, which does take the fault element approach, it is only necessary to provide this defence for strict and absolute liability offences.

43BB	Duress

This clause provides that a person is not criminally responsible for an offence that he or she carries out under duress.  A person will be taken to be acting (or omitting to act) under duress only if he or she reasonably believes (a) that a threat has been made and will be carried out unless an offence is committed; (b) that there is no reasonable way that the threat can be rendered ineffective and (c) that the conduct is a reasonable response to the threat.

The Commonwealth Explanatory Memorandum explained the provisions of this clause as follows:

It was decided that the defence should not be further limited in artificial ways.  Where free will is overborne by duress, the nature of the offence is not relevant.  The reasoning of the House of Lords in Howe [1987] 1 All ER 771 and the preceding decisions that duress should not be available in murder cases was not followed.  The approach taken differs from section 31 of the WA Code [and s40 of the NT Code] which limits the applicability of the defence to certain defined kinds of serious offences.  However, the approach taken accords with that taken by the Murray Report for WA (I, 48 and 160) and the VLRC, Homicide at pp. 100-6, but not with the O'Regan Report for Queensland at 37.  

Finally, 43BB(3)] provides that the section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.  This limitation reflects the last substantive paragraph of section 31 [and s40 of the NT Code] of the WA Code.  [43BB(3)] includes the term “associating” to establish a temporal link between the association and the loss of the duress defence.

The defence should not be limited to defined kinds of threats (such as threats to inflict death or grievous bodily harm).  It is usual to say that the defence is not available unless the accused or another has been threatened by death or grievous bodily harm.  This appears in the case-law and also appears in the provisions of the Griffith Codes and the Gibbs recommendations (although the latter would also include threats of "serious sexual assault").  Yeo, "Private Defences, Duress and Necessity" (1991) 15 Crim LJ 139 at 143, argues that there should be no such limitation as a matter of logic-

“Once a person is under the influence of a threat, whatever he or she does depends on what the threatener demands.  The crime demanded might be trivial or serious but it has no necessary connection with the type of threat confronting the accused.  Policy reasons would, however, insist on a requirement that the accused's response was reasonably appropriate to the threat.”

The objective test should provide a sufficient safeguard against abuse of the defence.

43BC	Sudden or extraordinary emergency

This clause provides that a person is not criminally responsible for an offence where his or her conduct is a response to circumstances of sudden or extraordinary emergency.  The defence applies to fault element offences as well as strict and absolute liability offences.  The Commonwealth Explanatory Memorandum explained the provisions of this clause as follows:

The usual term for this defence at common law is “necessity”, but it was felt section 25 of the Griffith Codes is more appropriate, and that the defence should be available only in "a sudden or extraordinary emergency".  In his notes to the Draft Griffith Code, Sir Samuel Griffith stated:

“This section gives effect to the principle that no man is expected (for the purposes of the criminal law at all events) to be wiser and better than all mankind.  It is conceived that it is a rule of the common law, as it undoubtedly is a rule upon which any jury would desire to act.  It may, perhaps, be said that it sums up nearly all the common law rules as to excuses for an act which is prima facie criminal.”

[43BC(2)] provides the test for sudden or extraordinary emergency.  It provides that the section applies if and only if the person carrying out the conduct reasonably believes that circumstances of sudden or extraordinary emergency exist and committing the offence is the only reasonable way to deal with the emergency and the conduct is a reasonable response to the emergency.  

It recognises that an accused person is excused from committing what would otherwise be a criminal act in very limited circumstances.  Like duress, the necessity of the occasion and the response to it are both subject to an objective test.  The approach taken is an amalgam of the principles underlying the common law of necessity and the Griffith Codes equivalent.  The proposed section has been redrafted so that the words “sudden or extraordinary emergency” are not defined in terms of “an urgent situation of imminent peril” but are left to the jury as ordinary words in the English language.  

43BD	Self-defence

This provision simplifies the law on self-defence.  The general principle is set out in 43BD(1), which provides that a person is not criminally responsible for an offence if his or her conduct is carried out in self-defence.  

The elements of the defence are essentially set out in 43BD(2) which provides that it is only self-defence if the person’s conduct is reasonable in the circumstances he or she perceives and the person believes the conduct is necessary for any one or more of the following reasons:

·	to defend himself, herself or another; 
·	to prevent or terminate the unlawful imprisonment of himself, herself or another; 
·	to protect property from unlawful appropriation, destruction, damage or interference; 
·	to prevent any criminal trespass to any land or premises; and
·	to remove from any land or premises a person who is committing criminal trespass.  

The Commonwealth Explanatory Memorandum explained the provisions of 43BD as follows:

The test as to necessity is subjective but the test as to proportion is objective.  It requires the response of the accused to be objectively proportionate to the situation which the accused subjectively believed she or he faced (the words “as perceived by him or her” were added to make this clear).  This approach is consistent with section 45 of the Tasmanian Code.

[43BD(3)(a)] restricts the defence to ensure it does not apply to force that involves the intentional infliction of death or really serious injury for the purpose of protecting property rights.

It was decided not to define “really serious injury”.  These words are the equivalent to “grievous bodily harm”, a term the courts been reluctant to define.  [Note: Chapter 2 of the Model Code was developed prior to Chapter 5 Non Fatal Offences against the person in which MCCOC determined to abandon the common law definition of grievous bodily harm in preference for a statutory definition of “serious harm”.  The reference to “really serious harm” has therefore not been used and in this Bill is replaced by “serious harm” which is the approach taken also by the ACT in its enactment of Chapter 2].  The word “intentional” was added to ensure cases of accidental harm were not covered.  This approach is consistent with the South Australian Criminal Law Consolidation (Self-Defence) Amendment Act 1991 and the Western Australian Criminal Law Amendment Act 1991.

The extension of the right to use force to situations where the purpose is to terminate the unlawful imprisonment of the accused or another is rarely invoked at common law and consequently the law is in an unsatisfactory state.  The leading case Rowe v Hawkins (1858) 1 F&F 91, 175 ER 640 is draconian.  [Subclause 42(2)] extends the current provisions in the Griffith Codes, although it may be argued that subsection 31(3) of the WA Code may be broad enough to cover the situation if the expression "unlawful violence" is wide enough to encompass the concept of unlawful imprisonment.

In [43(3)(b)] a further restriction is placed on the right to use force in self-defence, so that it is not available where the accused was responding to force which was in fact lawful and which the accused knew to be lawful.  However the proposed section does allow a person to use self-defence against a deadly attack by a child or an insane person, even though the attacker is not criminally responsible [43BD(4)].  This provision is based on a similar recommendation made by the VLRC, Homicide, para 226.

Although not of great practical relevance to Federal offences, revision of the law of self-defence is very important in State and Territory legislation to which the same principles will apply.  In this connection the approach taken in [43BD] should be noted.  The decisions in the cases of Runjanic and Kontinnen [1991] 114 on the issue of battered women's syndrome have an important bearing on the defence of self-defence.  Those cases recognised that expert evidence could be admitted to show that women who have suffered "habitual domestic violence are typically affected psychologically to the extent that their reactions and responses differ from those which might be expected from those which might be expected by persons who lack the advantage of an acquaintance with the results of those studies."  The emphasis on subjectivity in the tests for self-defence in [43BD] - compared to objective tests based on the perception of the reasonable person - will allow expert evidence on battered women's syndrome to be used to make the actual perceptions and responses of the woman defendant to be placed before the jury.  The test of the necessity to use force in [43BD] is fully subjective.  The test of the proportionality of the response is objective but it is measured according to the defendant's perception of the situation she confronts.  The approach of drawing the rules relating to defences in a way that would fairly accommodate the responses of women and men was preferred to an approach which would make such syndromes free-standing defences.

43BE	Lawful authority

43BE provides that a person is not criminally responsible for an offence if his or her conduct is justified or excused under law.  The usual example is a police officer who uses physical force to effect an arrest.  Although the officer’s conduct may technically amount to an assault, an offence is not committed because of his or her power (at common law and under sections 212 and 221 of the Crimes Act) to arrest and use reasonable force in circumstances where it is necessary. 

Division 4	Extensions of criminal responsibility

This Division sets out the ancillary and inchoate offences that will apply in the NT.  

43BF 	Attempt

43BF provides that a person who attempts to commit an offence commits the offence of attempt.  That is, it is a separate and distinct crime from the offence the person attempted to commit.  However, in accordance with usual principles the crime of attempt is punishable as if the attempted offence had been committed (43BF(2)).  

Not all conduct directed to the commission of an offence will amount to a crime of attempt.  As 43BF(2) explains, the conduct must be more than merely preparatory to the commission of an offence.  The question whether conduct is merely preparatory is a question of fact to be determined by the tribunal of fact, which in most cases will be a jury.  

The Commonwealth Explanatory Memorandum explained the provisions of this clause, as follows:

The test for determining when a course of conduct has progressed far enough to warrant liability for attempt has been controversial in both Griffith Codes and common law jurisdictions.  Tests such as "unequivocality", "substantial act", "acts of perpetration rather than preparation" and "the last act rule" have been debated in the cases and literature.  The "more than merely preparatory" test catches cases where the defendant has the necessary fault element and has taken a step beyond mere preparation towards the perpetration of the offence.  

There will be cases where the distinction between preparation and perpetration will be difficult.  The best solution to this problem is to leave it to the tribunal of fact.  ...

43BF(4) provides that the fault elements for attempt are intention or knowledge.  The starting point for attempt is that the accused must act intentionally or knowingly with respect to each physical element of the offence attempted. 

It was decided that it should be possible to commit an attempt by an omission, so long as the circumstances are such that the general rules of the Code permits the omission to be treated as criminal.  See the English Law Commission, Attempt (para 13.46) and the Gibbs Committee recommendations (para 21.37-31.38, s.7C(5)) to the same effect.  The use of the definition of "conduct" to achieve this result follows the Victorian provision (Crimes Act, s.321N) and the course advocated in consultations conducted by the Criminal Law Officers Committee.  It follows that it should be possible, in the appropriate circumstances, for a person to be guilty of attempting to commit an offence, the conduct element of which is constituted by an omission.  It is possible to attempt strict and absolute liability offences but intent or knowledge will have to be shown.  This codifies the existing position, see Mohan [1976] QB 1.

43BF(9) adds an important qualification to 43BF(4).  It provides that any “special liability provision” that applies to the primary offence also applies to the attempt to commit the primary offence.  A “special liability provision” is defined as either (a) a provision that applies absolute liability to one or more (but not all) the physical elements of an offence; or (b) a provision that provides that in prosecuting an offence it is not necessary to prove that the defendant knew or believed a particular thing.  

The effect of 43BF(9) is that to establish an attempt it will not be necessary to prove that the defendant had intention or knowledge with respect to those elements of the primary offence to which a special liability provision applies.  Thus if the primary offence states that it is an offence to assault a police officer but that to establish that offence it is not necessary to prove that the defendant knew that the person was a police officer, then it is not necessary to prove that knowledge to establish the crime of attempt to assault a police officer.  

The Commonwealth Explanatory Memorandum explained the remaining provisions of this clause as follows:

43BF(6) provides that a person may be found guilty even if committing the offence attempted is impossible or the person actually committed the offence attempted.  This follows the Gibbs Committee recommendations.  At pages 339-340 of their July 1990 report the Gibbs Committee referred to problems which arose in Britten v Alpogut  (1986) 23 A Crim. R. 254 where the defendant was charged with attempting to import cannabis into Australia.  The evidence established that the defendant believed that he was importing such a substance, but the actual substance found in the concealed bottom of a suitcase collected by the defendant was not cannabis - it was a substance which was not prohibited.  The Gibbs Committee noted that if the English case of Smith [1975] AC 476 were to be followed in Australia, on no possible analysis of the facts could the defendant, under the existing law, be convicted for the attempted importation charge.  Yet the defendant had done all in his power to commit the offence of importing prohibited drugs and was frustrated in this purpose only by the fact that the packages did not contain the drug.  It follows that if defendants such as Alpogut were not punished, they might repeat the attempt and next time succeed.  Therefore the Code makes it clear impossibility will not be a bar in this way.  As a matter of consistency, the same rule also applies to conspiracy and incitement [see clauses 48 and 47 respectively]. 

43BF (7) provides that a person who is found guilty of attempting to commit an offence cannot be subsequently charged for the completed offence.  This is called “the doctrine of merger” which says that where the same facts constitute both a felony and a misdemeanour, the misdemeanour "merges" into the felony and hence, for all intents and purposes, disappears....    

43BF(8) provides that any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.  The word "defences" was added to take account of Beckwith (1976) 135 CLR 569.

43BF(10)provides that there can be no offence of attempt in relation to 43BG (complicity and common purpose) or 43BJ (conspiracy).  

43BG 	Complicity and Common Purpose

43BG provides that a person who aids, abets, counsels or procures the commission of an offence by someone else is taken to have committed the offence and is punishable as if the person in fact committed the offence.  The Code retains the traditional formula of "aid, abet, counsel or procure" because despite some difficulties with those terms, the meaning of the words is well understood.  

For this offence to apply the other person must in fact commit an offence and the conduct of the defendant must in fact have aided, abetted, counselled or procured the offence by the other person 43BG(2).  Further, the defendant must have intended either (i) that his or her conduct would aid, etc the commission of any offence of the type the other person committed; or (ii) intended that his or her conduct would aid an offence and was reckless as to the possibility that the other person would commit the offence he or she in fact committed.  Recklessness in this context amounts to an awareness of a substantial and unjustifiable risk that another offence beyond the one agreed would be committed.  Thus a person who aids another to commit an armed robbery will also be guilty of murder if the other person commits murder and the first person had foreseen a substantial risk of that occurring, and it was unjustifiable to take that risk (43BG(3)).

43BG(6) explains that a person may be found guilty of this offence even if the other person has not been prosecuted or has not been found guilty of the primary offence.  
 
As in the case of the offence of attempt, 43BG(7) provides that any “special liability provision” that applies to an offence will also apply to the offence of aiding, abetting, counselling or procuring the commission of the offence.  

43BG(5) is an important qualification to this offence in that it provides that a person cannot be found guilty of aiding etc the commission of an offence if, before the offence was committed, the person terminated his or her involvement and took all reasonable steps to prevent the offence. 

The Commonwealth Explanatory Memorandum explained:

The defendant is required to take “all reasonable steps to prevent the commission of the offence”.  What will count as taking all reasonable steps will vary according to the case but examples might be discouraging the principal offender, alerting the proposed victim, withdrawing goods necessary for committing the crime (eg a getaway car) and/or giving a timely warning to an appropriate law enforcement authority.  The models for this provision are s.2.06(6)(c) of the US Model Penal Code and section 8(2) of the Western Australian Code.  A similar defence exists at common law, see Croft [1944] KB 195;  Beccara and Cooper (1975) 62 Cr App R 212.

43BH 	Innocent agency

This clause provides that a person is taken to commit an offence if he or she has all the fault elements that apply to the physical elements of an offence and procures another person to engage in the conduct that makes up the conduct part of the physical elements of that offence.  The person is punishable for this offence as if he or she had committed the offence.   

The Commonwealth Explanatory Memorandum explained:

The doctrine of "innocent agency" is well known to the criminal law.  Proposed section [43BH] draws on section 2.06(2)(a) of the US Model Penal Code and section 7 of the WA Code.  It is not necessary that the defendant cause the innocent agent to commit all the elements of the offence.  So, for example, if the defendant assaults a victim while an innocent agent steals from the victim, then the defendant will be guilty of robbery.  The defendant has committed the assault element personally and has committed the theft element via an innocent agent.  The bracketed words “whether or not together with any conduct engaged in by the procurer” are added to make this clear.  

The word “innocent” is not included to avoid the necessity for the prosecution to prove that the agent was innocent.  The section now overlaps with complicity.  This makes no difference to the defendant’s liability since, if the agent was not innocent, the defendant would be guilty by reason of complicity.

43BI 	Incitement

A person who urges another to commit an offence commits the offence of incitement.   

The Commonwealth Explanatory Memorandum explained:

The word “urge” was chosen carefully.  The Gibbs Committee Draft Bill, s.7B(1) preferred "incitement" rather than spelling out "counsels, commands or advises".  There are differing verbs employed in this area with little consideration of what the differences, if any, may be.  The US Model Penal Code uses "encourages or requests" (s.5.02(1)).  Section 7A of the Commonwealth Crimes Act currently uses "incites to, urges, aids or encourages".  The English Draft Code (s.47(1)) and the Victorian Crimes Act (s.321G(1)), like the Gibbs proposal, use "incite" only.  The Canadian Draft Code collapses complicity and incitement, but refers to "advises, encourages, urges, incites".  From concern that some courts have interpreted “incites” as only requiring causing rather than advocating the offence the word “urges” is preferred as avoiding ambiguity.

The fault element that must be proved to establish the offence of incitement is intention.  That is, the person must intend the incited offence to be committed (43BI(2)).  However, as in the case of the offence of attempt, subclause 43BI(6) provides that any “special liability provision” that applies to an offence will also apply to the incitement offence.  Similarly, subclause 43BI(5) provides that any defences, procedures, limitations or qualifying provisions apply also to the offence of incitement in respect of that offence.
  
Consistent with the position taken in relation to attempt, 43BI(4) provides that a person may be found guilty of incitement even if the intended offence is impossible. 

For associated offences, the Commonwealth Explanatory Memorandum explained:

43BI(7)states that it should not be possible to be guilty of inciting to incite, inciting to conspire, or inciting to attempt.  There has to be some limit on preliminary offences.  This follows the position taken by the Gibbs Committee (paras 18.41-18.46) rather than that taken by the English Law Commission.  The Gibbs Committee did not think it necessary to include a provision to achieve the abolition of incitement to incite in its Bill (s.7B) but, given the intention to codify, it would appear to be necessary.

However, there will be no bar to a charge of attempting to incite.  The charge exists at common law (see Crichton [1915] SASR 1 and the English authority cited in Meehan, The Law of Criminal Attempt (1984) at 201, note 392).  This is primarily designed to deal with the situation in which a communication amounting to an incitement does not, for some reason, reach its intended recipient.  This is consistent with s.5.01(3) US Model Penal Code, and the English Law Commission, Attempt, para 2.121.

The maximum penalties that apply to the offence of incitement are set out in 43BI(7).  The Commonwealth Explanatory Memorandum explained:

The penalties have been graded to ensure that the penalty imposed for incitement properly reflects the gravity of the offence.  The penalties reflect those recommended by the Gibbs Committee in its July 1990 report which at page 243 described the current general penalty under section 7A of the Crimes Act 1914  which is only imprisonment for 12 months (or a fine of $6000 or both) as inadequate. 

43BJ 	Conspiracy

This provision will make it an offence for a person to conspire with another to commit an offence punishable by more than 1 year imprisonment or by a fine of 200 penalty units ($22,000) or more, or both.  An offence of conspiracy is punishable as if the conspired offence had been committed. 

The offence is limited to conspired offences punishable by more than 1 year imprisonment (or the monetary equivalent) because it is considered that the conspiracy offence should not apply to minor offences.

The Commonwealth Explanatory Memorandum explained the provisions of the conspiracy offence as follows: 

43BJ(2) provides that for the person to be guilty, the person must have entered into an agreement with one or more other persons and the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement and the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

43BJ(2)(a) & (b)] are drafted to clearly separate the agreement component of the conspiracy from the intent to commit an offence pursuant to that agreement.  It was decided that intention was required and that recklessness would not suffice.  This is in accordance with the proposals of the Gibbs Committee, (s.7D(1)(c)), and the common law (Gerakiteys (1983) 153 CLR 317).  The concept of recklessness is foreign to an offence based wholly on agreement.

The requirement of intention to commit the crime which was the object of agreement 43BJ(2)(b) will prevent conviction for conspiracy where, for example, the only parties to the agreement are the accused and an agent provocateur.

43BJ(2)(c) requires that the accused or at least one other party to the agreement committed an overt act pursuant to the agreement.  The view is taken that a simple agreement to commit a criminal offence without any further action by any of those party to the agreement is insufficient to warrant the attention of the criminal law.  The requirement of overt act is common in American law, see s.5.03(5) US Model Penal Code.  The requirement was criticised in some submissions on the basis that it is vague.  It is understood that the requirement works well in the American jurisdictions which have it and there is no reason to believe it will not work in Australia.

43BJ(4)(a) provides that a person may be found guilty of conspiracy to commit an offence even if committing the offence is impossible (this is consistent with attempt and incitement).

43BJ(4)(b)] provides that the person may be found guilty if the other party to the agreement is a body corporate.  It is well established at common law that a company can be guilty of conspiracy, see ICR Haulage [1944] 1 KB 551; Simmonds (1967) 51 Cr App R 316.  

It was decided that it should be possible for a person to commit a conspiracy even where the only other party to the agreement is a person for whose benefit the offence exists.  This is contained in paragraph 43BJ (4)(c).  An example would be an agreement between a child under the age of consent and an adult to commit the offence of unlawful sexual intercourse with the child.  [For similar reasons the paragraph also provides that a person can be guilty of a conspiracy even if the other parties to the agreement are not criminally responsible].     

43BJ(4)(d)provides that a person may be found guilty even though other parties to the alleged agreement have been acquitted of the conspiracy, unless a finding of guilt would be inconsistent with those acquittals....  This decision is in accord with Darby (1981) 148 CLR 668 and section 321B Crimes Act 1958 (Vic).  The Gibbs Committee concluded that the courts must not be hindered from examining the merits of what may be a quite complex situation by rules about formal inconsistencies on the face of the record.

On the other hand, under 43BJ(6), it was decided that the Code should provide that a person who is the protective object of an offence cannot be found guilty of a conspiracy to commit that offence.

43BJ(6) provides for disassociation from the offence.  Consistent with the requirement of an overt act, there should be a defence of withdrawal or disassociation, for there would be time between the agreement and the commission of the overt act for that to take place.  Unlike attempt and incitement, the disassociation here comes before there has been a criminal act.  In that case, the policy of encouraging people to desist from criminal activity prevails.  As for complicity, the requirement was changed from “making a reasonable effort” to taking “all reasonable steps” to prevent the commission of the offence agreed on.  Again, what amounts to taking all reasonable steps will vary from case to case.  Examples might include informing the other parties of the withdrawal, advising the intended victims and/or giving a timely warning to the appropriate law enforcement agency. 

43BJ(8) permits the use of all defences, principles, limitations or qualifying provisions that apply also to the offence of conspiracy to commit that offence.  

Consistent with the position of the Code concerning attempts and incitement 43BJ(a) provides that any “special liability provision” that applies to an offence will also apply to the conspiracy offence (see the commentary on subclause 44(6)).  

