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Commonwealth Criminal Code 10 years on

Commonwealth Criminal Code 10 years on . Jaala Hinchcliffe CDPP. Introduction .

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Commonwealth Criminal Code 10 years on

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  1. Commonwealth Criminal Code10 years on Jaala Hinchcliffe CDPP

  2. Introduction

  3. “It is hoped that the 1994 Bill will not only be the beginning of a new era for Commonwealth criminal law, by ensuring that those who are accused of Federal offences are subject to the same principles in all parts of Australia, but for the criminal law of Australia generally. It is the beginning of one of the most ambitious legal simplification programs ever attempted in Australia” (EM to Criminal Code Bill at page 1).

  4. “the proposition advanced by the responsible Minister, when the Code was introduced into the House of Representatives in 1995, [was] that it would reflect Benthamite ideals of certainty in the criminal law. One does not often encounter a more striking illustration of the vanity of human wishes. That is because very many parts of the Code, including the parts debated in this appeal, are inconsistent with those ideals. They represent a significant regression from the condition of Commonwealth, State and Territory criminal law as it was before 1995. That criminal litigation under the Code is conducted with any semblance of ordered justice is a tribute to the Australian legal profession” (Heydon J, CDPP v Poniatowska)

  5. Chapter 2 General Principles of Criminal Responsibility

  6. Chapter 2 • Elements • Proof of criminal responsibility • Extensions of criminal responsibility • General defences • Corporate criminal responsibility • Geographical jursidiction

  7. Elements of an offence

  8. Elements of an offence • Elements of an offence • physical elements • fault elements • There is a corresponding fault element for each physical element of an offence, unless offence/element is one of strict or absolute liability

  9. Elements of an offence • Physical elements (actus reus) • conduct • an act, omission to perform an act, or a state of affairs • circumstance in which conduct or a result of conduct occurs • result of conduct

  10. Fault elements (mens rea) • intention • knowledge • recklessness • negligence • another fault element specified by particular legislation (eg dishonesty, belief, ulterior intent)

  11. ‘Default’ fault elements • Provision is made for particular fault elements to automatically apply: • Conduct – intention • Result or circumstance - recklessness

  12. Analysing an offence • Identify each physical element of the offence • start by identifying the conduct element(s) • there must always be at least one conduct element • Then ascertain the corresponding faultelements • is a fault element specified? • or is a default fault element applicable?

  13. s. 307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants (1) A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border controlled drug or border controlled plant; and (c) the quantity imported or exported is a commercial quantity. Penalty: Imprisonment for life or 7,500 penalty units, or both. • The fault element for paragraph (1)(b) is recklessness. • Absolute liability applies to paragraph (1)(c).

  14. Elements (a) D imports/exports a substance (conduct). Fault: intention (s 5.6(1) and s 5.2). (b) The substance is a border controlled drug/plant (circumstance). Fault: recklessness (s 307.1(2) and s 5.4). (c) The quantity imported/exported is a commercial quantity (circumstance). Fault: absolute liability (s 307.1(3) and s 6.2).

  15. 474.26(1) – using a carriage service to procure persons under 16 years of age (1) A person (the sender) commits an offence if: (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and (b) the sender does this with the intention of procuring the recipient to engage in, or submit to, sexual activity with the sender; and (c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and (d) the sender is at least 18 years of age. Penalty: Imprisonment for 15 years.

  16. Elements (a) D uses a carriage service to transmit a communication to another person (the recipient) (conduct) Fault: with the intention of procuring the recipient to engage in or submit to sexual activity with D (474.26(1)(b)) (b) (i) The recipient is under 16 years of age (circumstance) Fault: absolute liability (s474.28(1)) OR (ii) The recipient is over 16 years of age (circumstance) Fault: D believes the recipient is under 16 years of age D is at least 18 years of age (circumstance) Fault: recklessness (s5.6 of the Code)

  17. Some experiences so far…

  18. Joint enterprise • R v Pui Man Liu & Sin Chun Wong (NSW DC 10 06 2003) • 2 offenders with 2.8 kg of heroin combined strapped to them • Charged on the basis of joint enterprise • Justice Kelman’s conclusion that joint enterprise had been abolished with the implementation of the Code

  19. Joint Enterprise Section 11.2A added in 2010 (1)If: (a) a person and at least one other party enter into an agreement to commit an offence; and (b)either: (i) an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or (ii) an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3)); the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly. Offence committed in accordance with the agreement (2) An offence is committed in accordance with the agreement if: • the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and • to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and • to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.

  20. Conspiracy R v LK (2010) 241 CLR 177 • What are the elements of conspiracy under the Code? • What does the prosecution need to prove in relation to a conspiracy to commit an offence which contains recklessness?

  21. Conspiracy - elements (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. Note: Penalty units are defined in section 4AA of the Crimes Act 1914. (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.

  22. Conspiracy - elements (1) D conspires with another person to commit a non-trivial offence (conduct) Fault: intention

  23. Conspiracy - elements (1) D enters into an agreement with D2 to commit an offence (conduct) Fault: D intends that an offence be committed pursuant to the agreement (paragraph 11.5(2)(b)) (2)D2 intends that an offence be committed pursuant to the agreement (circumstance) Fault: intention i.e. that D believes that circumstance exists or will exist(subsection 11.5(1)) (3) D committed an overt act pursuant to the agreement (conduct) Fault: intention (s5.6(2) of the Code) OR D2 committed an overt act pursuant to the agreement (circumstance) Fault: intention i.e. that D believes that circumstance exists or will exist (subsection 11.5(1))

  24. Conspiracy - recklessness • The High Court decided that in proving that the person intentionally entered into the agreement, the prosecution must prove that the person had knowledge of, or belief in, the existence of the facts that make the conduct that is the subject of the agreement an offence  (paragraph 117 and paragraph 72 French CJ’s judgment).  • It is not sufficient for the prosecution to prove that a conspirator was reckless as to a circumstance of the substantive offence (in this case that they were reckless that the money was proceeds of crime) (paragraphs 77 and 122).

  25. Knowingly concerned • MCCOC consideration • Campbell v R (2008) 188 A CRIM R 1 • Amended definition of “import” – Feb 2010 • ACT provision

  26. Conclusion

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