LWZ114 Lecture Notes - Lecture 2: No Liability, State Rail Authority, Statutory Interpretation
ELEMENTS OF CRIMINAL LIABILITY, PRINCIPLES OF PUNISHMENT, STRICT LIABILITY & ATTEMPT
Effect of CCA on offences without specified fault
❖ S5.6(1) CCA: If no fault element is specified for conduct, intention is the implied fault element for that physical
element.
❖ S5.6(2) CCA: If no fault element is specified for a circumstance or result, recklessness is the implied fault element for
that physical element.
Defence of Reasonable Mistake of Fact
❖ Proudman v Dayman: For strict liability offences, an honest and reasonable belief in facts which, if they existed,
could make the defendant’s act innocent is a defence.
❖ Elements of the defence:
➢ There must be a mistake of fact (Glanville: ie. the answer is perceptible by senses, or is a state of mind).
➢ There must be a mistake and not mere ignorance.
▪ State Rail Authority (NSW) v Hunter: A mistake can only be made if there is a positive belief formed on the
elements of the particular offence.
▪ Gherashe v Boase: A positive belief is more than mere ignorance; the accused must have turned his mind to
the relevant facts.
➢ The mistake must be made honestly on reasonable grounds. (Proudman v Dayman)
➢ The mistake of facts, if they existed, must render the accused’s act innocent.
▪ Bergin v Stack: The accused’s act is rendered innocent only if the accused no longer breaches any criminal
law.
❖ Legislation can expressly or impliedly displace the defence of reasonable mistake of fact with a statutory alternative.
Defence of Intervening Events
❖ S10.1 CCA: A person is not criminally responsible for an offence that has a physical element to which absolute or
strict liability applies if:
➢ That physical element is brought about by something over which the accused has no control, and
➢ The accused could not reasonably be expected to guard against the bringing about of that physical element.
ATTEMPT LIABILITY
Codification of Attempt Liability
❖ CCA s11.1(1): A person who attempts to commit an offence is guilty of the offence of attempting to commit that
offence, and is punishable as if the offence attempted had been committed.
❖ CLCA s270A:
➢ (1) Subject to subsection (2), a person who attempts to commit an offence is guilty of the offence of attempting to
commit that offence.
➢ (2) Where an attempt is constituted as an offence under other provisions of any Act, this section does not apply to
that offence, and does not operate to create a further or alternative offence to that former offence.
➢ (3) Penalties for an attempt to which this section applies:
▪ (a) attempted murder or attempted treason → life imprisonment.
▪ (b) principal offence has maximum penalty of life imprisonment → imprisonment not exceeding 12 years.
▪ (c) any other case → maximum of 2/3 of the principal offence’s maximum penalty.
❖ In SA, common law determines the elements of attempt.
Fault element in Attempts
❖ CCA s11.1(3): Intention and belief are fault elements with respect to each physical element of the offence attempted.
❖ Giorgianni v R: Fault for attempt is an intention to commit the physical element(s) of the offence.
➢ Giorgianni v R: Oblique intention or recklessness is not sufficient for attempts to commit offences.
➢ Britten v Alpogut: Intention is judged on the facts that D believed in.
❖ The fault element(s) of the completed offence is irrelevant. But – can argue it is relevant because of rape + s11.1(6)
CCA (limitation argument).
Physical element in Attempts: Was the accused’s conduct sufficiently proximate to the completed offence?
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Effect of cca on offences without specified fault. S5. 6(1) cca: if no fault element is specified for conduct, intention is the implied fault element for that physical element. S5. 6(2) cca: if no fault element is specified for a circumstance or result, recklessness is the implied fault element for that physical element. Proudman v dayman: for strict liability offences, an honest and reasonable belief in facts which, if they existed, could make the defendant"s act innocent is a defence. There must be a mistake of fact (glanville: ie. the answer is perceptible by senses, or is a state of mind). The mistake must be made honestly on reasonable grounds. (proudman v dayman) The mistake of facts, if they existed, must render the accused"s act innocent: bergin v stack: the accused"s act is rendered innocent only if the accused no longer breaches any criminal law. Legislation can expressly or impliedly displace the defence of reasonable mistake of fact with a statutory alternative.