In the past the courts have been critical of the “overuse” of the conspiracy offence.  To address this concern 43BJ(7) allows a court to dismiss a conspiracy charge if it considers that the interests of justice require it to do so.  The most likely use of the power to dismiss will arise when the substantive offence could have been used, a criticism repeatedly voiced by the courts (see, for example, Hoar (1981) 148 CLR 32).  

In addition, 43BJ (10) provides that the consent of the Attorney-General or Director of Public Prosecutions must be obtained before conspiracy proceedings can be commenced.  However, in recognition of the urgent circumstances that may sometimes arise, 43BJ(11) provides that a person may be arrested, charged, remanded in custody or on bail before consent is given.    

Division 5	Corporate criminal responsibility

43BK	General Principles

This clause provides that the Code applies to companies in the same way as it applies to natural persons, subject to the modifications set out in Division 5 and any other modifications that may be necessary because criminal responsibility is being imposed on companies rather than natural persons.  The “other modifications” (not contained in this Division) will be developed by the courts as this area develops.  Essentially, this provision has the effect that the general principles of liability, such as the definition of conduct in 43AD and the definitions of the various fault elements in clauses Subdivision 3 and Division 2 (eg. recklessness in clause 20) apply to companies.  

As the Note suggests this clause should be read in conjunction with section 161 of the Legislation Act 2001 and, in particular with subsection 161(2), which provides that an offence provision can apply to a corporation even if the offence is punishable by imprisonment only.

43BL 	Physical elements

43BL to 43BN explain how the physical and fault elements of an offence are attributed to companies. 

43BL provides that a physical element of an offence consisting of conduct is taken to be committed by a company if it is committed by an employee, agent or officer of the company acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority.  A person’s actual or apparent authority may extend beyond the actual or apparent scope of his or her employment.   

As 43AE explains, a physical element of an offence may be conduct, a result of conduct or a circumstance in which conduct or a result occurs. 43BL only refers to a physical element “consisting of conduct”.  However, if an individual’s conduct is attributed to a company under this clause, the existence of any circumstance (relevant to the offence) in which his or her conduct happens will become a circumstance in which the attributed conduct of the company happens.  This will also be the case in relation to any requirement for a result of conduct.       

43BM 	Fault elements other than negligence

A company is taken to have a fault element of intention, knowledge or recklessness in relation to an offence if it expressly, tacitly or impliedly authorises or permits the commission of the offence.  43BM(2) sets out the ways in which it may be established that a company authorised or permitted the commission of an offence. 

The Commonwealth Explanatory Memorandum explained:

These include proving that the body corporate board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence 43BM(2)(a).

They also include proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence 43BM(2)(a).

According to 43BM(2)(a).and (b)] it may be shown that the conduct was performed or tolerated by the board of directors or a high managerial agent (defined as someone whose position in the company can be said to represent the policy of the company 43BM(b).  The test is based almost exactly on s.2.07(1)(c) US Model Penal Code.  It is envisaged that this provision will be used in one-off situations where it cannot be said that there is any ongoing authorisation of the conduct.  The company has a defence in the case of a high managerial agent if the company proves that it used due diligence to prevent the offence43BM(2)(c).  The defence is not available in the case of the board of directors itself.

A further means by which it may be proved that a body corporate authorised or permitted the commission of the offence is proof that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provisions 43BM(2)(c).

A final means of proving the authorisation or permission is proving the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision 43BM(2)(d).

43BM(4) provides that factors relevant to the corporate culture provisions include whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate and whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.

“Corporate culture” is defined in 43BM(b  to mean an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities take place.

43BM(2)(c)deals with the more elusive situation of implicit authorisation where the corporate culture encourages non-compliance or fails to encourage compliance.  The rationale for holding corporations liable on this basis is that "...the policies, standing orders, regulations and institutionalised practices of corporations are evidence of corporate aims, intentions and knowledge of individuals within the corporation.  Such regulations and standing orders are authoritative, not because any individual devised them, but because they have emerged from the decision making process recognised as authoritative within the corporation."  (See Field and Jorg, "Corporate Manslaughter and Liability: Should we be going Dutch?" [1991] Crim LR 156 at 159). 

The sub[clause] extends the Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 173 rule which recognises that corporations can be held primarily responsible for the conduct of very senior officers.  The rationale for this primary responsibility is that such an officer is acting as the company and the mind which directs his or her actions is the mind of the company.   

It extends the Tesco rule by allowing the prosecution to lead evidence that the company's unwritten rules tacitly authorised non-compliance or failed to create a culture of compliance.  It would catch situations where, despite formal documents appearing to require compliance, the reality was that non-compliance was expected.  For example, employees who know that if they do not break the law to meet production schedules (eg by removing safety guards on equipment), they will be dismissed.  The company would be guilty of intentionally breaching safety legislation.  Similarly, the corporate culture may tacitly authorise reckless offending (eg recklessly disregarding the substantial and unjustifiable risk of causing serious injury by removing the equipment guards).  The company would be guilty of a reckless endangerment offence. 

43BM(5) provides that if recklessness is not a fault element in relation to a physical element of an offence, 43BM(2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.

43BN 	Negligence

Where the relevant fault element of an offence is negligence and no individual employee, agent or officer of the company has that fault element, the company may be taken to be negligent if its conduct is negligent when viewed as a whole. 

The Commonwealth Explanatory Memorandum explained:

It is not necessary to establish that any one employee, etc was negligent.  If the conduct of the company when viewed as a whole (that is by aggregating the acts of its servants, agents, employees and officers), is negligent, then the corporation is deemed to be negligent.  In some cases this may involve balancing the acts of some servants against those of others in order to determine whether the company’s conduct as a whole was negligent.  This changes the common law on this point, see R v HM Coroner for East Kent; ex parte Spooner (1989) 88 Crim App R 10.  

43BN provides that the alleged negligence of a company may be evidenced by the fact that the prohibited conduct was substantially attributable to inadequate management, control or supervision of the conduct of one or more of its employees, agents or officers or failure to provide adequate systems for providing relevant information to relevant people in the company.  

43BO 	Mistake of fact – strict liability

This provision explains the mechanism by which a company can rely on the “mistake of fact defence” 43AX.  It provides that a company can only rely on the defence if the employee, agent or officer who carried out the conduct had a mistaken but reasonable belief about facts, which if they existed, would have meant that the conduct did not constitute an offence and the company proves that it exercised appropriate diligence to prevent the conduct.  This is consistent with the general approach of this Part on corporate criminal responsibility.  

This provision should be read with 43BN(4), which provides that the alleged failure of a company to exercise appropriate diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to inadequate management, control or supervision of the conduct of one or more of its employees, agents or officers or failure to provide adequate systems for providing relevant information to relevant people in the company. 

43BP 	Intervening conduct or event

43BP provides that a company cannot rely on the defence of “intervening conduct or event” 43BP on the ground that a physical element of an offence was brought about by another person, if the other person is an employee, agent or officer of the company.

Division 6	Proof of Criminal Responsibility

43BQ	Legal Burden of proof

The “legal burden” means the burden of proving the existence of the matter to which the burden relates.

43BR	Legal burden of proof - prosecution

This provision places on the prosecution the legal burden of proving every element of an offence relevant to the guilt of the person charged.  The prosecution also bears the legal burden of disproving any matter in relation to which the defendant has discharged any evidential burden of proof which has been imposed on the defendant.

The Commonwealth Explanatory Memorandum stated:

One of the most respectfully cited statements in the law texts is the description in Woolmington v Director of Public Prosecutions (1935) AC 462 by Lord Sankey of the duty of the prosecution to prove the prisoner's guilt as "the golden thread always to be seen throughout the web of the English Criminal Law".  Lord Sankey stated that the principle was subject to the special rules as to sanity and "subject also to any statutory exceptions".

Although it may seem unusual to include an apparently procedural issue in a chapter of the Code which deals with the general principles of responsibility, it is the combination of positive fault elements with the location of the burden of proving those elements on the prosecution that gives force to Woolmington.

43BS	Standard of proof - prosecution

This provision explains the standard of proof that applies to a legal burden of proof on the prosecution.  The general (default) rule is that a legal burden on the prosecution must be discharged beyond reasonable doubt, but legislation may apply a different standard to a particular offence.

43BT	Evidential burden of proof

The “evidential burden”, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.   

43BU	Evidential burden of proof - defence

This provision explains that the general rule is that where a burden of proof is cast on the defendant, it is an evidential burden only.  A defendant who wishes to deny criminal responsibility by relying on a provision of Division 3 bears an evidential burden in relation to that matter.  The general rule can be displaced, as provided by 43BU, which is explained below.

43BU(3) makes it clear that a defendant who wishes to rely on an exception, exemption, excuse, justification or qualification to an offence bears an evidential burden in relation to that matter.  The exception, exemption, excuse, qualification, or justification need not accompany the description of the offence in order to apply to that offence.  Similarly, the clause makes it clear that in the case of a strict liability offence that allows the defence of reasonable excuse, the defendant has an evidential burden in relation to the defence.  

A defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or the court.

The question whether an evidential burden has been discharged is one of law.  

The Commonwealth Explanatory Memorandum stated:

These provisions accord with basic principles accepted in all jurisdictions.  They have been reiterated by the High Court in He Kaw Teh (1984-5) 157 CLR 203.

There have been differences of opinion as to what onus is transferred to an accused.  For example, the defence of honest and reasonable mistake under the Griffith Codes only requires the accused to put the matter in issue, and the onus is on the prosecution to negative it: Loveday v Ayre and Ayre; Ex parte Ayre and Ayre (1955) St R Qd 264.  At common law, in offences not involving a mental element, it had been thought that the onus on the accused was persuasive: Maher v Musson (1934) 52 CLR 100, Proudman v Dayman (1041) 67 CLR at 541, until the High Court in He Kaw Teh v The Queen (1984-5) 157 CLR 523 aligned the common law position with that of the Code jurisdictions — (see pp. 535, 558-9, 574, 582 and 591-4).  It would also appear that there is greater scope at common law to remove a case from the jury because the question of whether an evidential onus is discharged is one of law, whereas in Griffith Codes jurisdictions even slight evidence would render the question one of fact for the jury.

43BV	Legal burden of proof - defence

43BV makes it clear that a burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly specifies that the burden of proof in relation to the matter in question is a legal burden, or requires the defendant to prove the matter, or creates a presumption that the matter exists unless the contrary is proved.

43BW	Standard of proof - defence

This provision explains the standard of proof for a legal burden of proof borne by a defendant.  The defendant’s legal burden must be discharged on the balance of probabilities.

43BX	Use of averments

This provision explains that a law which allows the prosecution to make an averment is taken not to allow the prosecution to aver any fault element of an offence. 

The Commonwealth Explanatory Memorandum explained:

Averment provisions in some legislation permit the prosecutor to allege matters of fact in an information or complaint.  The averment amounts to prima facie evidence of the matters averred.  The Griffith Codes did not contain averment provisions, although the Queensland Code now does (eg s.638) and the WA Code contains deeming provisions.  In the words of Dixon J in R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507-508, an averment provision:

“...does not place upon the accused the onus of disproving the fact upon which his guilt depends but, while leaving the prosecutor the onus, initial and final, of establishing the ingredients of the offence beyond reasonable doubt, provides, in effect, that the allegations of the prosecutor shall be sufficient in law to discharge that onus.”

The policy assumption underlying the Code is that averment provisions are generally inappropriate.  The Code provides that the prosecution must not aver the intention of the defendant or other fault elements expressed by the provision creating the offence.

Division 7	Geographical application

This Division applies NT offences beyond the territorial limits of the ACT in certain cases.  Following criticism of an earlier model (see Kirby J of the High Court describing the South Australian equivalent of section 3 as an “imperfect provision” (Lipohar [2000] 168 ALR 8)), the Model Criminal Code Officers Committee reviewed the regime in its report on Chapter 4 of the Code and Division.7 is now the recommended regime for enactment by the States and Territories.  

As the Commonwealth must have regard to different considerations in applying its law extraterritorially, the regime it has enacted is different to the regime recommended for the States and Territories.  Accordingly, the observations quoted below on the respective provisions of Part 2.7 are reproduced from Chapter 4 of the report of the Model Criminal Code Officers Committee entitled, “Damage and Computer Offences and Amendment to Chapter 2: Jurisdiction”.    

43BY	Application and effect of Division

This provision explains the purpose of the Division, which is to apply NT offences beyond the territory of the NT and Australia in cases where there is a  “geographical nexus” between the offence and the NT (43BY).  A geographical nexus is established if the offence is committed wholly or partly in the NT or if it is committed wholly outside the NT and the offence has an effect in the NT (see the commentary to  43CA). 

The Division will give extraterritorial effect to all NT offences unless the law that creates an offence expressly or implicitly excludes the operation of the division with respect to that particular offence.  For example where the law makes the location of the offence an element of the offence (such as a law that prohibits entry to a “restricted area” in the NT) or the law provides that the particular offence applies outside the NT whether or not there is a geographical nexus.  

43BZ	Interpretation for Division

43BZ defines what is meant by the terms “the place where an offence is committed” and “the place where an offence has an effect”, for the purposes of this Division, and in particular, for the definition of “geographical nexus” in 43CA(2)  

The Model Criminal Code Officers Committee explained at page 277:

The definition of the place where the offence is committed is defined to mean the place in which the physical elements of the offence occur.  This definition requires two comments.  First, it is meant to refer to any place in which any of the physical elements of the offence occur.  Offences may, both in current law and in the proposed law, occur in more than one place at any given time.  Second, the term “physical elements” is a technical term under the Code and refers to the definition of “physical elements” in [43AE] of Chapter 2 of the Model Criminal Code - that is, conduct, circumstances or results.

The definition of the place where an offence has an effect refers, inter alia, to any place whose “peace, welfare or good government” is threatened by the offence.  The phrase “peace, welfare or good government” has been used as a demarcation of the constitutional limitation placed upon the otherwise plenary legislative power of a State.  The High Court has indicated that “peace, welfare or good government” bears the same meaning as “peace, order or good government” [Union Steamship v King (1988) 166 CLR 1 at 9].

43CA	Extension of offences if required geographical nexus exists

This is the central provision of Division 7.  It provides that an offence against the law of the NT is committed if there is a geographical nexus between the NT and the offence and, leaving aside any geographical considerations, all physical and mental elements of the offence also exist.  A geographical nexus will exist in either of two ways.  First, it will exist if the offence is committed wholly or partly in the NT, regardless of whether it has an effect in the NT; or the offence is committed wholly outside the NT but it has an effect in the NT (43CA(2)).   
 
The Model Criminal Code Officers Committee explained at page 279:

This is the key section in which the essential changes to the current model are made.  It defines the necessary geographical nexus that must exist between the offence and the State or Territory claiming the power to try the offence.  The section simply claims power to try the offence if the offence is committed wholly or partly in the State or Territory (that is to say, one or more of the physical elements occur in the State or Territory) or, if no physical elements occur in the State or Territory, the offence has an effect (as defined above) in the State or Territory.

43CB	Geographical application - double criminality

This provision clarifies the extent to which NT offences will have extraterritorial application depending on whether an offence is partly committed in the NT or wholly committed outside the NT.  

If the conduct of a crime takes place partly in the NT and partly in another place (including another place outside Australia), the conduct will be an offence against NT law even if it is not an offence in that other place (43CB(1)).  If the relevant conduct takes place completely outside the NT (including outside Australia) the NT offence provisions will only apply in either of two cases; that is,

·	only if the conduct is also an offence where it is committed; or if it is not,
·	the tribunal of fact is satisfied that the offence is such a threat to the peace, welfare or good government of the NT that it justifies criminal punishment in the NT.      

The Model Criminal Code Officers Committee explained at page 279:

There is a good argument that, where no physical elements occur in the State or Territory, there should be a requirement that those who have acted entirely lawfully in the place where all of the elements of the offence occurred should not be exposed to criminal liability in another place unless that other place has such an overriding interest in the suppression of that particular conduct that the reach of the statute (via this [Division]) and hence the imposition of criminal liability is warranted.  This matter is dealt with in [43CB(2)(b)].  This is inevitably a question upon which no hard and fast rules can be devised, for this [Division] deals with a potentially enormous range of behaviours.  Moreover, the inherent vagueness of such a criterion is not unprecedented - for example, the key criterion of “dishonesty” in relation to a wide variety of offences in Chapter 3 [relating to crimes of theft, fraud, bribery and related offences] is similarly one which is notoriously incapable of precise delineation.    

43CC	Geographical application – procedure

43CC sets out procedural matters relating to the extraterritorial application of NT offences .  The Model Criminal Code Officers Committee explained at page 281:

These procedural provisions are a minor redraft of the existing SCAG model with no significant changes of substance.  The only change worthy of note is that it includes a provision dealing with the situation in which there is a problem of proving a geographical nexus and the jury would not acquit the defendant but would rather find him or her not guilty on the ground of mental impairment.  [43CC(2)(d)] clarifies the position by requiring a finding of not guilty on the grounds of mental impairment if they were the only grounds on which the trier of fact would have found the person not guilty of the offence.  This is necessary to ensure these cases are appropriately recognised because they do not involve an acquittal.

43CC(1) provides that the geographical nexus of an offence to the NT is presumed to exist unless rebutted by the defendant on the balance of probabilities.  

If a defendant disputes the existence of the geographical nexus, the court is required to proceed with the trial in the usual way and a determination as to whether the requisite nexus existed will be made by the tribunal of fact at the end of the trial (43CC(2)(a) and (b)).  If the issue is raised before the trial, the court must reserve the matter for consideration at the trial (43CC(5)).    

If at the end of the trial the tribunal of fact is satisfied on the balance of probabilities that the geographical nexus does not exist, it must return a finding to that effect and the court must dismiss the charge (paragraph 43CC(2)(b)).  However, if it finds the defendant not guilty for “non geographical considerations”, it must return a verdict of not guilty unless the only reason for this finding is the defendant’s mental impairment, in which case it must return a verdict of not guilty on account of the defendant’s mental impairment (43CC(2)(c) and (d)).

In some cases it is open to the court to make a determination about a defendant’s guilt or innocence for an offence not charged before trial but for which the law allows the tribunal of fact to bring in an alternative verdict.  In such cases the provisions of this clause also apply to alternative verdicts (43CC(3)) and the tribunal of fact may return a finding of guilt for the alternative offence unless it is satisfied on the balance of probabilities that the geographical nexus does not exist for the alternative offence (43CC(4)).    

43CD	Geographical application – suspicion etc that offence committed

This provision explains that a person who may exercise a function under law if he or she suspects or believes (as the case may be) on reasonable grounds that an offence has been committed, can perform that function whether or not he or she has any suspicion or belief about whether the geographical nexus exists for the offence.  This is consistent with the provisions of 43CC which assign the matter of geographical nexus to be decided at trial by the tribunal of fact.    

Clause 8.	Repeal and substitution of Part VI, Division 2 Heading.

This clause repeals the current heading of Part VI Division 2 and replaces it with a heading that will be consistent with the offences in the Division following the repeal of section 154.

Clause 9.	Repeal of section 154.

This clause repeals section 154.  Section 154 provided for offences concerning dangerous acts or omissions.  Following the enactment of the new manslaughter offence (see clause 11 below) and reckless endangerment, negligent harm and culpable driving offences (see clause 13 below) section 154 is no longer required. 

Clause 10.		Repeal and substitution of section 163 (Manslaughter).

This clause repeals the current section 163 crime of manslaughter and substitutes a new section 163 crime of manslaughter.  Under the present Code structure the crime of manslaughter arises in two circumstances.  First, where the fault element for murder has been made out but culpability is lowered because a partial excuse has been made out (for example provocation).  Secondly, manslaughter arises where the prosecution can prove that the accused foresaw the victim’s death as a consequence of his or her conduct.  The current section 163 crime of manslaughter is considerably narrower than in other jurisdictions because it requires a subjective mental state rather than the objective state imposed by criminal negligence standards that apply at common law and under the other codes for this crime.

Under the new provision, in addition to manslaughter existing as an alternative to murder following a partial excuse, a person will be guilty of the crime of manslaughter if he or she engages in conduct that causes the death of another person and is either reckless or negligent as to causing the death by that conduct.  The standard for negligence is a criminal standard.  The standards for recklessness and negligence are provided in new Part IIAA.  

Clause 11.	Repeal of section 167.

This clause repeals section 167.  Section 167 provided for the punishment for manslaughter.  A separate provision is no longer required because the punishment for the crime is contained within the new section 163.

Clause 12	New Part VI, Division 3A

This clause creates a new Part VI, Division 3A in the Code that provides for new offences following the repeal of section 154.
Subdivision 1 - Interpretation

174A	Causing death or harm

The Model Criminal Code Officers Committee was of the view that the objective of this area of law (offences against the person) should be to protect the physical and mental integrity of the victim, and should therefore be focused primarily on protection from harm and the fault by which the harm is caused.  The model provisions therefore dispense with the traditional approach of focusing on specific type of act by which the harm was caused, for example “assault” or “wounding” and are cast instead in terms of “causing” the prohibited consequences.  174A is a provision that applies to the offences for which causing death or harm is an element and it provides for circumstances in which a person’s conduct will be taken to have caused death or harm.  A person’s conduct causes death or harm if it substantially contributes to the death or harm.  

174B	Danger of death or serious harm

This provision deals with the type of conduct that may give rise to a danger of death or serious harm for the purpose of the endangerment provisions of this Division.  Specific reference to the risk of catching a disease is made to make criminal the endangerment of the life or health of another by the reckless transmission of a disease or the disposition to develop such a disease.  HIV/AIDS and asbestosis are mentioned by MCCOC as obvious examples.

174B(3) is provided to avoid the use of mathematical assessments of risk being used to obscure the question of whether or not a risk was a ‘real’ one.  174B(4) provides that it is not necessary for the prosecution to prove that a person was actually placed in danger of death or serious harm.  This is because the focus of the endangerment offences is to punish great risk taking and not the creation of the risk itself.  174B(1) deals with the degree of danger that is required, providing that it must be a real and not merely theoretical danger of death or serious harm.  
Subdivision 2 - Offences

174C	Recklessly endangering life

This provision creates an offence where a person engages in conduct that gives rise to a danger of death and is reckless as to the danger of death arising from his or her conduct.  Combined with 174A it defines an offence where there is conduct that creates a substantial risk that is known to be unjustifiable.

174D	Recklessly endangering serious harm

The offence created by this provision is identical to that under 174D except that level of endangerment is serious harm not death.

174E	Negligently causing serious harm

The level of negligence required for this offence is the same as that required from criminal negligence manslaughter, that is, it requires a higher level of culpability than the civil standard.  It follows the test for criminal negligence approved by the High Court in Wilson (1992) 61 A Crim R 63.  The MCCOC considered the creation of such an offence necessary to criminalize instances of gross negligence that cause serious harm such as the removal of safety equipment from the work place.

174F	Driving motor vehicle causing death or serious harm

This provision will create a specific offence of causing death or serious harm by driving a motor vehicle dangerously.  Driving dangerously includes being under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vehicle, driving at a speed that is dangerous or driving in a manner that is dangerous to another person.  

These offences are designated as strict liability offences.  This standard is consistent with similar offences in other jurisdictions.  That is no fault element is required to be proved only the objective physical elements.  A defence of mistake of fact is however available.

MCCOC did not recommend a specific offence in relation to causing death or serious harm by driving.  It is notable however that all other States and the ACT do criminalize this conduct, generally by strict liability offences.  (see for example Jiminez (1992) 173 CLR 572).  In the Northern Territory this conduct was previously prosecuted under the section 153 Dangerous Act provision.

The creation of this offence does not preclude the prosecution of cases where death or serious harm results from conduct in driving a vehicle under more serious criminal offences, for example as manslaughter by recklessness or negligence and may act as an alternative charge on such prosecutions.

Subdivision 3 – Aggravated Offences

174G	Increased penalty for an aggravated offence

174H provides a list of circumstances in which the offence may be considered to be aggravated.  If an offence is found to be an aggravated offence then an increased maximum penalty applies.

174H	Procedure for proving aggravated offence

The relevant circumstances of aggravation are required to be contained in the charge where the prosecution intends to prove an aggravated offence.  The relevant fault element in relation to circumstances of aggravation is intention or recklessness as defined in Part IIAA.  

Clause 13.	Repeal and substitution of Part VI, Division 4 heading.

This clause repeals the current heading of Part VI Division 4 and replaces it with a new heading – “Other offences endangering life or health”.

Clause 14.	Amendment of section 192 (sexual intercourse and gross indecency without consent).

This clause amends the current offence provided by section 192 -Sexual intercourse and gross indecency without consent.  A person will now be guilty of a crime if the person has sexual intercourse with or commits an act of gross indecency on another person without that persons consent and knowing about or being reckless as to the lack of consent.

The existing section 192 offence interacted with section 31 of the Code to produce the result that the prosecution must prove that the accused intended the act of having sexual intercourse without consent (Director of Public Prosecutions v WJI [2004 HCA 47).  That is the requisite fault element is an intention to have non consensual sexual intercourse.  If the defendant believed that the victim was consenting he would lack the intention to have non consensual sexual intercourse regardless of the unreasonableness as to that belief.  In addition, if an accused did not turn his mind at all to the question of consent then he could not be found to have intended sexual intercourse without consent.  

A defence of mistake will still be available in relation to the issue of consent however unlike the previous offence to which section 31 applied, such a mistake must be a reasonable one.  

Clause 15.	Amendment of section 316 (Indictment containing count of murder or manslaughter).

On an indictment charging manslaughter the offence of causing death by driving dangerously may be an alternative count.

Clause 16.	Amendment of section 318 (Charge of offence against the person where section 31 or intoxication is a defence).

Section 318 is amended to reflect that section 31 no longer applies to the offence of manslaughter.
Clause 17.	New Part XI.

This clause inserts a new Part to provide for transitional matters to make clear that the Code as in force immediately prior to the commencement of this Act applies in relation to offences committed before commencement.

Clause 18.	New Schedule 1.

This clause inserts a Schedule into the Code that provides for the offences to which the new criminal responsibility Part IIAA will apply.

Clause 19.	Further amendments.

A formal clause to provide that Schedule 1 has effect.  

Clause 20.	Amendment of Dangerous Goods Act.

This clause makes some consequential amendments in relation to the change from the term “grievous harm” to “serious harm”.

Clause 21.	Amendment of subordinate legislation.

This clause provides for a Schedule to the Bill to make some consequential amendments to subordinate legislation in relation to the change from the term “grievous harm” to “serious harm”.

Word Version:               PDF Version:     

PLEASE NOTE THAT THE EXPLANATORY STATEMENT FOLLOWS AFTER THE TEXT OF THE BILL

Serial 7
Criminal Code Amendment (Criminal Responsibility Reform) Bill (No. 2) 2005
Dr Toyne

A BILL
for
AN ACT
to amend the Criminal Code in relation to criminal responsibility and to make consequential amendments of other legislation

NORTHERN TERRITORY OF AUSTRALIA
CRIMINAL CODE AMENDMENT (CRIMINAL RESPONSIBILITY REFORM) ACT 2005
____________________
Act No. [   ] of 2005
____________________

TABLE OF PROVISIONS
   Section
PART 1 – PRELIMINARY MATTERS
	1.	Short title
	2.	Commencement
PART 2 – AMENDMENT OF CRIMINAL CODE
	3.	Principal Act amended
	4.	Amendment of section 1 (Definitions)
	5.	New section 1A
1A.	Harm
	6.	Amendment of section 31 (Unwilled act etc. and accident)
	7.	New Part IIAA
PART IIAA – CRIMINAL RESPONSIBILITY FOR SCHEDULE 1 OFFENCES AND DECLARED OFFENCES
Division 1 – Preliminary matters
43AA.	Application of this Part and relationship with Parts I and II
Division 2 – Elements of offence
Subdivision 1 – General matters
43AB.	Elements
43AC.	Establishing guilt of offences
Subdivision 2 – Physical elements
43AD.	Conduct and engaging in conduct
43AE.	Physical elements
43AF.	Voluntariness
43AG.	Omissions
Subdivision 3 – Fault elements
43AH.	Fault elements
43AI.	Intention
43AJ.	Knowledge
43AK.	Recklessness
43AL.	Negligence
43AM.	Offences that do not provide fault elements
Subdivision 4 – Cases where fault elements are not required
43AN.	Strict liability
43AO.	Absolute liability
Division 3 – Circumstances in which there is no criminal responsibility
Subdivision 1 – Lack of capacity of children
43AP.	Children under 10
43AQ.	Children over 10 but under 14
Subdivision 2 – Intoxication
43AR.	Self-induced intoxication
43AS.	Intoxication – offences involving basic intent
43AT.	Intoxication – negligence as fault element
43AU.	Intoxication – relevance to defences
43AV.	Involuntary intoxication
Subdivision 3 – Mistake or ignorance
43AW.	Mistake or ignorance of fact – fault elements other than negligence
43AX.	Mistake of fact – strict liability
43AY.	Mistake or ignorance of law
43AZ.	Claim of right
Subdivision 4 – External factors
43BA.	Intervening conduct or event
43BB.	Duress
43BC.	Sudden or extraordinary emergency
43BD.	Self-defence
43BE.	Lawful authority
Division 4 – Extensions of criminal responsibility
43BF.	Attempt
43BG.	Complicity and common purpose
43BH.	Innocent agency
43BI.	Incitement
43BJ.	Conspiracy
Division 5 – Corporate criminal responsibility
43BK.	General principles
43BL.	Physical elements
43BM.	Fault elements other than negligence
43BN.	Negligence
43BO.	Mistake of fact – strict liability
43BP.	Intervening conduct or event
Division 6 – Proof of criminal responsibility
43BQ.	Legal burden of proof
43BR.	Legal burden of proof – prosecution
43BS.	Standard of proof – prosecution
43BT.	Evidential burden of proof
43BU.	Evidential burden of proof – defence
43BV.	Legal burden of proof – defence
43BW.	Standard of proof – defence
43BX.	Use of averments
Division 7 – Geographical application
43BY.	Application and effect of Division
43BZ.	Interpretation for Division
43CA.	Extension of offences if required geographical nexus exists
43CB.	Geographical application – double criminality
43CC.	Geographical application – procedure
43CD.	Geographical application – suspicion etc. that offence committed
	8.	Repeal and substitution of Part VI, Division 2 heading
Division 2 – Provision of rescue, medical treatment and other aid
	9.	Repeal of section 154
	10.	Repeal and substitution of section 163
163.	Manslaughter
	11.	Repeal of section 167
	12.	New Part VI, Division 3A
Division 3A – Recklessly endangering life and serious harm, negligently causing serious harm and death or serious harm involving motor vehicles
Subdivision 1 – Interpretation
174A.	Causing death or harm
174B.	Danger of death or serious harm
Subdivision 2 – Offences
174C.	Recklessly endangering life
174D.	Recklessly endangering serious harm
174E.	Negligently causing serious harm
174F.	Driving motor vehicle causing death or serious harm
Subdivision 3 – Aggravated offences
174G.	Increased penalty for aggravated offence
174H.	Procedure for proving aggravated offence
	13.	Repeal and substitution of Part VI, Division 4 heading
Division 4 – Other offences endangering life or health
	14.	Amendment of section 192 (Sexual intercourse and gross indecency without consent)
	15.	Amendment of section 316 (Indictment containing count of murder or manslaughter)
	16.	Amendment of section 318 (Charge of offence against the person where section 31 or intoxication is a defence)
	17.	New Part XI
PART XI – TRANSITIONAL MATTERS FOR CRIMINAL CODE AMENDMENT (CRIMINAL RESPONSIBILITY REFORM) ACT 2005
444.	Application of Code to pre-commencement offences
	18.	New Schedule 1
SCHEDULE 1
	19.	Further amendments
PART 3 – AMENDMENT OF OTHER LEGISLATION
	20.	Amendment of Dangerous Goods Act
	21.	Amendment of subordinate legislation
SCHEDULE 1
SCHEDULE 2

NORTHERN TERRITORY OF AUSTRALIA
____________________
Act No. [   ] of 2005
____________________

AN ACT
to amend the Criminal Code in relation to criminal responsibility and to make consequential amendments of other legislation
[Assented to [   ] 2005]
[Second reading [   ] 2005]
The Legislative Assembly of the Northern Territory enacts as follows:
PART 1 – PRELIMINARY MATTERS
1.	Short title
	This Act may be cited as the Criminal Code Amendment (Criminal Responsibility Reform) Act 2005.
2.	Commencement
	This Act comes into operation on the date fixed by the Administrator by notice in the Gazette.
PART 2 – AMENDMENT OF CRIMINAL CODE
3.	Principal Act amended
	This Part amends the Criminal Code.
4.	Amendment of section 1 (Definitions)
(1)	Section 1, definitions of "bodily harm" and "grievous harm" –
	omit
(2)	Section 1 –
	insert (in alphabetical order)
"aggravated offence", for Part VI, Division 3A, means an offence against section 174C or 174D that is an aggravated offence under Subdivision 3 of that Division;
"conduct", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AD(1);
"death" means –
(a)	the irreversible cessation of all function of a person's brain, including the brain stem; or
(b)	the irreversible cessation of circulation of blood in a person's body;
"declared offence" means an offence against a law of the Territory that, under an Act, is declared to be an offence to which this Part applies;
"engage in conduct", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AD(2);
"evidential burden", for Part IIAA and Schedule 1 provisions, has the meaning in section 43BT;
"fault element", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AH;
"fault element of basic intent", for Part IIAA and Schedule 1 provisions, means a fault element of intention for a physical element that consists only of conduct;
"harm" has the meaning in section 1A;
"intention", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AI;
"intoxication", for Part IIAA and Schedule 1 provisions, means intoxication because of the influence of alcohol, a drug or any other substance;
"knowledge", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AJ;
"legal burden", for Part IIAA and Schedule 1 provisions, has the meaning in section 43BQ;
"negligent", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AL;
"physical element", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AE;
"reckless", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AK;
"Schedule 1 offence" means an offence against a Schedule 1 provision;
"Schedule 1 provision" means a provision of this Code specified in Schedule 1;
"self-induced intoxication", for Part IIAA, has the meaning in section 43AR;
"serious harm" means any harm (including the cumulative effect of more than one harm) –
(a)	that endangers, or is likely to endanger, a person's life; or
(b)	that is or is likely to be significant and longstanding;
"special liability provision" means a provision providing that –
(a)	absolute liability applies to one or more (but not all) of the physical elements of an offence; or
(b)	in a prosecution for an offence, it is not necessary to prove that the defendant knew something; or
(c)	in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed something;
5.	New section 1A
	After section 1 –
	insert
1A.	Harm
	(1)	Harm is physical harm or harm to a person's mental health, whether temporary or permanent.
	(2)	Physical harm includes unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that a person might reasonably object to in the circumstances, whether or not the person was aware of it at the time.
	(3)	Harm to a person's mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.
	(4)	Harm does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.
6.	Amendment of section 31 (Unwilled act etc. and accident)
	Section 31(3) –
	omit
	154 or
7.	New Part IIAA
	After section 43 –
	insert
PART IIAA – CRIMINAL RESPONSIBILITY FOR SCHEDULE 1 OFFENCES AND DECLARED OFFENCES
Division 1 – Preliminary matters
43AA.  Application of this Part and relationship with Parts I and II
	(1)	This Part applies only in relation to Schedule 1 offences, and declared offences, committed on or after the commencement of the Part.
	(2)	The following provisions of Part I do not apply in relation to Schedule 1 offences, or declared offences, committed on or after the commencement of this Part:
(a)	section 1 (Definitions), definitions of "act", "duress", "knowingly" and "involuntary intoxication";
(b)	section 2 (Commission of offence);
(c)	section 3 (Division of offences);
(d)	section 4 (Attempts to commit offences);
(e)	section 7 (Intoxication);
(f)	section 8 (Offences committed in prosecution of common purpose);
(g)	section 9 (Mode of execution different from that counselled);
(h)	section 12 (Abettors and accessories before the fact);
(i)	section 15 (Application of criminal laws);
(j)	section 16 (Offences counselled or procured in the Territory to be committed out of the Territory).
	(3)	Part II does not apply in relation to Schedule 1 offences, or declared offences, committed on or after the commencement of this Part.
Note –
Because of the limited application of this Part, terms defined in this Part have the meaning given to them only in this Part and in the Schedule 1 provisions. For example, the meaning given to the term "conduct" in section 43AD(1) applies only in this Part and the Schedule 1 provisions – see the signposted definition of that term in section 1.
Division 2 – Elements of offence
Subdivision 1 – General matters
43AB.  Elements
	(1)	An offence consists of physical elements and fault elements.
	(2)	However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
	(3)	The law that creates the offence may provide different fault elements for different physical elements.
43AC.  Establishing guilt of offences
	A person must not be found guilty of committing an offence unless the following is proved:
(a)	the existence of the physical elements of the offence that are, under the law creating the offence, relevant to establishing guilt;
(b)	for each of the physical elements for which a fault element is required, one of the fault elements for the physical element.
Subdivision 2 – Physical elements
43AD.  Conduct and engaging in conduct
	(1)	Conduct is an act, an omission to perform an act or a state of affairs.
(2)	Engage in conduct is to –
(a)	perform an act; or
(b)	omit to perform an act.
43AE.  Physical elements
	A physical element of an offence may be –
(a)	conduct; or
(b)	a result of conduct; or
(c)	a circumstance in which conduct, or a result of conduct, happens.
43AF.  Voluntariness
	(1)	Conduct can only be a physical element if it is voluntary.
	(2)	Conduct is only voluntary if it is a product of the will of the person whose conduct it is.
Examples of conduct that is not voluntary –
1.	A spasm, convulsion or other unwilled bodily movement.
2.	An act performed during sleep or unconsciousness.
3.	An act performed during impaired consciousness depriving the person of the will to act.
	(3)	An omission to perform an act is only voluntary if the act omitted is an act the person can perform.
	(4)	If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.
	(5)	Evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary.
43AG.  Omissions
	(1)	An omission to perform an act can only be a physical element if the law creating the offence –
(a)	makes it a physical element; or
(b)	impliedly provides that the offence is committed by an omission to perform an act that, by law, there is a duty to perform.
	(2)	However, an omission to perform an act can be a physical element of an offence against a Schedule 1 provision if it is a person's omission to perform any of the duties referred to in Part VI, Division 1.
	(3)	The fault element for an omission to perform an act referred to in subsection (2) that causes, or that gives rise to danger of, death or harm is, if not otherwise specified in the Schedule 1 provision, the same as the fault element for the result of the omission.
Note for section 43AG –
In the absence of subsection (3), the fault element for the conduct consisting of an omission to perform an act would be intention under the default provision in section 43AM(1). Generally in relation to Schedule 1 offences, the fault element for acts that cause etc. death or harm is not specified but the fault element for the result concerned is specified as either intention, recklessness or negligence.
Subdivision 3 – Fault elements
43AH.  Fault elements
	(1)	A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
	(2)	Subsection (1) does not prevent the law that creates an offence from specifying other fault elements for a physical element of the offence.
43AI.  Intention
	(1)	A person has intention in relation to conduct if the person means to engage in that conduct.
	(2)	A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
	(3)	A person has intention in relation to a circumstance if the person believes that it exists or will exist.
43AJ.  Knowledge
	A person has knowledge of a result or circumstance if the person is aware that it exists or will exist in the ordinary course of events.
43AK.  Recklessness
	(1)	A person is reckless in relation to a result if –
(a)	the person is aware of a substantial risk that the result will happen; and
(b)	having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
	(2)	A person is reckless in relation to a circumstance if –
(a)	the person is aware of a substantial risk that the circumstance exists or will exist; and
(b)	having regard to the circumstances known to the person, it is unjustifiable to take the risk.
	(3)	The question whether taking a risk is unjustifiable is one of fact.
	(4)	If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
43AL.  Negligence
	A person is negligent in relation to a physical element of an offence if the person's conduct involves –
(a)	such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b)	such a high risk that the physical element exists or will exist,
that the conduct merits criminal punishment for the offence.
43AM.  Offences that do not provide fault elements
	(1)	If a law that creates an offence does not provide a fault element for a physical element that consists only of conduct, intention is the fault element for the physical element.
	(2)	If a law that creates an offence does not provide a fault element for a physical element that consists of a result or circumstance, recklessness is the fault element for the physical element.
Note for subsection (2) –
Under section 43AK(4), recklessness can be established by proving intention, knowledge or recklessness.
Subdivision 4 – Cases where fault elements are not required
43AN.  Strict liability
	(1)	If a law that creates an offence provides that an offence is an offence of strict liability –
(a)	there are no fault elements for any of the physical elements of the offence; and
(b)	the defence of mistake of fact under section 43AX is available.
	(2)	If a law that creates an offence provides that strict liability applies to a particular physical element of an offence –
(a)	there are no fault elements for that physical element; and
(b)	the defence of mistake of fact under section  43AX is available in relation to that physical element.
	(3)	The existence of strict liability does not make any other defence unavailable.
43AO.  Absolute liability
	(1)	If a law that creates an offence provides that an offence is an offence of absolute liability –
(a)	there are no fault elements for any of the physical elements of the offence; and
(b)	the defence of mistake of fact under section  43AX is unavailable.
	(2)	If a law that creates an offence provides that absolute liability applies to a particular physical element of an offence –
(a)	there are no fault elements for that physical element; and
(b)	the defence of mistake of fact under section  43AX is unavailable in relation to that physical element.
	(3)	The existence of absolute liability does not make any other defence unavailable.
Division 3 – Circumstances in which there is no criminal responsibility
Subdivision 1 – Lack of capacity of children
43AP.  Children under 10
	A child under 10 years old is not criminally responsible for an offence.
43AQ.  Children over 10 but under 14
	(1)	A child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.
	(2)	The question whether a child knows that his or her conduct is wrong is one of fact.
	(3)	The burden of proving that a child knows that his or her conduct is wrong is on the prosecution.
Subdivision 2 – Intoxication
43AR.  Self-induced intoxication
	(1)	Intoxication is self-induced unless it came about –
(a)	involuntarily; or
(b)	as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or
(c)	from the use of a drug for which a prescription is required and that was used in accordance with the directions of the medical practitioner or dentist who prescribed it; or
(d)	from the use of a drug for which no prescription is required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer.
	(2)	However, intoxication is self-induced if a person using a drug as referred to in subsection (1)(c) or (d) knew, or had reason to believe, when the person took the drug that the drug would significantly impair the person's judgment or control.
43AS.  Intoxication – offences involving basic intent
	(1)	Evidence of self-induced intoxication cannot be considered in determining whether a fault element of basic intent existed.
Note for subsection (1) –
A fault element of intention in relation to a result or circumstance is not a fault element of basic intent.
	(2)	This section does not prevent evidence of self-induced intoxication being taken into consideration in determining whether conduct was accidental.
	(3)	This section does not prevent evidence of self-induced intoxication being taken into consideration in determining whether a person had a mistaken belief about facts if the person had considered whether or not the facts existed.
	(4)	A person may be regarded as having considered whether or not facts existed if –
(a)	he or she had considered, on a previous occasion, whether those facts existed in circumstances surrounding that occasion; and
(b)	he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
43AT.  Intoxication – negligence as fault element
	(1)	If negligence is a fault element for a particular physical element of an offence, in determining whether that fault element existed in relation to a person who is intoxicated, regard must be had to the standard of a reasonable person who is not intoxicated.
	(2)	However, if intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.
43AU.  Intoxication – relevance to defences
	(1)	If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in determining whether that knowledge or belief existed.
	(2)	However, if –
(a)	each physical element of an offence has a fault element of basic intent; and
(b)	any part of a defence is based on actual knowledge or belief,
evidence of self-induced intoxication cannot be considered in determining whether that knowledge or belief existed.
	(3)	If any part of a defence is based on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.
	(4)	If a person's intoxication is not self-induced, in determining whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.
43AV.  Involuntary intoxication
	A person is not criminally responsible for an offence if the person's conduct constituting the offence was as a result of intoxication that was not 
self-induced.
Subdivision 3 – Mistake or ignorance
43AW.  Mistake or ignorance of fact – fault elements other than negligence
	(1)	A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if –
(a)	at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b)	the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.
	(2)	In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
43AX.  Mistake of fact – strict liability
	(1)	A person is not criminally responsible for an offence that has a physical element for which there is no fault element if –
(a)	at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed and was under a mistaken but reasonable belief about those facts; and
(b)	had those facts existed, the conduct would not have constituted an offence.
	(2)	A person may be regarded as having considered whether or not facts existed if –
(a)	he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b)	he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
Note for section 43AX –
Section 43AO(2) prevents this section applying in situations of absolute liability.
43AY.  Mistake or ignorance of law
	(1)	A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, the person is mistaken about, or ignorant of, the existence or content of a law that creates the offence.
	(2)	However, the person is not criminally responsible for the offence if –
(a)	the law creating the offence expressly or impliedly provides that a person is not criminally responsible for the offence in those circumstances; or
(b)	the person's ignorance or mistake negates a fault element applying to a physical element of the offence.
	(3)	In addition, if the law creating the offence is a statutory instrument, the person is not criminally responsible for the offence if, at the time of the conduct constituting the offence, the statutory instrument –
(a)	was not known to the person; and
(b)	had not been published in the Gazette or otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence.
43AZ.  Claim of right
	(1)	A person is not criminally responsible for an offence that has a physical element relating to property if –
(a)	at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b)	the existence of that right would negate a fault element for any physical element of the offence.
	(2)	A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that the person mistakenly believes to exist.
	(3)	This section does not negate criminal responsibility for an offence relating to the use of force against a person.
Subdivision 4 – External factors
43BA.  Intervening conduct or event
	A person is not criminally responsible for an offence that has a physical element to which absolute liability or strict liability applies if –
(a)	the physical element is brought about by another person over whom the person has no control or by a non-human act or event over which the person has no control; and
(b)	the person could not reasonably be expected to guard against the bringing about of that physical element.
43BB.  Duress
	(1)	A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence under duress.
	(2)	A person carries out conduct under duress only if the person reasonably believes that –
(a)	a threat has been made that will be carried out unless an offence is committed; and
(b)	there is no reasonable way that the threat can be rendered ineffective; and
(c)	the conduct is a reasonable response to the threat.
	(3)	However, the person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating to carry out conduct of the kind actually carried out.
43BC.  Sudden or extraordinary emergency
	(1)	A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
	(2)	This section applies only if the person carrying out the conduct reasonably believes that –
(a)	circumstances of sudden or extraordinary emergency exist; and
(b)	committing the offence is the only reasonable way to deal with the emergency; and
(c)	the conduct is a reasonable response to the emergency.
43BD.  Self-defence
	(1)	A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
	(2)	A person carries out conduct in self-defence only if –
(a)	the person believes the conduct is necessary –
(i)	to defend himself or herself or another person; or
(ii)	to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
(iii)	to protect property from unlawful appropriation, destruction, damage or interference; or
(iv)	to prevent criminal trespass to any land or premises; or
(v)	to remove from any land or premises a person who is committing criminal trespass; and
(b)	the conduct is a reasonable response in the circumstances as he or she perceives them.
	(3)	However, the person does not carry out conduct in self-defence if –
(a)	the person uses force that involves the intentional infliction of death or serious harm –
(i)	to protect property; or
(ii)	to prevent criminal trespass; or
(iii)	to remove a person who is committing criminal trespass; or
(b)	the person is responding to lawful conduct that the person knew was lawful.
	(4)	Conduct is not lawful for subsection (3)(b) merely because the person carrying it out is not criminally responsible for it.
43BE.  Lawful authority
	A person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.
Division 4 – Extensions of criminal responsibility
43BF.  Attempt
	(1)	A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and, unless otherwise provided, is punishable as if the offence attempted had been committed.
	(2)	For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence.
	(3)	The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
	(4)	For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
Note for subsection (4) –
Under section 43AC, only one of the fault elements of intention or knowledge would need to be established in relation to each physical element of the offence attempted.
	(5)	Subsection (4) has effect subject to subsection (9).
	(6)	A person may be found guilty even if –
(a)	committing the offence attempted is impossible; or
(b)	the person actually committed the offence attempted.
	(7)	A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.
	(8)	Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.
	(9)	Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.
	(10)	It is not an offence to attempt to commit an offence against section 43BG or 43BJ.
43BG.  Complicity and common purpose
	(1)	A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
	(2)	For the person to be guilty –
(a)	the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b)	the offence must have been committed by the other person.
	(3)	For the person to be guilty, the person must have intended that –
(a)	the person's conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b)	the person's conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
	(4)	Subsection (3) has effect subject to subsection (7).
	(5)	A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person –
(a)	terminated his or her involvement; and
(b)	took all reasonable steps to prevent the commission of the offence.
	(6)	A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty.
	(7)	Any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of that offence.
43BH.  Innocent agency
	(1)	A person is taken to have committed an offence if –
(a)	the person procures someone else to engage in conduct that (whether or not together with conduct engaged in by the person) makes up the physical elements of the offence consisting of conduct; and
(b)	any physical element of the offence consisting of a circumstance exists; and
(c)	any physical element of the offence consisting of a result of the conduct happens; and
(d)	when the person procured the other person to engage in the conduct, the person had the fault element applying to each physical element of the offence.
	(2)	To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.
43BI.  Incitement
	(1)	A person who urges the commission of an offence is guilty of the offence of incitement.
	(2)	For the person to be guilty, the person must intend that the offence incited be committed.
	(3)	Subsection (2) has effect subject to subsection (6).
	(4)	A person may be found guilty even if committing the offence incited is impossible.
	(5)	Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in relation to that offence.
	(6)	Any special liability provisions that apply to an offence apply also to the offence of incitement in relation to that offence.
	(7)	It is not an offence to incite the commission of an offence against section 43BF, this section or section 43BJ.
Penalty:
(a)	if the offence incited is punishable by life imprisonment – imprisonment for 10 years; or
(b)	if the offence incited is punishable by imprisonment for 14 years or more, but is not punishable by life imprisonment – imprisonment for 7 years; or
(c)	if the offence incited is punishable by imprisonment for 10 years or more, but is not punishable by imprisonment for 14 years or more – imprisonment for 5 years; or
(d)	if the offence is otherwise punishable by imprisonment – imprisonment for 3 years or for the maximum term of imprisonment for the offence incited, whichever is the lesser; or
(e)	if the offence incited is not punishable by imprisonment – the number of penalty units equal to the maximum number of penalty units applicable to the offence incited.
43BJ.  Conspiracy
	(1)	A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
	(2)	For the person to be guilty –
(a)	the person must have entered into an agreement with one or more other persons; and
(b)	the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c)	the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
	(3)	Subsection (2) has effect subject to subsection (8).
	(4)	A person may be found guilty of conspiracy to commit an offence even if –
(a)	committing the offence is impossible; or
(b)	the only other party to the agreement is a body corporate; or
(c)	each other party to the agreement is at least one of the following:
(i)	a person who is not criminally responsible;
(ii)	a person for whose benefit or protection the offence exists; or
(d)	subject to subsection (5)(a), all other parties to the agreement have been acquitted of the conspiracy.
	(5)	A person cannot be found guilty of conspiracy to commit an offence if –
(a)	all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or
(b)	he or she is a person for whose benefit or protection the offence exists.
	(6)	A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person –
(a)	withdrew from the agreement; and
(b)	took all reasonable steps to prevent the commission of the offence.
	(7)	A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
	(8)	Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
	(9)	Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
	(10)	Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions.
	(11)	However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.
Division 5 – Corporate criminal responsibility
43BK.  General principles
	(1)	This Code applies to bodies corporate as well as natural persons.
	(2)	This Code applies to bodies corporate in the same way as it applies to natural persons, but subject to the changes made by this Part and any other changes necessary because criminal liability is being imposed on a body corporate rather than a natural person.
	(3)	A body corporate may be found guilty of any offence, including one punishable by imprisonment.
43BL.  Physical elements
	If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate.
43BM.  Fault elements other than negligence
	(1)	If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.
	(2)	The ways in which authorisation or permission may be established include –
(a)	proving that the body corporate's board of directors intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; and
(b)	proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; and
(c)	proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; and
(d)	proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.
	(3)	Subsection (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct or the authorisation or permission.
	(4)	Factors relevant to the application of subsection (2)(c) and (d) include –
(a)	whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate; and
(b)	whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.
	(5)	If recklessness is not a fault element in relation to a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.
	(6)	In this section –
"board of directors" means the body (by whatever name called) exercising the executive authority of the body corporate;
"corporate culture", for a body corporate, means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant conduct happens;
"high managerial agent", of a body corporate, means an employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate's policy.
43BN.  Negligence
	(1)	The test of negligence for a body corporate is that set out in section 43AL.
	(2)	Subsection (3) applies if –
(a)	negligence is a fault element in relation to a physical element of an offence; and
(b)	no individual employee, agent or officer of the body corporate has that fault element.
	(3)	The fault element of negligence may exist on the part of the body corporate if its conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers).
	(4)	Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to –
(a)	inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
(b)	failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
43BO.  Mistake of fact – strict liability
	(1)	A body corporate can only rely on section 43AX in relation to conduct that would, apart from this section, constitute an offence on its part if –
(a)	the employee, agent or officer of the body corporate who engaged in the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence; and
(b)	the body corporate proves that it exercised due diligence to prevent the conduct.
	(2)	A failure to exercise due diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to –
(a)	inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
(b)	failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
43BP.  Intervening conduct or event
	A body corporate cannot rely on section 43BA in relation to a physical element of an offence brought about by another person if the other person is an employee, agent or officer of the body corporate.
Division 6 – Proof of criminal responsibility
43BQ.  Legal burden of proof
	The legal burden, in relation to a matter, is the burden of proving the existence of the matter.
43BR.  Legal burden of proof – prosecution
	(1)	The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.
	(2)	The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof.
43BS.  Standard of proof – prosecution
	(1)	A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
	(2)	Subsection (1) does not apply if a law specifies a different standard of proof.
43BT.  Evidential burden of proof
	The evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
43BU.  Evidential burden of proof – defence
	(1)	Subject to section 43BV, a burden of proof that a law imposes on a defendant is an evidential burden only.
	(2)	A defendant who wishes to deny criminal responsibility by relying on a provision of Division 3 or Part IIA bears an evidential burden in relation to that matter.
	(3)	A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) bears an evidential burden in relation to the matter.
	(4)	The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
	(5)	The question whether an evidential burden has been discharged is a question of law.
43BV.  Legal burden of proof – defence
	A burden of proof that a law imposes on the defendant is a legal burden only if the law expressly –
(a)	specifies that the burden of proof in relation to the matter in question is a legal burden; or
(b)	requires the defendant to prove the matter; or
(c)	creates a presumption that the matter exists unless the contrary is proved.
43BW.  Standard of proof – defence
	A legal burden of proof on the defendant must be discharged on the balance of probabilities.
43BX.  Use of averments
	A law that allows the prosecution to make an averment does not allow the prosecution to aver any fault element of an offence.
Division 7 – Geographical application
43BY.  Application and effect of Division
	(1)	This Division extends the application of a law of the Territory that creates an offence beyond the territorial limits of the Territory (and Australia) if the required geographical nexus exists for the offence.
	(2)	If a law that creates an offence provides for any geographical consideration for an offence, the provision prevails over any inconsistent provision of this Division.
Examples for subsection (2) –
1.	A law creating an offence may provide that the place of commission of the offence is (explicitly or by necessary implication) an element of the offence.
2.	A law creating an offence may provide for its application outside the Territory and exclude (explicitly or by necessary implication) the requirement for a geographical nexus between the Territory and an element of the offence.
43BZ.  Interpretation for Division
	(1)	For this Division, the required geographical nexus is the geographical nexus referred to in section 43CA(2).
	(2)	For this Division, the place where an offence is committed is the place where any of the physical elements of the offence happen.
	(3)	For this Division, the place where an offence has an effect includes –
(a)	any place whose peace, welfare or good government is threatened by the offence; and
(b)	any place where the offence would have an effect (or would cause such a threat) if the offence were committed.
43CA.  Extension of offences if required geographical nexus exists
	(1)	An offence against a law is committed if –
(a)	disregarding any geographical considerations, all elements of the offence exist; and
(b)	a geographical nexus exists between the Territory and the offence.
	(2)	A geographical nexus exists between the Territory and an offence if –
(a)	the offence is committed completely or partly in the Territory, whether or not the offence has any effect in the Territory; or
(b)	the offence is committed completely outside the Territory (whether or not outside Australia) but has an effect in the Territory.
43CB.  Geographical application – double criminality
	(1)	This Division applies to an offence committed partly in the Territory and partly in a place outside the Territory (whether or not outside Australia), even if it is not also an offence in that place.
	(2)	This Division applies to an offence committed completely outside the Territory (whether or not outside Australia) only if –
(a)	it is also an offence in the place where it is committed; or
(b)	it is not also an offence in that place, but the tribunal of fact is satisfied the offence is such a threat to the peace, welfare or good government of the Territory that it justifies criminal punishment in the Territory.
43CC.  Geographical application – procedure
	(1)	The required geographical nexus is conclusively presumed for an offence unless rebutted under subsection (2) or (4).
	(2)	If a person charged with an offence disputes the existence of the required geographical nexus for the offence, the following provisions apply:
(a)	the court must proceed with the trial of the offence in the usual way;
(b)	if, at the end of the trial, the tribunal of fact is satisfied on the balance of probabilities that the required geographical nexus does not exist, it must make or return a finding to that effect, and the court must dismiss the charge;
(c)	however, if, disregarding any geographical considerations, the tribunal of fact would find the person not guilty of the offence (other than because of mental impairment), it must make or return a verdict of not guilty;
(d)	also, if, disregarding any geographical considerations, the tribunal of fact would find the person not guilty of the offence only because of mental impairment, it must make or return a verdict that the person is not guilty of the offence because of mental impairment.
	(3)	This section applies to any alternative verdict available by law to tribunal of fact in relation to another offence with which the person was not charged.
	(4)	The tribunal of fact may make or return a finding of guilty in relation to the other offence (referred to in subsection (3)) unless satisfied on the balance of probabilities the required geographical nexus does not exist for the other offence.
	(5)	If the issue of whether the required geographical nexus exists for an offence is raised before the trial, the issue must be reserved for consideration at the trial.
43CD.  Geographical application – suspicion etc. that offence committed
	(1)	This section applies if a person may exercise a power or perform a function under a law on reasonable suspicion or belief that an offence has been committed.
	(2)	The person may exercise the power or perform the function if the person suspects or believes, as the case requires, on reasonable grounds that all the elements required for the offence exist.
	(3)	Subsection (2) applies whether or not the person suspects or believes, or has any ground to suspect or believe, that the required geographical nexus exists for the offence.
8.	Repeal and substitution of Part VI, Division 2 heading
	Part VI, Division 2 heading –
	repeal, substitute
Division 2 – Provision of rescue, medical treatment and other aid
9.	Repeal of section 154
	Section 154
	repeal
10.	Repeal and substitution of section 163 (Manslaughter)
	Section 163 –
	repeal, substitute
163.	Manslaughter
	A person is guilty of the crime of manslaughter if –
(a)	the person engages in conduct; and
(b)	that conduct causes the death of another person; and
(c)	the person is reckless or negligent as to causing the death of that or any other person by the conduct.
	Penalty:	Imprisonment for life.
11.	Repeal of section 167
	Section 167 –
	repeal
12.	New Part VI, Division 3A 
	After section 174 –
	insert
Division 3A – Recklessly endangering life and serious harm, negligently causing serious harm and death or serious harm involving motor vehicles
Subdivision 1 – Interpretation
174A.  Causing death or harm
	For an offence under this Division, a person's conduct causes death or harm if it substantially contributes to the death or harm.
174B.  Danger of death or serious harm
	(1)	For this Division, conduct that may give rise to a danger of death or serious harm includes exposing a person to the risk of catching a disease that may give rise to a danger of death or serious harm.
	(2)	For this Division, conduct gives rise to a danger of death or serious harm if it is ordinarily capable of creating a real, and not merely a theoretical, danger of death or serious harm.
	(3)	Conduct may give rise to a danger of death or serious harm whatever the statistical or arithmetical calculation of the degree of risk of death or serious harm involved.
	(4)	In the prosecution of an offence under Subdivision 2, it is not necessary to prove that a person was actually placed in danger of death or serious harm by the conduct concerned.
Subdivision 2 – Offences
174C.  Recklessly endangering life
	A person is guilty of a crime if –
(a)	the person engages in conduct; and
(b)	that conduct gives rise to a danger of death to any person; and
(c)	the person is reckless as to the danger of death to any person that arises from the conduct.
	Penalty:	Imprisonment for 10 years or, for an aggravated offence, 14 years.
174D.  Recklessly endangering serious harm
	A person is guilty of a crime if –
(a)	the person engages in conduct; and
(b)	that conduct gives rise to a danger of serious harm to any person; and
(c)	the person is reckless as to the danger of serious harm to any person that arises from the conduct.
	Penalty:	Imprisonment for 7 years or, for an aggravated offence, 10 years.
174E.  Negligently causing serious harm
	A person is guilty of a crime if –
(a)	the person engages in conduct; and
(b)	that conduct causes serious harm to another person; and
(c)	the person is negligent as to causing serious harm to the other person or any other person by the conduct.
	Penalty:	Imprisonment for 10 years.
174F.  Driving motor vehicle causing death or serious harm
	(1)	A person is guilty of a crime if –
(a)	the person drives a motor vehicle dangerously; and
(b)	that conduct causes the death of any person.
	Penalty:	Imprisonment for 10 years.
	(2)	A person is guilty of a crime if –
(a)	the person drives a motor vehicle dangerously; and
(b)	that conduct causes serious harm to any person.
	Penalty:	Imprisonment for 7 years.
	(3)	For subsections (1)(a) and (2)(a), a person drives a motor vehicle dangerously if the person drives the vehicle –
(a)	while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vehicle; or
(b)	at a speed that is dangerous to another person; or
(c)	in a manner that is dangerous to another person.
	(4)	An offence against subsection (1) or (2) is an offence of strict liability.
	(5)	A person who is convicted or acquitted of an offence against subsection (1) or (2) is not liable to be convicted of another offence against this Code on the same facts or substantially the same facts.
Subdivision 3 – Aggravated offences
174G.  Increased penalty for aggravated offence
	The following are circumstances of aggravation for an offence committed against section 174C or 174D and a maximum penalty specified in the section for an aggravated offence applies if any such circumstance of aggravation applies to the offence:
(a)	the offence was committed by the use or threatened use of an offensive weapon;
(b)	the offence was committed against a public officer who was, at the time of the offence, acting in the course of his or her duty as a police officer, prison officer or other law enforcement officer;
(c)	the offence was committed against a person who was involved in any capacity in legal proceedings in connection with any conduct or future conduct of the person in respect of those proceedings;
(d)	the offence was committed against a child under the age of 10 years;
(e)	the offence was committed against a person in abuse of a position of trust;
(f)	the offence was committed against a person in abuse of a position of authority.
174H.  Procedure for proving aggravated offence
	(1)	If the prosecution intends to prove an aggravated offence, the relevant circumstances of aggravation must be contained in the charge.
	(2)	In order to prove an aggravated offence, the prosecution must prove that the person who committed the offence intended or was reckless as to the circumstances of aggravation.
13.	Repeal and substitution of Part VI, Division 4 heading
	Part VI, Division 4 heading –
	repeal, substitute
Division 4 – Other offences endangering life or health
14.	Amendment of section 192 (Sexual intercourse and gross indecency without consent)
(1)	Section 192(1) –
	omit, substitute
	(1)	For this section, consent means free and voluntary agreement.
(2)	Section 192(2) –
	omit
	freely agree
	substitute
	consent
(3)	Section 192(3) and (4) –
	omit, substitute
	(3)	A person is guilty of a crime if the person has sexual intercourse with another person –
(a)	without the other person's consent; and
(b)	knowing about or being reckless as to the lack of consent.
	Penalty:	Imprisonment for life.
	(4)	A person is guilty of a crime if the person performs an act of gross indecency on another person –
(a)	without the other person's consent; and
(b)	knowing about or being reckless as to the lack of consent.
	Penalty:	Imprisonment for 14 years.
	(4A)	For subsections (3) and (4), being reckless as to a lack of consent to sexual intercourse or an act of gross indecency includes not giving any thought to whether or not the other person is consenting to the sexual intercourse or act of gross indecency.
(4)	Section 192(7) –
	omit
	bodily
(5)	Section 192(8) –
	omit
	grievous
	substitute
	serious
15.	Amendment of section 316 (Indictment containing count of murder or manslaughter)
	Section 316(2) –
	omit, substitute
	(2)	On an indictment charging a person with manslaughter, the person may alternatively be found guilty of the offence defined by section 174F(1).
16.	Amendment of section 318 (Charge of offence against the person where section 31 or intoxication is a defence)
(1)	Section 318 –
	omit
	murder, manslaughter or any other offence against the person
	substitute
	an offence against the person other than murder or manslaughter
(2)	Section 318 –
	omit
	all the words after "alternatively of"
	substitute
	an offence defined by Part VI, Division 3A, Subdivision 2
17.	New Part XI
	After section 443 –
	insert
PART XI – TRANSITIONAL MATTERS FOR CRIMINAL CODE AMENDMENT (CRIMINAL RESPONSIBILITY REFORM) ACT 2005
444.	Application of Code to pre-commencement offences
	This Code, as in force immediately before the commencement of this section, continues to apply in relation to offences committed before that commencement.
18.	New Schedule 1
	Before Schedule 4 –
	insert
SCHEDULE 1
Section 1, definition "Schedule 1 provision"
PROVISIONS TO WHICH PART IIAA APPLIES
Section 163 (Manslaughter)
Part VI, Division 3A (Recklessly endangering life and serious harm, negligently causing serious harm and death or serious harm involving motor vehicles)
Section 192 (Sexual intercourse and gross indecency without consent)
19.	Further amendments
Schedule 1 has effect.
PART 3 – AMENDMENT OF OTHER LEGISLATION
20.	Amendment of Dangerous Goods Act
(1)	This section amends the Dangerous Goods Act.
(2)	Section 9(1), penalty provision –
	omit
	grievous harm
	substitute
	serious harm
(3)	 After section 9(3) –
	insert
	(4)	In this section –
"serious harm" has the same meaning as in the Criminal Code.
21.	Amendment of subordinate legislation
(1)	This section amends the subordinate legislation specified in Schedule 2.
(2)	Schedule 2 has effect.
____________________________
SCHEDULE 1
Section 19
FURTHER AMENDMENTS OF CRIMINAL CODE

Provision	Amendment	
	omit				substitute	
Sections 10, 19, 26(3) and 27	grievous harm				serious harm
(all references)	
Section 27(k)	bodily harm				harm	
Sections 28, 29(3), 34(1)(e) and (f), 34(3)(c) and (d) and 40(2)	grievous harm				serious harm
(all references)	
Section 50
–	definition of "violence"	
grievous harm				serious harm	
Sections 70, 160, 162(1)(a), 177 and 181	grievous harm				serious harm
(all references)	
Section 182	bodily harm				harm	
Section 185(1)	grievous harm				serious harm
(all references)	
Section 186	bodily harm				harm	
Section 187
–	definition of "assault", paragraph (a)	
bodily harm				harm	
Sections 188(2)(a) and 189A(2)(a)	bodily harm				harm	
Sections 189A(2)(b) and 194(3)	grievous harm				serious harm
(all references)	
Sections 211(2) and 212(2)	bodily harm				harm	

____________________________

SCHEDULE 2
Section 21
AMENDMENT OF SUBORDINATE LEGISLATION

Provision	Amendment	
	omit				substitute	
Private Security (Crowd Controllers) Regulations		
Schedule
–	Form, note to item 5	
grievous harm				serious harm
(all references)
bodily harm				harm	
Private Security (Security Firms) Regulations		
Schedule
–	Form, note 2 to item 8	
grievous harm				serious harm
(all references)
bodily harm				harm	
Private Security (Security Officers) Regulations		
Schedule
–	Form, note to item 5	
grievous harm				serious harm
(all references)
bodily harm				harm	

____________________________
__________________

ALTERATIONS TO PROVISION HEADINGS
On the day on which the Criminal Code is amended by this Act, in addition to any alteration to provision headings indicated in the text of this Act, the headings to the provisions specified in the table are altered as set out in the table.

Provision	Alteration	
	omit				substitute	
Criminal Code		
Sections 10, 27, 28, 70, 177 and 181	grievous harm			serious harm	
Section 186	bodily harm				harm	
Justices Act		
Section 131A	bodily harm				harm	

_________________________________________________________
CRIMINAL CODE AMENDMENT
(CRIMINAL RESPONSIBILITY REFORM) (No 2) BILL 2005
SERIAL NO. 7

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Criminal Code Amendment (Criminal Responsibility Reform) Bill (No 2) 2005 (“the Bill”) is the first stage in the progressive reform of the Northern Territory’s Criminal Code.  The Bill sets out, with some minor modifications, the general principles of criminal responsibility in Chapter 2 of the Model Criminal Code (“the Model Code”) developed by the national Model Criminal Code Officers Committee (“MCCOC”), established by the Standing Committee of Attorneys-General (“SCAG”) and as modified by SCAG.  This Chapter has been enacted both by the Commonwealth and by the Australian Capital Territory.  The Bill comprises Part IIAA based on Chapter 2 and also proposes new offences based on the Model Code to replace offences that are to be repealed by this Bill.  

Part IIAA of the Bill sets out the general principles of criminal responsibility, which will eventually apply to all Northern Territory offences.  The principles will not apply to all offences immediately.  There will be staged approach because a large number of amendments will be required in relation to existing criminal offences because existing offences are drafted on the basis of different principles.  The staged approach should also assist practitioners and courts to adjust to the changed approach and minimise confusion.  The criminal responsibility principles will first apply to offences contained in this Bill and thereafter to offences that are added to Schedule 1 or offences declared to be ones to which Part IIAA applies.  The existing criminal responsibility provisions of Part II will cease to apply to Schedule 1 offences or declared offences.  Some of the provisions of the existing Part 1 will no longer apply to Schedule 1 or declared offences because these matters are now provided for in Part IIAA.

The Commonwealth was the first Australian jurisdiction to enact Chapter 2 of the Model Criminal Code and the Bill is substantially similar to that passed by the Commonwealth in 1995.  The enactment of Chapter 2 as Part IIAA will ultimately be a valuable aid in interpreting and applying offences created by statute.  The Australian Capital Territory is undertaking a similar reform process to our own and has enacted Chapter 2.

The Commonwealth prepared a very detailed Explanatory Memorandum for its Bill, which included a discussion of the case law from which the Code provisions were derived.  This Explanatory Statement reproduces extracts from the ACT Explanatory Memorandum, which included substantial extracts from the Commonwealth’s Explanatory Memorandum, for their Bill.  This Explanatory Statement reproduces those references and the Government is grateful to the Commonwealth Attorney-General’s Department and the ACT Department of Justice for making their Explanatory Memoranda available for use.  Extracts from the Commonwealth Explanatory Memorandum included in this statement have been amended slightly to ensure that the references to particular provisions reflect the numbering in the Northern Territory Bill and where relevant, references to existing Northern Territory law have been added.

The Bill repeals the current offences of manslaughter and dangerous act.  New provisions providing for offences of manslaughter, endangerment and negligence as to serious harm and harm, causing death or serious harm by dangerous driving are proposed.  The existing offence of sexual intercourse without consent is amended. 

NOTES ON CLAUSES

PART 1 - PRELIMINARY

Clause 1.	Short title.

This is a formal clause which provides for the citation of the Bill.  The Bill when passed may be cited as the Criminal Code Amendment (Criminal Responsibility Reform) Bill 2005.

Clause 2.	Commencement.

This clause explains that the Act will commence on the date fixed by the Administrator by notice in the Gazette.

PART 2 – AMENDMENT OF CRIMINAL CODE

Clause 3.	Principal Act amended.

This clause provides that Part 2 of the Bill amends the Criminal Code.

Clause 4.	Amendment of section 1 (Definitions).

This clause omits current definitions of “bodily harm” and “grievous harm” and inserts new definitions for the purpose of Part IIAA and the offences proposed by the Bill.  

Clause 5.	New section 1A.

This clause inserts a new section providing for a definition of harm.

Clause 6.		Amendment of section 31 (Unwilled act etc and accident).

This clause omits the reference to section 154 in the current section 31 because section 154 is to be repealed by this Bill.
Clause 7.	New Part IIAA.

This clause inserts the new Part IIAA on criminal responsibility.  It provides for the following provisions.

Division 1 - Preliminary

43AA 	Application of this Part and relationship with Parts I and II

This provision explains that the new Part IIAA will only apply to Schedule 1 offences and to offences that are declared offences committed on or after the commencement of the Act.  It provides that certain provisions of the current Part 1 do not apply to Schedule 1 or declared offences and that the existing criminal responsibility provisions of Part II will not apply to Schedule 1 or to declared offences committed on or after the commencement of the Act.

Division 2 – Elements of offence

Subdivision 1	General Matters

43AB	Elements

Offences consist of physical and fault elements.  The Code adopts the usual analytical division of the elements of criminal offences into the actus reus (which the Code terms “physical elements”) and the mens rea (which the Code terms “fault elements”). 

Most offences consist of one or more physical elements each with its accompanying fault element.  43AB(2) explains that some offences do not have a fault element for one or more physical elements.  Strict liability offences are an example of offences without fault elements.  Sometimes there may be different fault elements for different physical elements. 

43AC	Establishing guilt of offences

This provision states the presumption of innocence in summary form.  That is, a person is innocent of an offence until the elements of the offence are proved.  In order to find a person guilty of an offence, it is necessary to prove the existence of the relevant physical elements of the offence and the relevant fault element or fault elements (if any) required for each physical element of the offence.  If the law that creates the offence requires the existence of one of two or more fault elements for a physical element of the offence, it will be sufficient if only one of the alternative fault elements exists for that physical element.  In rare cases where more than one fault element is required for a physical element of the offence all the fault elements for that physical element must exist.  However, it is important to note 43AK(4).  It provides that if “recklessness” is a fault element for a physical element of an offence, proof of “intention”, “knowledge” or recklessness will satisfy that fault element.  

The provisions dealing with who must prove the elements of an offence and to what standard, are set out Division 6.

Subdivision 2	Physical elements

43AD	Conduct and engaging in conduct

This provision defines the terms “conduct” and “engage in conduct”, which are used throughout the Act.  “Conduct” can be an act, an omission to perform an act or a state of affairs.  Similarly, “engage in conduct” means to perform an act or omit to perform an act. 

43AE	Physical elements

This provision explains that the physical elements of an offence may be conduct, a result of conduct or a circumstance in which conduct or a result of conduct happens .  

There is no definition of the term “act”.  The reason for this omission is explained in the Commonwealth Explanatory Memorandum:

The meaning of the term “act” has been problematic both at common law and under the existing State ‘Griffith Codes’ [and the NT Code].  There are two difficulties.

The first difficulty is whether acts are comprised only of physical components or whether they also contain a minimal mental component of voluntariness, (that is the will to act).  Voluntariness is usually regarded as part of the act and the Code has adopted that analysis.  However, this makes it extremely difficult to distinguish between voluntariness and intent in simple offences (called offences of “basic intent”).  This issue is dealt with in more detail in relation to voluntariness.

The second, more difficult, problem was how the Code should deal with the often crucial facts and circumstances surrounding conduct which gave that conduct colour and meaning but are not legal elements of the offence.  For example, take a case where the defendant pushes a glass into a victims face.  Should the “act” be understood narrowly as just a bodily movement (the movement of the defendant’s hand) or more broadly to include the circumstance that the defendant had a glass in his hand?  The problem is that if “act” includes circumstances defining the conduct, then the distinction between “act” and “circumstances” seems to collapse.  This would also confuse the relationship between conduct and the fault elements.  The fault elements should assume a distinction between acts and circumstances. 

In a series of cases: Vallance (1961) 108 CLR 56; Mamote-Kulang (1964) 111 CLR 62; Timbu Kolian (1968) 119 CLR 47; Kaporonovski (1973) 133 CLR 209; and Falconer (1990) 171 CLR 30 the High Court has considered the meaning of “act” in section 23 of the State Griffith Codes.  At first, different meanings were attributed to the term by different members of the Court.  Thus, in the context of discharge of a firearm wounding a person, the meanings ranged from the physical movement involved in the contraction of the trigger finger to the actual wounding of the victim.

However, by 1973 with the Kaporonovski decision, one view had emerged as the broadly accepted view of the Court and this was confirmed in Falconer.  In that case Mason CJ, Brennan and McHugh JJ at p.38 and 39 said:

“In our opinion, the true meaning of 'act' in s.23 is that which Kitto J. in Vallance attributed to 'act' in s.31(1) of the Tasmanian Code, namely, a bodily action which, either alone or in conjunction with some quality of the action, or consequence caused by it, or an accompanying state of mind, entails criminal responsibility ...  Adopting the meaning of 'act' expressed by Kitto J. in Vallance, the act with which we are concerned in this case is the discharge by Mrs Falconer of the loaded gun; it is neither restricted to the mere contraction of the trigger finger nor does it extend to the fatal wounding of Mr Falconer.”

A similar analysis has been applied by the High Court in cases on the common law.  Ultimately, it was concluded that the better course is not to define “act” and to rely on the common sense approach of the courts to apply the interpretation in Falconer.  Although this may not solve all the problems in this difficult area, defining “act” could well introduce other more difficult problems.

43AF	Voluntariness

43AF(1) explains that in order for conduct to constitute a physical element of an offence it must be voluntary, and 43AF(2) explains that conduct is only voluntary if it is willed by the person whose conduct it is.  

In further explaining what is voluntary and what is not, the Commonwealth Explanatory Memorandum stated:

Despite the traditional analysis of crimes into actus reus and mens rea, the notion of what it means to “act” goes beyond mere physical movement.  At a minimum there needs to be some operation of the will before a physical movement is described as an act.  The physical movements of a person who is asleep, for example, probably should not be regarded as acts at all, and certainly should not be regarded as acts for the purposes of criminal responsibility.  This would be inconsistent with the principle of free will which underlies the rules of criminal responsibility.  These propositions are embodied in the rule that people are not held responsible for involuntary "acts", that is physical movements which occur without there being any will to perform that act.  This situation is usually referred to as automatism.

In cases where the prosecution has to prove intention or recklessness, the practical operation of the voluntariness requirement is slight.  This is because it will be easier for the accused simply to argue that he or she lacked the necessary fault element.  The degree of the impairment of the accused's consciousness has to be profound before the claim that he or she did not intend to act at all will be credible.  Further, for many offences where the mental element does not go beyond the immediate circumstances of the physical movement, the difference between voluntariness and intent almost disappears…

The practical significance of automatism arises in offences where the prosecution does not have to prove intent, knowledge or recklessness.  The draft follows the current position in requiring that conduct be a product of the will.  In light of Falconer, it is now clear that the common law and the Griffith Codes positions are the same on this issue.  

[43AF(2)] contains examples of conduct which is not voluntary and makes it clear that the list of conduct which is not voluntary is inclusive, though it is hard to imagine any involuntary conduct which would not be covered by the list.  The term "reflex" is less appropriate than "unwilled bodily movement"; some reflex acts can be regarded as voluntary (for example, the reflex responses of a skilled sportsperson).  Because impaired states of consciousness may vary in degree, [example 3 in 43AF(2)] is drafted to leave the jury to decide whether the condition was so profound that it rendered the conduct involuntary…

The Commonwealth Explanatory Memorandum also explained the remaining provision of this clause as follows:   

[43AF(3)] provides that an omission to perform an act is only voluntary if the act omitted was one which the person is capable of performing.  Clearly, the physical element of an offence constituted by conduct can include conduct constituted wholly by an omission to act.  However, it was decided to accept the common law and Griffith Codes position that omissions attract liability only if the statute creating the offence explicitly says so, or the omission was in breach of a legal duty to act...  

It will be necessary for the prosecution to prove that the omission was accompanied by any relevant fault element.  The circumstances in which there is a legal duty to act will be set out in the relevant offence provisions. 

[43AF(4)] provides that if the offence consists only of a state of affairs, for example being a vagrant, then the state of affairs can only be voluntary if the person is capable of exercising control over it.  Offences like "being a drug addict" are to be avoided because that they penalise conduct which is involuntary.  [43AF(4)] maintains the general principle of voluntariness for such offences… 

[43AF(5)] provides that evidence of self-induced intoxication cannot be considered in determining whether the conduct was voluntary.  It was decided in the Standing Committee of Attorneys-General that there should not be a defence of “gross intoxication” (where that intoxication was self-induced), that is the defendant was so grossly intoxicated that his or her act was not “voluntary” but instead it should follow the decision in Majewski [1977] AC 480.  Majewski does allow evidence of intoxication to be used to deny intention or recklessness in offences of “specific intent.” This approach is consistent with that adopted in the main common law jurisdictions (England, Canada and the USA; and the Griffith Code States (Queensland, Western Australia, Tasmania and the Northern Territory).  It will replace the common law in [other Australian jurisdictions] where ‘gross intoxication’ may be taken into account in relation to all offences as a result of the High Court’s decision in O’Connor’ (1980) 146 CLR 64.  Ministers recognised that to legislate to enable intoxication to be used as an excuse for otherwise criminal conduct in relation to simple offences of “basic intent” (such as assault), when alcohol and drug abuse are such a significant social problem, would be unacceptable. 

The commentary below on 43AR and 43AS explain what constitutes self induced intoxication and offences of “basic” and “specific” intent.    

43AG	Omissions

This provision explains that an omission to perform an act can only be a physical element of an offence if the offence provision makes it a physical element or impliedly provides that the offence is committed by an omission to perform an act that the defendant has a legal duty to perform.  43AG(2) expressly provides that an omission to perform any of the duties referred to in Part VI, Division 1 can be a physical element of a Schedule 1 offence.

Subdivision 3	Fault elements

43AH	Fault elements

This clause explains that the fault elements for a physical element may be intention, knowledge, recklessness or negligence.  These are set out in descending order of culpability.  Intention is regarded as more blameworthy than negligence and therefore offences with a fault element of intention will have higher penalties than similar offences with a fault element of negligence. 

The four fault elements referred to in 43AH(1) are the usual or “standard” fault elements of an offence but they are not an exhaustive list of the fault elements that can apply.  Accordingly, 43AH(2) makes it clear that a law that creates an offence can specify other fault elements for physical elements of the offence.  For example, some offences have a fault element of doing, or failing to do, something “dishonestly” or “unreasonably”. 

The Commonwealth Explanatory Memorandum discussed the key fault elements set out in 43AH(1):

The Griffith Codes and the common law take different approaches to the structure of the rules of criminal responsibility.  However, while the difference should not be minimised, its practical effect is less than is often thought.  The essential difference between the two systems is that criminal responsibility under the common law is based on subjective fault elements: what the accused knew, believed or intended at the time of the conduct.  This is not so under the basic provisions of the Griffith Codes. 

In many offences under the Griffith Codes (eg section 302 of the Queensland Code (murder)), one or more forms of intention are express elements of the offence.  In these cases, the difference between the Griffith Codes and the common law as regards intention is less marked.  While many of the provisions of the Codes — particularly those related to property — also require a subjective fault element, the basic provisions of the Codes do not.  Instead, under those provisions criminal responsibility is negated by accident, or honest and reasonable mistake, or where the event occurred independently of the will of the accused.  Under the relevant Code provisions, as interpreted by the courts, a range of grounds of exculpation are thus available to the defence.

The differences between the two approaches can be illustrated by an example based on section 317A of the Qld Code.  This section makes it an offence, amongst other things, to carry or place dangerous goods on board an aircraft.  No element of intention is stated.

Under common law rules, the onus would be on the prosecution to establish that the defendant knew he or she was placing dangerous goods on board an aircraft (see He Kaw Teh (1985) 157 CLR 523) or was aware of at least a likelihood that the goods he or she was placing were dangerous: Bahri Kural (1987) 162 CLR 502.  In a common law jurisdiction, the case would not be allowed to go to the jury if the Crown failed to prove this element.  Under the Griffith Codes, the prosecution case would normally go to the jury without proof of knowledge by the defendant of the nature of the goods.  The Crown would only need to disprove involuntariness and accident in terms of section 23, or honest and reasonable but mistaken belief under section 24, if those issues were raised.

The defence of mistake is also a point of difference.  At common law, an honest albeit unreasonable mistake can afford a defence to offences involving a mental element.  Under the Griffith Codes, regardless of whether the offence involves a mental element, a mistake of fact will only afford a defence where a mistake is both honest and reasonable.  Notwithstanding that apparent difference, the experience of juries in common law jurisdictions is that they reject the defence where the mistake is not credible because it is unreasonable.  In light of these considerations, it can be seen that while the difference between the Griffith Codes and common law jurisdictions is not as great as it is sometimes portrayed, there are differences which will affect the outcome in some cases.  In particular, fewer cases are likely to get to the jury under the common law because generally under the Griffith Codes the prosecution does not have to prove a fault element.

The Griffith Codes have served their respective jurisdictions well.  However, it must be noted that when first enacted in the late nineteenth/early twentieth century, the Griffith Codes were closer to the common law as it then stood.  The common law has changed significantly since then.  The main change lies in the strengthening of the presumption that intent is part of the definition of all offences and the combination of that change with the spirit of Woolmington [1935] AC 462 — that the prosecution bears the burden of proof, and hence the burden of proving intent.  This contrasts with the significant group of Griffith Code provisions which do not specify intent but leave it to be raised indirectly if at all by casting an evidential burden on the defendant to raise accident or mistake under sections 23 or 24 before requiring the prosecution to disprove them.  The Griffith Codes now stand outside the mainstream of legal development of the late 20th century which has stressed and indeed expanded the requirements for subjective fault.  In this regard it was noted that the US Model Penal Code, the English Draft Code, the Canadian Draft Code, the Gibbs Committee's Draft Bill and the NZ Crimes Bill 1989 have all taken the subjective fault element approach.

43AI	Intention 

The purpose of this clause is to explain what is meant by “intention”, the most culpable fault element.  It provides that a person has intention with respect to conduct if he or she means to engage in that conduct.  

The Commonwealth Explanatory Memorandum explained that:

The definition is based on the English Draft Code, but the definition of intention in relation to "conduct" is derived from the Canadian Draft Code.

[43AI(3)] provides that a person has intention with respect to a circumstance if he or she believes that it exists or will exist.  While the distinction between circumstances and consequences is problematic at the margins, there is a clear difference in most cases.    

The approach taken is at variance with the Gibbs Committee's decision to define "intention" to include advertence to probability.  There are a number of reasons for this.  Conceptually, it confuses intention and recklessness.  Moreover, the legislature and the courts are unduly hampered if they want to require proof of "true intention" — in the sense of meaning an event to occur.  In relation to recklessness, advertence to probability without the evaluative element of unjustifiability of risk omits a central component of the notion of recklessness which is discussed further in the note on [43AK].

[43AI(2)] provides that a person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.  It was felt the definition of "intention" should include awareness that the result will occur in the ordinary course of events, or is morally or virtually certain to occur.  Therefore the definition follows the wording proposed in the English Draft Code.  The contrary position is that such an awareness or foresight is at best evidence, perhaps very good evidence, of intention, but does not amount to intention.  That is the position taken by the House of Lords in Moloney [1985] AC 905; Hancock [1986] AC 455.  See also Nedrick [1986] 1 WLR 1025. 

43AJ	Knowledge

The effect of this provision is to make it clear that a person has knowledge of a circumstance or result if he or she is aware that it exists or will exist in the ordinary course of events. 

The Commonwealth Explanatory Memorandum explained:

Knowledge is defined in relation to circumstances and results, but not in relation to conduct.  There were no circumstances that could be thought of in which knowledge of conduct- as opposed to intention in relation to conduct - would be appropriate.  It was decided knowledge should not be defined in terms of foresight of probability for similar reasons to those given in the context of intention.  In addition to define knowledge in terms of foresight collapses knowledge and belief.  One cannot "know" something unless it is so; but one can foresee the likelihood of something that is not so or will not be so.

It was decided that "wilful blindness" could not be considered to be a discrete fault element.  Knowledge and recklessness fairly cover the field.

43AK	Recklessness

43AK(1) explains that a person is reckless in relation to a result if he or she is aware that there is a substantial risk that the result will happen, and that having regard to the known circumstances, it is unjustifiable to take the risk.

43AK(2) explains that a person is reckless in relation to a circumstance if he or she is aware that there is a substantial risk that the circumstance exists or will exist, and that having regard to the known circumstances, it is unjustifiable to take the risk. 

The Commonwealth Explanatory Memorandum detailed the history of these provisions:

This definition [in 43AK(2)] substantially follows the US Model Penal Code in using "substantial" and "unjustifiable" as the two key words.  Recklessness has been defined in terms of a "substantial" risk rather than in terms of probability or possibility because those terms invite speculation about mathematical chances and ignore the link between the degree of risk and the unjustifiability of running that risk in any given situation.

[43AK(1)] provides that a person is reckless with respect to result if he or she is aware of the substantial risk that the result will occur and having regard to the circumstances known to him/her it is unjustifiable to take the risk.  It now seems clear at common law that foresight of probability is restricted to murder and the foresight of possibility is the test for all other offences, including complicity in murder.   

[43AK(1) and (2)] makes it clear that the unjustifiability of the risk is to be assessed on the facts as the accused believes them to be.  It was decided that the modification of the existing recklessness tests by substituting "substantial" for “probability” or “possibility” and adding the concept of unjustifiability set the proper level for recklessness.  Distinguishing recklessness and negligence only on the basis of the subjective/objective test would have been too great a departure from the established concepts.  The tests in proposed section [20] adequately distinguishes between the culpability of those who knowingly take substantial and unjustifiable risks and those who do not see risks but are criminally negligent.  Although there may be some cases in which it may be more culpable to be negligent, in the generality of cases recklessness is traditionally and correctly seen as the more culpable state of mind.  

[43AK(3)] states that the question of whether a risk is unjustifiable is one of fact.  The word "unjustifiable" has been used to express the evaluative element of recklessness rather than "unreasonably" as used by the Gibbs Committee in order to avoid confusion between recklessness and criminal negligence.  This leaves the question whether the risk taken is "unjustifiable" for the jury (or the judge or magistrate in cases where there is no jury).

[43AK(4)] provides that if recklessness is a fault element for a physical element of an offence proof of intention, knowledge or recklessness will satisfy that fault element. 

Some jurisdictions employ the concept of "reckless indifference" in their criminal legislation.  The Code definition should apply equally to that form of words.  There are dicta to that effect in the High Court in Royall (1991) 65 ALJR 451.

43AL	Negligence

A person will be regarded as negligent with respect to a physical element of an offence if his or her conduct:

·	falls so far short of the standard of care that a reasonable person would have exercised in the circumstances; and
·	involves such a high risk that the physical element exists or will exist that the conduct merits criminal punishment.

The Commonwealth Explanatory Memorandum explained:

The definition is based closely on Nydam [1977] VR 430.  

The phrase “merits criminal punishment” is well-accepted and the best available to distinguish civil from criminal negligence, a distinction which has troubled courts since Andrews  [1937] AC 576.  The provision is designed to deal with different levels of criminal negligence for some offences (for example, the different levels of negligence for manslaughter and negligent driving, see Buttsworth [1983] 1 NSWLR 658).    

The idea that recklessness is a more culpable state of mind than criminal negligence is put to the test when one defines criminal negligence as requiring a judgment that the falling short of community standards be so great as to warrant criminal punishment whereas recklessness is found by a mere decision to take a substantial and unjustifiable risk.  This would have been a greater problem had recklessness been defined in terms of foresight of possibility and the taking of an "unreasonable" risk. 

43AM	Offences that do not provide fault elements

43AM(1) provides that if the law that creates the offence does not provide a fault element for a physical element of the offence that consists only of conduct, intention is the fault element for that physical element.

43AM(2) provides that if the law that creates the offence does not provide a fault element for a physical element of an offence that consists of a circumstance or a result, recklessness is the fault element for the physical element.  

The legislation must be specific if intention or recklessness is not the desired fault element for a physical element of the offence.   

Subdivision 4	Cases where fault elements are not required.

43AN	Strict Liability

In common with most Australian jurisdictions, Northern Territory legislation contains a large number of strict liability offences (that is, no fault elements apply) that are not clearly identified as such.  This is often the cause of considerable confusion and a waste of valuable court time.  The aim of 43AN is to ensure that in future, all NT offences will make it clear on their face whether or not they are strict liability offences.  

43AN(1) provides that if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence.  Essentially this means that conduct alone is sufficient to make the defendant culpable.  

43AN(2) also envisages that there will be offences where strict liability applies to a particular physical element of the offence.  There will be no fault element for this physical element, though fault elements could apply to another physical element of the offence.  

Under the Code, all strict liability offences will have a specific defence of mistake of fact.  This defence is not available for those offences without a fault element that are classified as offences of “absolute liability”, which are discussed below.

43AN(3) makes it clear that other defences may still be available for use in strict liability offences. 

43AO	Absolute Liability

This provision deals with offences of absolute liability.  If an offence states that it is one of absolute liability, there are no fault elements and the defence of mistake of fact is not available.  Absolute liability may also apply to a particular physical element of an offence, and in such cases there is no fault element for that physical element and the defence of mistake of fact is not available.  

The absence of a defence of mistake of fact accentuates the difference between strict liability and absolute liability offences.  Other defences, for example that the person’s conduct was not voluntary, would still be available. 

Division 3		Circumstances where there is no criminal responsibility

Subdivisions 1 and 2 set out the principles of criminal responsibility relating to children and young persons and persons intoxicated at the time of their alleged conduct.  The provisions in relation to mental impairment that appear in Chapter 2 of the Model Code are not being enacted in this Part.  Provisions in relation to mental impairment based on the Model Code have already been enacted as Part IIA of the NT Code in an earlier reform.

Subdivision 1	Lack of capacity - of children 

43AP	Children under 10 

This provides that a child under the age of 10 lacks criminal responsibility and therefore cannot be convicted of a crime.  This is currently the law in the NT (section 38 of the Criminal Code).  

43AQ	Children 10 and over but under 14 

This provision also repeats the law as it currently stands in the NT and the rest of Australia.  It provides that a child aged 10 or more but under 14 is not criminally responsible unless the child knows that his or her conduct is wrong.  To establish criminal responsibility in these cases the onus will be on the prosecution to prove beyond a reasonable doubt that the child knew that his or her conduct was wrong.  Since this is essentially a question of fact, it will ultimately lie on the jury to determine on the evidence whether the child in fact knew that the conduct was wrong. 

Subdivision 2	Intoxication 

43AR	Self–induced intoxication 

This is a definition provision that applies to the Code generally but more particularly to 43AS to 43AV, which set out the relevant principles that apply in cases where an alleged offender is intoxicated at the time of the relevant conduct. 

The term “fault element of basic intent” which is defined in clause 4 is pivotal to these provisions and is defined as a fault element of intention for a physical element that consists only of conduct. 

The Commonwealth Explanatory Memorandum expanded on this as follows:

A fault element of intention with respect to a circumstance or with respect to a [result] is not a fault element of basic intent.  
DPP -v- Majewski [1977] AC 480 refers to ‘basic intent offences’ but, because an offence may have a number of fault elements [the definition of “fault element of basic intent”] is drafted in terms of basic intent fault elements rather than basic intent offences.  This is the drafting approach used throughout Chapter 2.

Conceptually [the definition of “fault element of basic intent”] is tied to the definitions of the fault elements in [subdivision 3].  [This definition] applies to a fault element which requires proof of intent (not knowledge or recklessness) and is basic intent in the sense that it only applies to intent to engage in conduct (not intent with respect to circumstances or consequences).  This implements the law in Majewski.  Thus a defendant would not be able to use voluntary intoxication to deny intent to act or omit, but could use it to deny intent, knowledge or recklessness with respect to circumstances or consequences.

A person’s intoxication may be caused by alcohol, a drug or any other substance and will be taken to be self-induced unless it is brought about involuntarily or by fraud or sudden or extraordinary emergency, accident, reasonable mistake, duress or force.  It will also be regarded as not self–induced if a person takes a drug in accordance with the directions of a medical practitioner (in the case of a prescription drug) or the recommendations of the manufacturer (in the case of non prescription drugs) and suffers an adverse or abnormal reaction resulting in intoxication.  This is intended to ensure that persons are not held criminally liable for the adverse or abnormal reactions they may suffer to a drug taken properly and for the purpose for which it was intended.  But these exceptions will not apply if, at the time the person takes the drug, he or she knew or had reason to believe that using the drug would significantly impair his or her judgment or control.     

43AS	Intoxication – offences involving basic intent 

This clause provides that evidence of intoxication that is 
self-induced cannot be considered in determining whether the defendant intended to carry out the conduct (or intended to omit carrying out the conduct) that constituted the offence.  This provision lies at the heart of the Code regime on intoxication and ensures that persons cannot rely on self-induced intoxication to escape criminal liability by claiming that they lacked the “basic intent” to commit the crime.  But as indicated above, this provision does not prevent the court from considering evidence of self-induced intoxication in relation to a fault element of intention with regard to a result or a circumstance.  For example, in the case of an assault, evidence of self-induced intoxication cannot be used to show that the defendant lacked the “basic” intent to carry out the act of punching the victim but such evidence can be used to show that the defendant lacked the intention to bring about the result of inflicting grievous bodily harm on the victim.    
  
The Commonwealth Explanatory Memorandum described the remaining provisions in clause 31, as follows: 

[43AS(2)] provides that the section does not prevent evidence of self-induced intoxication being taken into consideration in determining whether conduct was accidental.  This may apply to the drunk who stumbles into another person lying in the street as opposed to the drunk who kicks the other person.

[43AS(3)] provides that the section does not prevent evidence of self-induced intoxication being taken into consideration in determining whether a person had a mistaken belief about facts if the person had considered whether or not the facts existed.

Under [43AS(4)] a person may be regarded as having considered whether or not facts exist if he or she had considered, on a previous occasion, whether those facts existed in circumstances surrounding that occasion and he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.  This is consistent with [43AX] (Mistake of fact - strict liability) and provides a fair way of dealing with mistake, but at the same time remain[s] consistent with the principles in relation to intoxication.

43AT	Intoxication – negligence as fault element

This clause sets out special rules for intoxication where “negligence’ is a fault element of an offence.  The Commonwealth Explanatory Memorandum described the provisions as follows:

[43AT(1)] provides that if negligence is a fault element for a particular physical element of an offence then in order to determine whether the fault element existed in relation to an intoxicated person, regard must be had to the standard of a reasonable person who is not intoxicated.  Intoxication has no relevance to offences based on negligence, strict or absolute responsibility, unless the issue of voluntariness is raised, because they do not involve any subjective fault element.  For example, the fact that the defendant was intoxicated is not relevant to the reasonable person test in negligence; the reasonable person is not intoxicated.  

[43AT(2)] provides that if intoxication is not self-induced regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.  However, the restrictions on intoxication do not apply to people who become intoxicated involuntarily, for example, by fraud [43AR(1)(b)].  Because the Code allows a consideration of evidence of intoxication to all fault element offences other than those of basic intent and negligence, there is no need to provide for involuntary intoxication in those cases.  However, basic intent and negligence offences raise a special problem.  It would be unfair to hold a person who had become involuntarily intoxicated to the standard of a reasonable person.  In such cases, the defendant should be assessed by reference to the standard of a reasonable person who was intoxicated to the same extent as the defendant.  Intoxication can vary in degree.  An accused who is only moderately intoxicated as a result of being deceived by some third party will still be liable if his or her conduct falls greatly short of the standard of care that a reasonable person, intoxicated to the same extent, would have exercised As in the rest of the Code, it is possible expressly to exclude the operation of these rules on intoxication for specific offences.  This will be considered, offence by offence, in codifying the substantive offences.

43AU	Intoxication – relevance to defences

43AU(1) provides that if any part of a defence is based on actual knowledge or belief, evidence of intoxication can be considered in determining whether that knowledge or belief existed.  However, this does not apply to an offence where each physical element has a fault element of basic intent and any part of a defence is based on actual knowledge or belief.  Subclause 33(2) provides that in such cases evidence of self-induced intoxication cannot be considered in determining whether the relevant knowledge or belief existed.  
    
If any part of a defence is based on reasonable belief, one of two rules will apply in determining whether the reasonable belief exists, depending on whether the defendant’s intoxication is self induced or not.  If it is self-induced subclause 33(3) provides that the standard of a reasonable person who is not intoxicated will apply in determining whether the reasonable belief exists.  If the intoxication is not self-induced subclause 33(4) provides that the standard of a reasonable person intoxicated to the same extent as the defendant will apply.   

43AV	Involuntary Intoxication

This clause provides that a person is not criminally responsible for an offence if his or her conduct is the result of intoxication that is not self-induced.  The Commonwealth Explanatory Memorandum explained:

In Kingston  (1993)  WLR 676 a defence was established akin to duress that the defendant only formed the relevant fault element as a result of involuntary intoxication, and this forms part of the law surrounding Majewski.  The case dealt with a situation where the defendant knew what he was doing when he committed the offence but had been influenced in his conduct as a result of someone else unknown to him spiking his drink.

Subdivision 3	Mistake or ignorance

43AW	Mistake or ignorance of fact - fault elements other than negligence

This provision explains that in certain circumstances a person is not criminally responsible for an offence with a physical element for which there is a fault element other than negligence.  If a person is under a mistaken belief, or is ignorant of relevant facts, when the physical element occurs, the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.  Consistent with the approach based on subjective fault elements, the Code provides that mistaken belief may negative intention, knowledge and recklessness.  This is a codification of the common law position.  The defence of mistake or ignorance of fact is not appropriate in negligence offences.

43AW(2) explains that the reasonableness of the mistake is a factor for the “tribunal of fact” (the jury in the case of trial by jury, the court in other cases) to consider in deciding whether the mistaken belief was actually held.  In other words, if the mistake or ignorance seems very unreasonable, the jury or the court may form the view that the defendant was not genuinely mistaken or ignorant.

As the Commonwealth Explanatory Memorandum explained:

This is consistent with the common law position (Morgan [1976] AC 182) but different from the approach taken under section 24 of the Griffith Codes which requires that the mistake be reasonable.  43AW(1) differs slightly from the Griffith Codes in that there is no explicit reference to the mistaken belief being "honest"; the inclusion of this word would be redundant.

Under [43AW(2)] the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.  Although, strictly speaking, evidence of a mistake is only one sort of evidence which may cast doubt on the presence of a fault element, for the sake of clarity, the Code states the matter explicitly.  

43AX	Mistake of fact – strict liability

This clause explains when a person is not criminally liable for a strict liability offence, or a relevant physical element to which strict liability applies, because of a mistake of fact.  In brief, the defence will apply if, when the physical element occurs, the person considers whether or not facts exist and is under a mistaken but reasonable belief about those facts, and if the person had been correct the physical element would not have constituted an offence.  

The Commonwealth Explanatory Memorandum explained:

This adopts the so-called Proudman v Dayman (1941) 67 CLR 536 defence of reasonable mistake of fact.  Consideration was given to allowing ignorance as well as mistake.  It was argued that there was little moral distinction between mistake and ignorance.  Ultimately it was decided ignorance should not be included because this would make strict liability more like negligence, thus eroding the higher standard of compliance set by strict responsibility.  The proposed section is also consistent with McKenzie v Coles [1986] WAR 224.  

[Subclause 43AX(2)] provides that a person may be regarded as having considered whether or not facts exist if he or she had considered, on a previous occasion, whether they existed in the circumstances surrounding that occasion and he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same or substantially the same as on the other occasion.  This section was included to codify the rule in Mayer v Marchant  (1973) 5 SASR 567 regarding a belief that a state of affairs is continuing.

Consideration was given to the situation where the accused acts contrary to law but under a mistaken belief which negatives a fault element of the offence charged but believes that he or she is committing another criminal offence.  An example is a case in which the accused actually imports heroin believing that he or she is illegally importing dutiable watches.  

The accused must be acquitted of the offence “actually committed”(in the example, knowingly importing heroin) because he or she lacked the relevant knowledge.  Nor can the accused be convicted for illegally importing the watches because he or she has not done so.  The Code requires proof of the physical element of the offence (importing watches) and that is absent.  However, the accused should be liable to be convicted of attempting to commit the offence he or she believed was being committed…

The offence attempted may be of greater, lesser or of equal seriousness compared to the one charged.  However, the attempt conviction should not be made upon the same indictment or in the same trial unless the case was conducted from the beginning on the basis of a possible alternative conviction.  This is consistent with the operation of section 24 of the Queensland and WA Codes, but is a departure from the common law.  There is no specific reference to the onus of proof applicable to these provisions.  They are governed by the general provisions on the burden of proof in [Division 6] of this chapter.  These apply the principles set out in He Kaw Teh (1985) 157 CLR 523.  Hence, once evidence fit to go to the jury has been raised, the prosecution bears the onus of disproving the mistake.

43AY	Mistake or ignorance of law

A person can be criminally responsible for an offence created by statute or regulation even if he or she is mistaken, or ignorant of, the existence or content of an offence or its scope.  However if the law vreating the offence is a statutory instrument, a person is not responsible for an offence if at the time of their conduct the instrument was not known to the person and not published in the Gazette or made available in a way that a person would be aware of its contents by exercising due diligence.

43AY(1) does not apply if the statute or regulation creating the offence so provides or the ignorance or mistake negates a fault element that applies to a physical element of the offence.  

43AZ	Claim of right

This provision explains that a person is not criminally responsible for an offence, in certain cases.  If the offence has a physical element involving property, and when that element occurs, the person is under a mistaken belief about a proprietary or possessory right, which would negate a fault element of the offence, the person is not criminally liable.

The Commonwealth Explanatory Memorandum explained:

It was decided that the "defence" of claim of right should appear in this part of the Code.  "Claim of right" normally negatives a fault element, usually, but not necessarily, one of dishonesty, and the Code should reflect that approach.

Under [43AZ(2)] a person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.

However, [43AZ(3)] precludes claim of right in relation to the use of force.  Thus in an armed robbery where a defendant had a claim of right in relation to the goods taken, the defendant could still be convicted of the armed assault.

Subdivision 4	External factors

This Division provides for a number of general defences that will apply to Territory offences.   

43BA	Intervening conduct or event

The defence of intervening conduct or event only applies to strict and absolute liability offences and to the strict and absolute liability component of fault element offences.  A person is not criminally responsible for such offences if the physical element to which strict or absolute liability applies is brought about by someone else or by a non-human act or event over which the person has no control and could not reasonably be expected to have guarded against.  

The Commonwealth Explanatory Memorandum explained:

The common law contains a defence of "external intervention" for strict and absolute responsibility offences.  The defence is set out by Bray CJ in Mayer v Marchant (1973) 5 SASR 567:

“It is a defence to any criminal charge to show that the forbidden conduct occurred as the result of an act of a stranger, or as the result of non-human activity, over which the defendant had no control and against which he or she could not reasonably have been expected to guard.”

Although this looks like it might be a principle of causation, it operates in practice as a defence based on lack of fault to crimes of strict or absolute liability where a defendant can be proved to have committed the physical element of a strict liability offence.  Despite the fact, for example, that the defendant’s truck exceeded the prescribed weight limit, it did so because a third person had  secretly loaded it with additional items and the defendant could not reasonably have been expected to guard against this.  The defence is not necessary for offences containing fault elements because the defendant will lack the fault element or, in the case of negligence, argue that she or he had taken reasonable care.  

The WA and Queensland Codes have a similar provision in section 23 concerning accident.  Both rules operate in a similar way to provide a defence to the defendant based on lack of fault in offences where no fault element is required.  Because the Griffith Codes do not take the fault element approach and have a large number of offences lacking fault elements, the section 23 defence is more frequently used than in the common law jurisdictions.  Under the Code, which does take the fault element approach, it is only necessary to provide this defence for strict and absolute liability offences.

43BB	Duress

This clause provides that a person is not criminally responsible for an offence that he or she carries out under duress.  A person will be taken to be acting (or omitting to act) under duress only if he or she reasonably believes (a) that a threat has been made and will be carried out unless an offence is committed; (b) that there is no reasonable way that the threat can be rendered ineffective and (c) that the conduct is a reasonable response to the threat.

The Commonwealth Explanatory Memorandum explained the provisions of this clause as follows:

It was decided that the defence should not be further limited in artificial ways.  Where free will is overborne by duress, the nature of the offence is not relevant.  The reasoning of the House of Lords in Howe [1987] 1 All ER 771 and the preceding decisions that duress should not be available in murder cases was not followed.  The approach taken differs from section 31 of the WA Code [and s40 of the NT Code] which limits the applicability of the defence to certain defined kinds of serious offences.  However, the approach taken accords with that taken by the Murray Report for WA (I, 48 and 160) and the VLRC, Homicide at pp. 100-6, but not with the O'Regan Report for Queensland at 37.  

Finally, 43BB(3)] provides that the section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.  This limitation reflects the last substantive paragraph of section 31 [and s40 of the NT Code] of the WA Code.  [43BB(3)] includes the term “associating” to establish a temporal link between the association and the loss of the duress defence.

The defence should not be limited to defined kinds of threats (such as threats to inflict death or grievous bodily harm).  It is usual to say that the defence is not available unless the accused or another has been threatened by death or grievous bodily harm.  This appears in the case-law and also appears in the provisions of the Griffith Codes and the Gibbs recommendations (although the latter would also include threats of "serious sexual assault").  Yeo, "Private Defences, Duress and Necessity" (1991) 15 Crim LJ 139 at 143, argues that there should be no such limitation as a matter of logic-

“Once a person is under the influence of a threat, whatever he or she does depends on what the threatener demands.  The crime demanded might be trivial or serious but it has no necessary connection with the type of threat confronting the accused.  Policy reasons would, however, insist on a requirement that the accused's response was reasonably appropriate to the threat.”

The objective test should provide a sufficient safeguard against abuse of the defence.

43BC	Sudden or extraordinary emergency

This clause provides that a person is not criminally responsible for an offence where his or her conduct is a response to circumstances of sudden or extraordinary emergency.  The defence applies to fault element offences as well as strict and absolute liability offences.  The Commonwealth Explanatory Memorandum explained the provisions of this clause as follows:

The usual term for this defence at common law is “necessity”, but it was felt section 25 of the Griffith Codes is more appropriate, and that the defence should be available only in "a sudden or extraordinary emergency".  In his notes to the Draft Griffith Code, Sir Samuel Griffith stated:

“This section gives effect to the principle that no man is expected (for the purposes of the criminal law at all events) to be wiser and better than all mankind.  It is conceived that it is a rule of the common law, as it undoubtedly is a rule upon which any jury would desire to act.  It may, perhaps, be said that it sums up nearly all the common law rules as to excuses for an act which is prima facie criminal.”

[43BC(2)] provides the test for sudden or extraordinary emergency.  It provides that the section applies if and only if the person carrying out the conduct reasonably believes that circumstances of sudden or extraordinary emergency exist and committing the offence is the only reasonable way to deal with the emergency and the conduct is a reasonable response to the emergency.  

It recognises that an accused person is excused from committing what would otherwise be a criminal act in very limited circumstances.  Like duress, the necessity of the occasion and the response to it are both subject to an objective test.  The approach taken is an amalgam of the principles underlying the common law of necessity and the Griffith Codes equivalent.  The proposed section has been redrafted so that the words “sudden or extraordinary emergency” are not defined in terms of “an urgent situation of imminent peril” but are left to the jury as ordinary words in the English language.  

43BD	Self-defence

This provision simplifies the law on self-defence.  The general principle is set out in 43BD(1), which provides that a person is not criminally responsible for an offence if his or her conduct is carried out in self-defence.  

The elements of the defence are essentially set out in 43BD(2) which provides that it is only self-defence if the person’s conduct is reasonable in the circumstances he or she perceives and the person believes the conduct is necessary for any one or more of the following reasons:

·	to defend himself, herself or another; 
·	to prevent or terminate the unlawful imprisonment of himself, herself or another; 
·	to protect property from unlawful appropriation, destruction, damage or interference; 
·	to prevent any criminal trespass to any land or premises; and
·	to remove from any land or premises a person who is committing criminal trespass.  

The Commonwealth Explanatory Memorandum explained the provisions of 43BD as follows:

The test as to necessity is subjective but the test as to proportion is objective.  It requires the response of the accused to be objectively proportionate to the situation which the accused subjectively believed she or he faced (the words “as perceived by him or her” were added to make this clear).  This approach is consistent with section 45 of the Tasmanian Code.

[43BD(3)(a)] restricts the defence to ensure it does not apply to force that involves the intentional infliction of death or really serious injury for the purpose of protecting property rights.

It was decided not to define “really serious injury”.  These words are the equivalent to “grievous bodily harm”, a term the courts been reluctant to define.  [Note: Chapter 2 of the Model Code was developed prior to Chapter 5 Non Fatal Offences against the person in which MCCOC determined to abandon the common law definition of grievous bodily harm in preference for a statutory definition of “serious harm”.  The reference to “really serious harm” has therefore not been used and in this Bill is replaced by “serious harm” which is the approach taken also by the ACT in its enactment of Chapter 2].  The word “intentional” was added to ensure cases of accidental harm were not covered.  This approach is consistent with the South Australian Criminal Law Consolidation (Self-Defence) Amendment Act 1991 and the Western Australian Criminal Law Amendment Act 1991.

The extension of the right to use force to situations where the purpose is to terminate the unlawful imprisonment of the accused or another is rarely invoked at common law and consequently the law is in an unsatisfactory state.  The leading case Rowe v Hawkins (1858) 1 F&F 91, 175 ER 640 is draconian.  [Subclause 42(2)] extends the current provisions in the Griffith Codes, although it may be argued that subsection 31(3) of the WA Code may be broad enough to cover the situation if the expression "unlawful violence" is wide enough to encompass the concept of unlawful imprisonment.

In [43(3)(b)] a further restriction is placed on the right to use force in self-defence, so that it is not available where the accused was responding to force which was in fact lawful and which the accused knew to be lawful.  However the proposed section does allow a person to use self-defence against a deadly attack by a child or an insane person, even though the attacker is not criminally responsible [43BD(4)].  This provision is based on a similar recommendation made by the VLRC, Homicide, para 226.

Although not of great practical relevance to Federal offences, revision of the law of self-defence is very important in State and Territory legislation to which the same principles will apply.  In this connection the approach taken in [43BD] should be noted.  The decisions in the cases of Runjanic and Kontinnen [1991] 114 on the issue of battered women's syndrome have an important bearing on the defence of self-defence.  Those cases recognised that expert evidence could be admitted to show that women who have suffered "habitual domestic violence are typically affected psychologically to the extent that their reactions and responses differ from those which might be expected from those which might be expected by persons who lack the advantage of an acquaintance with the results of those studies."  The emphasis on subjectivity in the tests for self-defence in [43BD] - compared to objective tests based on the perception of the reasonable person - will allow expert evidence on battered women's syndrome to be used to make the actual perceptions and responses of the woman defendant to be placed before the jury.  The test of the necessity to use force in [43BD] is fully subjective.  The test of the proportionality of the response is objective but it is measured according to the defendant's perception of the situation she confronts.  The approach of drawing the rules relating to defences in a way that would fairly accommodate the responses of women and men was preferred to an approach which would make such syndromes free-standing defences.

43BE	Lawful authority

43BE provides that a person is not criminally responsible for an offence if his or her conduct is justified or excused under law.  The usual example is a police officer who uses physical force to effect an arrest.  Although the officer’s conduct may technically amount to an assault, an offence is not committed because of his or her power (at common law and under sections 212 and 221 of the Crimes Act) to arrest and use reasonable force in circumstances where it is necessary. 

Division 4	Extensions of criminal responsibility

This Division sets out the ancillary and inchoate offences that will apply in the NT.  

43BF 	Attempt

43BF provides that a person who attempts to commit an offence commits the offence of attempt.  That is, it is a separate and distinct crime from the offence the person attempted to commit.  However, in accordance with usual principles the crime of attempt is punishable as if the attempted offence had been committed (43BF(2)).  

Not all conduct directed to the commission of an offence will amount to a crime of attempt.  As 43BF(2) explains, the conduct must be more than merely preparatory to the commission of an offence.  The question whether conduct is merely preparatory is a question of fact to be determined by the tribunal of fact, which in most cases will be a jury.  

The Commonwealth Explanatory Memorandum explained the provisions of this clause, as follows:

The test for determining when a course of conduct has progressed far enough to warrant liability for attempt has been controversial in both Griffith Codes and common law jurisdictions.  Tests such as "unequivocality", "substantial act", "acts of perpetration rather than preparation" and "the last act rule" have been debated in the cases and literature.  The "more than merely preparatory" test catches cases where the defendant has the necessary fault element and has taken a step beyond mere preparation towards the perpetration of the offence.  

There will be cases where the distinction between preparation and perpetration will be difficult.  The best solution to this problem is to leave it to the tribunal of fact.  ...

43BF(4) provides that the fault elements for attempt are intention or knowledge.  The starting point for attempt is that the accused must act intentionally or knowingly with respect to each physical element of the offence attempted. 

It was decided that it should be possible to commit an attempt by an omission, so long as the circumstances are such that the general rules of the Code permits the omission to be treated as criminal.  See the English Law Commission, Attempt (para 13.46) and the Gibbs Committee recommendations (para 21.37-31.38, s.7C(5)) to the same effect.  The use of the definition of "conduct" to achieve this result follows the Victorian provision (Crimes Act, s.321N) and the course advocated in consultations conducted by the Criminal Law Officers Committee.  It follows that it should be possible, in the appropriate circumstances, for a person to be guilty of attempting to commit an offence, the conduct element of which is constituted by an omission.  It is possible to attempt strict and absolute liability offences but intent or knowledge will have to be shown.  This codifies the existing position, see Mohan [1976] QB 1.

43BF(9) adds an important qualification to 43BF(4).  It provides that any “special liability provision” that applies to the primary offence also applies to the attempt to commit the primary offence.  A “special liability provision” is defined as either (a) a provision that applies absolute liability to one or more (but not all) the physical elements of an offence; or (b) a provision that provides that in prosecuting an offence it is not necessary to prove that the defendant knew or believed a particular thing.  

The effect of 43BF(9) is that to establish an attempt it will not be necessary to prove that the defendant had intention or knowledge with respect to those elements of the primary offence to which a special liability provision applies.  Thus if the primary offence states that it is an offence to assault a police officer but that to establish that offence it is not necessary to prove that the defendant knew that the person was a police officer, then it is not necessary to prove that knowledge to establish the crime of attempt to assault a police officer.  

The Commonwealth Explanatory Memorandum explained the remaining provisions of this clause as follows:

43BF(6) provides that a person may be found guilty even if committing the offence attempted is impossible or the person actually committed the offence attempted.  This follows the Gibbs Committee recommendations.  At pages 339-340 of their July 1990 report the Gibbs Committee referred to problems which arose in Britten v Alpogut  (1986) 23 A Crim. R. 254 where the defendant was charged with attempting to import cannabis into Australia.  The evidence established that the defendant believed that he was importing such a substance, but the actual substance found in the concealed bottom of a suitcase collected by the defendant was not cannabis - it was a substance which was not prohibited.  The Gibbs Committee noted that if the English case of Smith [1975] AC 476 were to be followed in Australia, on no possible analysis of the facts could the defendant, under the existing law, be convicted for the attempted importation charge.  Yet the defendant had done all in his power to commit the offence of importing prohibited drugs and was frustrated in this purpose only by the fact that the packages did not contain the drug.  It follows that if defendants such as Alpogut were not punished, they might repeat the attempt and next time succeed.  Therefore the Code makes it clear impossibility will not be a bar in this way.  As a matter of consistency, the same rule also applies to conspiracy and incitement [see clauses 48 and 47 respectively]. 

43BF (7) provides that a person who is found guilty of attempting to commit an offence cannot be subsequently charged for the completed offence.  This is called “the doctrine of merger” which says that where the same facts constitute both a felony and a misdemeanour, the misdemeanour "merges" into the felony and hence, for all intents and purposes, disappears....    

43BF(8) provides that any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.  The word "defences" was added to take account of Beckwith (1976) 135 CLR 569.

43BF(10)provides that there can be no offence of attempt in relation to 43BG (complicity and common purpose) or 43BJ (conspiracy).  

43BG 	Complicity and Common Purpose

43BG provides that a person who aids, abets, counsels or procures the commission of an offence by someone else is taken to have committed the offence and is punishable as if the person in fact committed the offence.  The Code retains the traditional formula of "aid, abet, counsel or procure" because despite some difficulties with those terms, the meaning of the words is well understood.  

For this offence to apply the other person must in fact commit an offence and the conduct of the defendant must in fact have aided, abetted, counselled or procured the offence by the other person 43BG(2).  Further, the defendant must have intended either (i) that his or her conduct would aid, etc the commission of any offence of the type the other person committed; or (ii) intended that his or her conduct would aid an offence and was reckless as to the possibility that the other person would commit the offence he or she in fact committed.  Recklessness in this context amounts to an awareness of a substantial and unjustifiable risk that another offence beyond the one agreed would be committed.  Thus a person who aids another to commit an armed robbery will also be guilty of murder if the other person commits murder and the first person had foreseen a substantial risk of that occurring, and it was unjustifiable to take that risk (43BG(3)).

43BG(6) explains that a person may be found guilty of this offence even if the other person has not been prosecuted or has not been found guilty of the primary offence.  
 
As in the case of the offence of attempt, 43BG(7) provides that any “special liability provision” that applies to an offence will also apply to the offence of aiding, abetting, counselling or procuring the commission of the offence.  

43BG(5) is an important qualification to this offence in that it provides that a person cannot be found guilty of aiding etc the commission of an offence if, before the offence was committed, the person terminated his or her involvement and took all reasonable steps to prevent the offence. 

The Commonwealth Explanatory Memorandum explained:

The defendant is required to take “all reasonable steps to prevent the commission of the offence”.  What will count as taking all reasonable steps will vary according to the case but examples might be discouraging the principal offender, alerting the proposed victim, withdrawing goods necessary for committing the crime (eg a getaway car) and/or giving a timely warning to an appropriate law enforcement authority.  The models for this provision are s.2.06(6)(c) of the US Model Penal Code and section 8(2) of the Western Australian Code.  A similar defence exists at common law, see Croft [1944] KB 195;  Beccara and Cooper (1975) 62 Cr App R 212.

43BH 	Innocent agency

This clause provides that a person is taken to commit an offence if he or she has all the fault elements that apply to the physical elements of an offence and procures another person to engage in the conduct that makes up the conduct part of the physical elements of that offence.  The person is punishable for this offence as if he or she had committed the offence.   

The Commonwealth Explanatory Memorandum explained:

The doctrine of "innocent agency" is well known to the criminal law.  Proposed section [43BH] draws on section 2.06(2)(a) of the US Model Penal Code and section 7 of the WA Code.  It is not necessary that the defendant cause the innocent agent to commit all the elements of the offence.  So, for example, if the defendant assaults a victim while an innocent agent steals from the victim, then the defendant will be guilty of robbery.  The defendant has committed the assault element personally and has committed the theft element via an innocent agent.  The bracketed words “whether or not together with any conduct engaged in by the procurer” are added to make this clear.  

The word “innocent” is not included to avoid the necessity for the prosecution to prove that the agent was innocent.  The section now overlaps with complicity.  This makes no difference to the defendant’s liability since, if the agent was not innocent, the defendant would be guilty by reason of complicity.

43BI 	Incitement

A person who urges another to commit an offence commits the offence of incitement.   

The Commonwealth Explanatory Memorandum explained:

The word “urge” was chosen carefully.  The Gibbs Committee Draft Bill, s.7B(1) preferred "incitement" rather than spelling out "counsels, commands or advises".  There are differing verbs employed in this area with little consideration of what the differences, if any, may be.  The US Model Penal Code uses "encourages or requests" (s.5.02(1)).  Section 7A of the Commonwealth Crimes Act currently uses "incites to, urges, aids or encourages".  The English Draft Code (s.47(1)) and the Victorian Crimes Act (s.321G(1)), like the Gibbs proposal, use "incite" only.  The Canadian Draft Code collapses complicity and incitement, but refers to "advises, encourages, urges, incites".  From concern that some courts have interpreted “incites” as only requiring causing rather than advocating the offence the word “urges” is preferred as avoiding ambiguity.

The fault element that must be proved to establish the offence of incitement is intention.  That is, the person must intend the incited offence to be committed (43BI(2)).  However, as in the case of the offence of attempt, subclause 43BI(6) provides that any “special liability provision” that applies to an offence will also apply to the incitement offence.  Similarly, subclause 43BI(5) provides that any defences, procedures, limitations or qualifying provisions apply also to the offence of incitement in respect of that offence.
  
Consistent with the position taken in relation to attempt, 43BI(4) provides that a person may be found guilty of incitement even if the intended offence is impossible. 

For associated offences, the Commonwealth Explanatory Memorandum explained:

43BI(7)states that it should not be possible to be guilty of inciting to incite, inciting to conspire, or inciting to attempt.  There has to be some limit on preliminary offences.  This follows the position taken by the Gibbs Committee (paras 18.41-18.46) rather than that taken by the English Law Commission.  The Gibbs Committee did not think it necessary to include a provision to achieve the abolition of incitement to incite in its Bill (s.7B) but, given the intention to codify, it would appear to be necessary.

However, there will be no bar to a charge of attempting to incite.  The charge exists at common law (see Crichton [1915] SASR 1 and the English authority cited in Meehan, The Law of Criminal Attempt (1984) at 201, note 392).  This is primarily designed to deal with the situation in which a communication amounting to an incitement does not, for some reason, reach its intended recipient.  This is consistent with s.5.01(3) US Model Penal Code, and the English Law Commission, Attempt, para 2.121.

The maximum penalties that apply to the offence of incitement are set out in 43BI(7).  The Commonwealth Explanatory Memorandum explained:

The penalties have been graded to ensure that the penalty imposed for incitement properly reflects the gravity of the offence.  The penalties reflect those recommended by the Gibbs Committee in its July 1990 report which at page 243 described the current general penalty under section 7A of the Crimes Act 1914  which is only imprisonment for 12 months (or a fine of $6000 or both) as inadequate. 

43BJ 	Conspiracy

This provision will make it an offence for a person to conspire with another to commit an offence punishable by more than 1 year imprisonment or by a fine of 200 penalty units ($22,000) or more, or both.  An offence of conspiracy is punishable as if the conspired offence had been committed. 

The offence is limited to conspired offences punishable by more than 1 year imprisonment (or the monetary equivalent) because it is considered that the conspiracy offence should not apply to minor offences.

The Commonwealth Explanatory Memorandum explained the provisions of the conspiracy offence as follows: 

43BJ(2) provides that for the person to be guilty, the person must have entered into an agreement with one or more other persons and the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement and the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

43BJ(2)(a) & (b)] are drafted to clearly separate the agreement component of the conspiracy from the intent to commit an offence pursuant to that agreement.  It was decided that intention was required and that recklessness would not suffice.  This is in accordance with the proposals of the Gibbs Committee, (s.7D(1)(c)), and the common law (Gerakiteys (1983) 153 CLR 317).  The concept of recklessness is foreign to an offence based wholly on agreement.

The requirement of intention to commit the crime which was the object of agreement 43BJ(2)(b) will prevent conviction for conspiracy where, for example, the only parties to the agreement are the accused and an agent provocateur.

43BJ(2)(c) requires that the accused or at least one other party to the agreement committed an overt act pursuant to the agreement.  The view is taken that a simple agreement to commit a criminal offence without any further action by any of those party to the agreement is insufficient to warrant the attention of the criminal law.  The requirement of overt act is common in American law, see s.5.03(5) US Model Penal Code.  The requirement was criticised in some submissions on the basis that it is vague.  It is understood that the requirement works well in the American jurisdictions which have it and there is no reason to believe it will not work in Australia.

43BJ(4)(a) provides that a person may be found guilty of conspiracy to commit an offence even if committing the offence is impossible (this is consistent with attempt and incitement).

43BJ(4)(b)] provides that the person may be found guilty if the other party to the agreement is a body corporate.  It is well established at common law that a company can be guilty of conspiracy, see ICR Haulage [1944] 1 KB 551; Simmonds (1967) 51 Cr App R 316.  

It was decided that it should be possible for a person to commit a conspiracy even where the only other party to the agreement is a person for whose benefit the offence exists.  This is contained in paragraph 43BJ (4)(c).  An example would be an agreement between a child under the age of consent and an adult to commit the offence of unlawful sexual intercourse with the child.  [For similar reasons the paragraph also provides that a person can be guilty of a conspiracy even if the other parties to the agreement are not criminally responsible].     

43BJ(4)(d)provides that a person may be found guilty even though other parties to the alleged agreement have been acquitted of the conspiracy, unless a finding of guilt would be inconsistent with those acquittals....  This decision is in accord with Darby (1981) 148 CLR 668 and section 321B Crimes Act 1958 (Vic).  The Gibbs Committee concluded that the courts must not be hindered from examining the merits of what may be a quite complex situation by rules about formal inconsistencies on the face of the record.

On the other hand, under 43BJ(6), it was decided that the Code should provide that a person who is the protective object of an offence cannot be found guilty of a conspiracy to commit that offence.

43BJ(6) provides for disassociation from the offence.  Consistent with the requirement of an overt act, there should be a defence of withdrawal or disassociation, for there would be time between the agreement and the commission of the overt act for that to take place.  Unlike attempt and incitement, the disassociation here comes before there has been a criminal act.  In that case, the policy of encouraging people to desist from criminal activity prevails.  As for complicity, the requirement was changed from “making a reasonable effort” to taking “all reasonable steps” to prevent the commission of the offence agreed on.  Again, what amounts to taking all reasonable steps will vary from case to case.  Examples might include informing the other parties of the withdrawal, advising the intended victims and/or giving a timely warning to the appropriate law enforcement agency. 

43BJ(8) permits the use of all defences, principles, limitations or qualifying provisions that apply also to the offence of conspiracy to commit that offence.  

Consistent with the position of the Code concerning attempts and incitement 43BJ(a) provides that any “special liability provision” that applies to an offence will also apply to the conspiracy offence (see the commentary on subclause 44(6)).  

In the past the courts have been critical of the “overuse” of the conspiracy offence.  To address this concern 43BJ(7) allows a court to dismiss a conspiracy charge if it considers that the interests of justice require it to do so.  The most likely use of the power to dismiss will arise when the substantive offence could have been used, a criticism repeatedly voiced by the courts (see, for example, Hoar (1981) 148 CLR 32).  

In addition, 43BJ (10) provides that the consent of the Attorney-General or Director of Public Prosecutions must be obtained before conspiracy proceedings can be commenced.  However, in recognition of the urgent circumstances that may sometimes arise, 43BJ(11) provides that a person may be arrested, charged, remanded in custody or on bail before consent is given.    

Division 5	Corporate criminal responsibility

43BK	General Principles

This clause provides that the Code applies to companies in the same way as it applies to natural persons, subject to the modifications set out in Division 5 and any other modifications that may be necessary because criminal responsibility is being imposed on companies rather than natural persons.  The “other modifications” (not contained in this Division) will be developed by the courts as this area develops.  Essentially, this provision has the effect that the general principles of liability, such as the definition of conduct in 43AD and the definitions of the various fault elements in clauses Subdivision 3 and Division 2 (eg. recklessness in clause 20) apply to companies.  

As the Note suggests this clause should be read in conjunction with section 161 of the Legislation Act 2001 and, in particular with subsection 161(2), which provides that an offence provision can apply to a corporation even if the offence is punishable by imprisonment only.

43BL 	Physical elements

43BL to 43BN explain how the physical and fault elements of an offence are attributed to companies. 

43BL provides that a physical element of an offence consisting of conduct is taken to be committed by a company if it is committed by an employee, agent or officer of the company acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority.  A person’s actual or apparent authority may extend beyond the actual or apparent scope of his or her employment.   

As 43AE explains, a physical element of an offence may be conduct, a result of conduct or a circumstance in which conduct or a result occurs. 43BL only refers to a physical element “consisting of conduct”.  However, if an individual’s conduct is attributed to a company under this clause, the existence of any circumstance (relevant to the offence) in which his or her conduct happens will become a circumstance in which the attributed conduct of the company happens.  This will also be the case in relation to any requirement for a result of conduct.       

43BM 	Fault elements other than negligence

A company is taken to have a fault element of intention, knowledge or recklessness in relation to an offence if it expressly, tacitly or impliedly authorises or permits the commission of the offence.  43BM(2) sets out the ways in which it may be established that a company authorised or permitted the commission of an offence. 

The Commonwealth Explanatory Memorandum explained:

These include proving that the body corporate board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence 43BM(2)(a).

They also include proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence 43BM(2)(a).

According to 43BM(2)(a).and (b)] it may be shown that the conduct was performed or tolerated by the board of directors or a high managerial agent (defined as someone whose position in the company can be said to represent the policy of the company 43BM(b).  The test is based almost exactly on s.2.07(1)(c) US Model Penal Code.  It is envisaged that this provision will be used in one-off situations where it cannot be said that there is any ongoing authorisation of the conduct.  The company has a defence in the case of a high managerial agent if the company proves that it used due diligence to prevent the offence43BM(2)(c).  The defence is not available in the case of the board of directors itself.

A further means by which it may be proved that a body corporate authorised or permitted the commission of the offence is proof that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provisions 43BM(2)(c).

A final means of proving the authorisation or permission is proving the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision 43BM(2)(d).

43BM(4) provides that factors relevant to the corporate culture provisions include whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate and whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.

“Corporate culture” is defined in 43BM(b  to mean an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities take place.

43BM(2)(c)deals with the more elusive situation of implicit authorisation where the corporate culture encourages non-compliance or fails to encourage compliance.  The rationale for holding corporations liable on this basis is that "...the policies, standing orders, regulations and institutionalised practices of corporations are evidence of corporate aims, intentions and knowledge of individuals within the corporation.  Such regulations and standing orders are authoritative, not because any individual devised them, but because they have emerged from the decision making process recognised as authoritative within the corporation."  (See Field and Jorg, "Corporate Manslaughter and Liability: Should we be going Dutch?" [1991] Crim LR 156 at 159). 

The sub[clause] extends the Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 173 rule which recognises that corporations can be held primarily responsible for the conduct of very senior officers.  The rationale for this primary responsibility is that such an officer is acting as the company and the mind which directs his or her actions is the mind of the company.   

It extends the Tesco rule by allowing the prosecution to lead evidence that the company's unwritten rules tacitly authorised non-compliance or failed to create a culture of compliance.  It would catch situations where, despite formal documents appearing to require compliance, the reality was that non-compliance was expected.  For example, employees who know that if they do not break the law to meet production schedules (eg by removing safety guards on equipment), they will be dismissed.  The company would be guilty of intentionally breaching safety legislation.  Similarly, the corporate culture may tacitly authorise reckless offending (eg recklessly disregarding the substantial and unjustifiable risk of causing serious injury by removing the equipment guards).  The company would be guilty of a reckless endangerment offence. 

43BM(5) provides that if recklessness is not a fault element in relation to a physical element of an offence, 43BM(2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.

43BN 	Negligence

Where the relevant fault element of an offence is negligence and no individual employee, agent or officer of the company has that fault element, the company may be taken to be negligent if its conduct is negligent when viewed as a whole. 

The Commonwealth Explanatory Memorandum explained:

It is not necessary to establish that any one employee, etc was negligent.  If the conduct of the company when viewed as a whole (that is by aggregating the acts of its servants, agents, employees and officers), is negligent, then the corporation is deemed to be negligent.  In some cases this may involve balancing the acts of some servants against those of others in order to determine whether the company’s conduct as a whole was negligent.  This changes the common law on this point, see R v HM Coroner for East Kent; ex parte Spooner (1989) 88 Crim App R 10.  

43BN provides that the alleged negligence of a company may be evidenced by the fact that the prohibited conduct was substantially attributable to inadequate management, control or supervision of the conduct of one or more of its employees, agents or officers or failure to provide adequate systems for providing relevant information to relevant people in the company.  

43BO 	Mistake of fact – strict liability

This provision explains the mechanism by which a company can rely on the “mistake of fact defence” 43AX.  It provides that a company can only rely on the defence if the employee, agent or officer who carried out the conduct had a mistaken but reasonable belief about facts, which if they existed, would have meant that the conduct did not constitute an offence and the company proves that it exercised appropriate diligence to prevent the conduct.  This is consistent with the general approach of this Part on corporate criminal responsibility.  

This provision should be read with 43BN(4), which provides that the alleged failure of a company to exercise appropriate diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to inadequate management, control or supervision of the conduct of one or more of its employees, agents or officers or failure to provide adequate systems for providing relevant information to relevant people in the company. 

43BP 	Intervening conduct or event

43BP provides that a company cannot rely on the defence of “intervening conduct or event” 43BP on the ground that a physical element of an offence was brought about by another person, if the other person is an employee, agent or officer of the company.

Division 6	Proof of Criminal Responsibility

43BQ	Legal Burden of proof

The “legal burden” means the burden of proving the existence of the matter to which the burden relates.

43BR	Legal burden of proof - prosecution

This provision places on the prosecution the legal burden of proving every element of an offence relevant to the guilt of the person charged.  The prosecution also bears the legal burden of disproving any matter in relation to which the defendant has discharged any evidential burden of proof which has been imposed on the defendant.

The Commonwealth Explanatory Memorandum stated:

One of the most respectfully cited statements in the law texts is the description in Woolmington v Director of Public Prosecutions (1935) AC 462 by Lord Sankey of the duty of the prosecution to prove the prisoner's guilt as "the golden thread always to be seen throughout the web of the English Criminal Law".  Lord Sankey stated that the principle was subject to the special rules as to sanity and "subject also to any statutory exceptions".

Although it may seem unusual to include an apparently procedural issue in a chapter of the Code which deals with the general principles of responsibility, it is the combination of positive fault elements with the location of the burden of proving those elements on the prosecution that gives force to Woolmington.

43BS	Standard of proof - prosecution

This provision explains the standard of proof that applies to a legal burden of proof on the prosecution.  The general (default) rule is that a legal burden on the prosecution must be discharged beyond reasonable doubt, but legislation may apply a different standard to a particular offence.

43BT	Evidential burden of proof

The “evidential burden”, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.   

43BU	Evidential burden of proof - defence

This provision explains that the general rule is that where a burden of proof is cast on the defendant, it is an evidential burden only.  A defendant who wishes to deny criminal responsibility by relying on a provision of Division 3 bears an evidential burden in relation to that matter.  The general rule can be displaced, as provided by 43BU, which is explained below.

43BU(3) makes it clear that a defendant who wishes to rely on an exception, exemption, excuse, justification or qualification to an offence bears an evidential burden in relation to that matter.  The exception, exemption, excuse, qualification, or justification need not accompany the description of the offence in order to apply to that offence.  Similarly, the clause makes it clear that in the case of a strict liability offence that allows the defence of reasonable excuse, the defendant has an evidential burden in relation to the defence.  

A defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or the court.

The question whether an evidential burden has been discharged is one of law.  

The Commonwealth Explanatory Memorandum stated:

These provisions accord with basic principles accepted in all jurisdictions.  They have been reiterated by the High Court in He Kaw Teh (1984-5) 157 CLR 203.

There have been differences of opinion as to what onus is transferred to an accused.  For example, the defence of honest and reasonable mistake under the Griffith Codes only requires the accused to put the matter in issue, and the onus is on the prosecution to negative it: Loveday v Ayre and Ayre; Ex parte Ayre and Ayre (1955) St R Qd 264.  At common law, in offences not involving a mental element, it had been thought that the onus on the accused was persuasive: Maher v Musson (1934) 52 CLR 100, Proudman v Dayman (1041) 67 CLR at 541, until the High Court in He Kaw Teh v The Queen (1984-5) 157 CLR 523 aligned the common law position with that of the Code jurisdictions — (see pp. 535, 558-9, 574, 582 and 591-4).  It would also appear that there is greater scope at common law to remove a case from the jury because the question of whether an evidential onus is discharged is one of law, whereas in Griffith Codes jurisdictions even slight evidence would render the question one of fact for the jury.

43BV	Legal burden of proof - defence

43BV makes it clear that a burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly specifies that the burden of proof in relation to the matter in question is a legal burden, or requires the defendant to prove the matter, or creates a presumption that the matter exists unless the contrary is proved.

43BW	Standard of proof - defence

This provision explains the standard of proof for a legal burden of proof borne by a defendant.  The defendant’s legal burden must be discharged on the balance of probabilities.

43BX	Use of averments

This provision explains that a law which allows the prosecution to make an averment is taken not to allow the prosecution to aver any fault element of an offence. 

The Commonwealth Explanatory Memorandum explained:

Averment provisions in some legislation permit the prosecutor to allege matters of fact in an information or complaint.  The averment amounts to prima facie evidence of the matters averred.  The Griffith Codes did not contain averment provisions, although the Queensland Code now does (eg s.638) and the WA Code contains deeming provisions.  In the words of Dixon J in R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507-508, an averment provision:

“...does not place upon the accused the onus of disproving the fact upon which his guilt depends but, while leaving the prosecutor the onus, initial and final, of establishing the ingredients of the offence beyond reasonable doubt, provides, in effect, that the allegations of the prosecutor shall be sufficient in law to discharge that onus.”

The policy assumption underlying the Code is that averment provisions are generally inappropriate.  The Code provides that the prosecution must not aver the intention of the defendant or other fault elements expressed by the provision creating the offence.

Division 7	Geographical application

This Division applies NT offences beyond the territorial limits of the ACT in certain cases.  Following criticism of an earlier model (see Kirby J of the High Court describing the South Australian equivalent of section 3 as an “imperfect provision” (Lipohar [2000] 168 ALR 8)), the Model Criminal Code Officers Committee reviewed the regime in its report on Chapter 4 of the Code and Division.7 is now the recommended regime for enactment by the States and Territories.  

As the Commonwealth must have regard to different considerations in applying its law extraterritorially, the regime it has enacted is different to the regime recommended for the States and Territories.  Accordingly, the observations quoted below on the respective provisions of Part 2.7 are reproduced from Chapter 4 of the report of the Model Criminal Code Officers Committee entitled, “Damage and Computer Offences and Amendment to Chapter 2: Jurisdiction”.    

43BY	Application and effect of Division

This provision explains the purpose of the Division, which is to apply NT offences beyond the territory of the NT and Australia in cases where there is a  “geographical nexus” between the offence and the NT (43BY).  A geographical nexus is established if the offence is committed wholly or partly in the NT or if it is committed wholly outside the NT and the offence has an effect in the NT (see the commentary to  43CA). 

The Division will give extraterritorial effect to all NT offences unless the law that creates an offence expressly or implicitly excludes the operation of the division with respect to that particular offence.  For example where the law makes the location of the offence an element of the offence (such as a law that prohibits entry to a “restricted area” in the NT) or the law provides that the particular offence applies outside the NT whether or not there is a geographical nexus.  

43BZ	Interpretation for Division

43BZ defines what is meant by the terms “the place where an offence is committed” and “the place where an offence has an effect”, for the purposes of this Division, and in particular, for the definition of “geographical nexus” in 43CA(2)  

The Model Criminal Code Officers Committee explained at page 277:

The definition of the place where the offence is committed is defined to mean the place in which the physical elements of the offence occur.  This definition requires two comments.  First, it is meant to refer to any place in which any of the physical elements of the offence occur.  Offences may, both in current law and in the proposed law, occur in more than one place at any given time.  Second, the term “physical elements” is a technical term under the Code and refers to the definition of “physical elements” in [43AE] of Chapter 2 of the Model Criminal Code - that is, conduct, circumstances or results.

The definition of the place where an offence has an effect refers, inter alia, to any place whose “peace, welfare or good government” is threatened by the offence.  The phrase “peace, welfare or good government” has been used as a demarcation of the constitutional limitation placed upon the otherwise plenary legislative power of a State.  The High Court has indicated that “peace, welfare or good government” bears the same meaning as “peace, order or good government” [Union Steamship v King (1988) 166 CLR 1 at 9].

43CA	Extension of offences if required geographical nexus exists

This is the central provision of Division 7.  It provides that an offence against the law of the NT is committed if there is a geographical nexus between the NT and the offence and, leaving aside any geographical considerations, all physical and mental elements of the offence also exist.  A geographical nexus will exist in either of two ways.  First, it will exist if the offence is committed wholly or partly in the NT, regardless of whether it has an effect in the NT; or the offence is committed wholly outside the NT but it has an effect in the NT (43CA(2)).   
 
The Model Criminal Code Officers Committee explained at page 279:

This is the key section in which the essential changes to the current model are made.  It defines the necessary geographical nexus that must exist between the offence and the State or Territory claiming the power to try the offence.  The section simply claims power to try the offence if the offence is committed wholly or partly in the State or Territory (that is to say, one or more of the physical elements occur in the State or Territory) or, if no physical elements occur in the State or Territory, the offence has an effect (as defined above) in the State or Territory.

43CB	Geographical application - double criminality

This provision clarifies the extent to which NT offences will have extraterritorial application depending on whether an offence is partly committed in the NT or wholly committed outside the NT.  

If the conduct of a crime takes place partly in the NT and partly in another place (including another place outside Australia), the conduct will be an offence against NT law even if it is not an offence in that other place (43CB(1)).  If the relevant conduct takes place completely outside the NT (including outside Australia) the NT offence provisions will only apply in either of two cases; that is,

·	only if the conduct is also an offence where it is committed; or if it is not,
·	the tribunal of fact is satisfied that the offence is such a threat to the peace, welfare or good government of the NT that it justifies criminal punishment in the NT.      

The Model Criminal Code Officers Committee explained at page 279:

There is a good argument that, where no physical elements occur in the State or Territory, there should be a requirement that those who have acted entirely lawfully in the place where all of the elements of the offence occurred should not be exposed to criminal liability in another place unless that other place has such an overriding interest in the suppression of that particular conduct that the reach of the statute (via this [Division]) and hence the imposition of criminal liability is warranted.  This matter is dealt with in [43CB(2)(b)].  This is inevitably a question upon which no hard and fast rules can be devised, for this [Division] deals with a potentially enormous range of behaviours.  Moreover, the inherent vagueness of such a criterion is not unprecedented - for example, the key criterion of “dishonesty” in relation to a wide variety of offences in Chapter 3 [relating to crimes of theft, fraud, bribery and related offences] is similarly one which is notoriously incapable of precise delineation.    

43CC	Geographical application – procedure

43CC sets out procedural matters relating to the extraterritorial application of NT offences .  The Model Criminal Code Officers Committee explained at page 281:

These procedural provisions are a minor redraft of the existing SCAG model with no significant changes of substance.  The only change worthy of note is that it includes a provision dealing with the situation in which there is a problem of proving a geographical nexus and the jury would not acquit the defendant but would rather find him or her not guilty on the ground of mental impairment.  [43CC(2)(d)] clarifies the position by requiring a finding of not guilty on the grounds of mental impairment if they were the only grounds on which the trier of fact would have found the person not guilty of the offence.  This is necessary to ensure these cases are appropriately recognised because they do not involve an acquittal.

43CC(1) provides that the geographical nexus of an offence to the NT is presumed to exist unless rebutted by the defendant on the balance of probabilities.  

If a defendant disputes the existence of the geographical nexus, the court is required to proceed with the trial in the usual way and a determination as to whether the requisite nexus existed will be made by the tribunal of fact at the end of the trial (43CC(2)(a) and (b)).  If the issue is raised before the trial, the court must reserve the matter for consideration at the trial (43CC(5)).    

If at the end of the trial the tribunal of fact is satisfied on the balance of probabilities that the geographical nexus does not exist, it must return a finding to that effect and the court must dismiss the charge (paragraph 43CC(2)(b)).  However, if it finds the defendant not guilty for “non geographical considerations”, it must return a verdict of not guilty unless the only reason for this finding is the defendant’s mental impairment, in which case it must return a verdict of not guilty on account of the defendant’s mental impairment (43CC(2)(c) and (d)).

In some cases it is open to the court to make a determination about a defendant’s guilt or innocence for an offence not charged before trial but for which the law allows the tribunal of fact to bring in an alternative verdict.  In such cases the provisions of this clause also apply to alternative verdicts (43CC(3)) and the tribunal of fact may return a finding of guilt for the alternative offence unless it is satisfied on the balance of probabilities that the geographical nexus does not exist for the alternative offence (43CC(4)).    

43CD	Geographical application – suspicion etc that offence committed

This provision explains that a person who may exercise a function under law if he or she suspects or believes (as the case may be) on reasonable grounds that an offence has been committed, can perform that function whether or not he or she has any suspicion or belief about whether the geographical nexus exists for the offence.  This is consistent with the provisions of 43CC which assign the matter of geographical nexus to be decided at trial by the tribunal of fact.    

Clause 8.	Repeal and substitution of Part VI, Division 2 Heading.

This clause repeals the current heading of Part VI Division 2 and replaces it with a heading that will be consistent with the offences in the Division following the repeal of section 154.

Clause 9.	Repeal of section 154.

This clause repeals section 154.  Section 154 provided for offences concerning dangerous acts or omissions.  Following the enactment of the new manslaughter offence (see clause 11 below) and reckless endangerment, negligent harm and culpable driving offences (see clause 13 below) section 154 is no longer required. 

Clause 10.		Repeal and substitution of section 163 (Manslaughter).

This clause repeals the current section 163 crime of manslaughter and substitutes a new section 163 crime of manslaughter.  Under the present Code structure the crime of manslaughter arises in two circumstances.  First, where the fault element for murder has been made out but culpability is lowered because a partial excuse has been made out (for example provocation).  Secondly, manslaughter arises where the prosecution can prove that the accused foresaw the victim’s death as a consequence of his or her conduct.  The current section 163 crime of manslaughter is considerably narrower than in other jurisdictions because it requires a subjective mental state rather than the objective state imposed by criminal negligence standards that apply at common law and under the other codes for this crime.

Under the new provision, in addition to manslaughter existing as an alternative to murder following a partial excuse, a person will be guilty of the crime of manslaughter if he or she engages in conduct that causes the death of another person and is either reckless or negligent as to causing the death by that conduct.  The standard for negligence is a criminal standard.  The standards for recklessness and negligence are provided in new Part IIAA.  

Clause 11.	Repeal of section 167.

This clause repeals section 167.  Section 167 provided for the punishment for manslaughter.  A separate provision is no longer required because the punishment for the crime is contained within the new section 163.

Clause 12	New Part VI, Division 3A

This clause creates a new Part VI, Division 3A in the Code that provides for new offences following the repeal of section 154.
Subdivision 1 - Interpretation

174A	Causing death or harm

The Model Criminal Code Officers Committee was of the view that the objective of this area of law (offences against the person) should be to protect the physical and mental integrity of the victim, and should therefore be focused primarily on protection from harm and the fault by which the harm is caused.  The model provisions therefore dispense with the traditional approach of focusing on specific type of act by which the harm was caused, for example “assault” or “wounding” and are cast instead in terms of “causing” the prohibited consequences.  174A is a provision that applies to the offences for which causing death or harm is an element and it provides for circumstances in which a person’s conduct will be taken to have caused death or harm.  A person’s conduct causes death or harm if it substantially contributes to the death or harm.  

174B	Danger of death or serious harm

This provision deals with the type of conduct that may give rise to a danger of death or serious harm for the purpose of the endangerment provisions of this Division.  Specific reference to the risk of catching a disease is made to make criminal the endangerment of the life or health of another by the reckless transmission of a disease or the disposition to develop such a disease.  HIV/AIDS and asbestosis are mentioned by MCCOC as obvious examples.

174B(3) is provided to avoid the use of mathematical assessments of risk being used to obscure the question of whether or not a risk was a ‘real’ one.  174B(4) provides that it is not necessary for the prosecution to prove that a person was actually placed in danger of death or serious harm.  This is because the focus of the endangerment offences is to punish great risk taking and not the creation of the risk itself.  174B(1) deals with the degree of danger that is required, providing that it must be a real and not merely theoretical danger of death or serious harm.  
Subdivision 2 - Offences

174C	Recklessly endangering life

This provision creates an offence where a person engages in conduct that gives rise to a danger of death and is reckless as to the danger of death arising from his or her conduct.  Combined with 174A it defines an offence where there is conduct that creates a substantial risk that is known to be unjustifiable.

174D	Recklessly endangering serious harm

The offence created by this provision is identical to that under 174D except that level of endangerment is serious harm not death.

174E	Negligently causing serious harm

The level of negligence required for this offence is the same as that required from criminal negligence manslaughter, that is, it requires a higher level of culpability than the civil standard.  It follows the test for criminal negligence approved by the High Court in Wilson (1992) 61 A Crim R 63.  The MCCOC considered the creation of such an offence necessary to criminalize instances of gross negligence that cause serious harm such as the removal of safety equipment from the work place.

174F	Driving motor vehicle causing death or serious harm

This provision will create a specific offence of causing death or serious harm by driving a motor vehicle dangerously.  Driving dangerously includes being under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vehicle, driving at a speed that is dangerous or driving in a manner that is dangerous to another person.  

These offences are designated as strict liability offences.  This standard is consistent with similar offences in other jurisdictions.  That is no fault element is required to be proved only the objective physical elements.  A defence of mistake of fact is however available.

MCCOC did not recommend a specific offence in relation to causing death or serious harm by driving.  It is notable however that all other States and the ACT do criminalize this conduct, generally by strict liability offences.  (see for example Jiminez (1992) 173 CLR 572).  In the Northern Territory this conduct was previously prosecuted under the section 153 Dangerous Act provision.

The creation of this offence does not preclude the prosecution of cases where death or serious harm results from conduct in driving a vehicle under more serious criminal offences, for example as manslaughter by recklessness or negligence and may act as an alternative charge on such prosecutions.

Subdivision 3 – Aggravated Offences

174G	Increased penalty for an aggravated offence

174H provides a list of circumstances in which the offence may be considered to be aggravated.  If an offence is found to be an aggravated offence then an increased maximum penalty applies.

174H	Procedure for proving aggravated offence

The relevant circumstances of aggravation are required to be contained in the charge where the prosecution intends to prove an aggravated offence.  The relevant fault element in relation to circumstances of aggravation is intention or recklessness as defined in Part IIAA.  

Clause 13.	Repeal and substitution of Part VI, Division 4 heading.

This clause repeals the current heading of Part VI Division 4 and replaces it with a new heading – “Other offences endangering life or health”.

Clause 14.	Amendment of section 192 (sexual intercourse and gross indecency without consent).

This clause amends the current offence provided by section 192 -Sexual intercourse and gross indecency without consent.  A person will now be guilty of a crime if the person has sexual intercourse with or commits an act of gross indecency on another person without that persons consent and knowing about or being reckless as to the lack of consent.

The existing section 192 offence interacted with section 31 of the Code to produce the result that the prosecution must prove that the accused intended the act of having sexual intercourse without consent (Director of Public Prosecutions v WJI [2004 HCA 47).  That is the requisite fault element is an intention to have non consensual sexual intercourse.  If the defendant believed that the victim was consenting he would lack the intention to have non consensual sexual intercourse regardless of the unreasonableness as to that belief.  In addition, if an accused did not turn his mind at all to the question of consent then he could not be found to have intended sexual intercourse without consent.  

A defence of mistake will still be available in relation to the issue of consent however unlike the previous offence to which section 31 applied, such a mistake must be a reasonable one.  

Clause 15.	Amendment of section 316 (Indictment containing count of murder or manslaughter).

On an indictment charging manslaughter the offence of causing death by driving dangerously may be an alternative count.

Clause 16.	Amendment of section 318 (Charge of offence against the person where section 31 or intoxication is a defence).

Section 318 is amended to reflect that section 31 no longer applies to the offence of manslaughter.
Clause 17.	New Part XI.

This clause inserts a new Part to provide for transitional matters to make clear that the Code as in force immediately prior to the commencement of this Act applies in relation to offences committed before commencement.

Clause 18.	New Schedule 1.

This clause inserts a Schedule into the Code that provides for the offences to which the new criminal responsibility Part IIAA will apply.

Clause 19.	Further amendments.

A formal clause to provide that Schedule 1 has effect.  

Clause 20.	Amendment of Dangerous Goods Act.

This clause makes some consequential amendments in relation to the change from the term “grievous harm” to “serious harm”.

Clause 21.	Amendment of subordinate legislation.

This clause provides for a Schedule to the Bill to make some consequential amendments to subordinate legislation in relation to the change from the term “grievous harm” to “serious harm