LECTURE 8
APPLY THE QUEENSLAND
CRIMINAL CODE
CHAPTER 5
CRIMINAL RESPONSIBILITY
1
CRIMINAL
RESPONSIBILITY
An important principle of the common law has
been that a person may not be convicted
unless the prohibited act or omission done
or made by him or her (actus reus) was
accompanied by a guilty mind (mens rea).
“The act does not constitute guilt unless the
mind is guilty.”
2
CRIMINAL
RESPONSIBILITY
Actus reus : A guilty act – voluntary actions or
omissions constituting a crime – the physical
element of an offence.
Mens rea: A guilty mind – the state of mind
required to constitute a particular crime – the
mental element of an offence
(handout)
3
s 36 Application of rules
(1) The provisions of this Chapter apply to all
persons charged with any criminal offence
against the statute law of Queensland.
(2) Except for sections 22(3) , 29 and 31 , this
Chapter does not apply to regulatory
offences.
“Sections 22 (Ignorance of the law—bona fide claim of right), 29
(Immature age) and 31 (Justification and excuse—
compulsion)”.
4
s 36 Application of rules
The provisions as to criminal
responsibility contained in Ch 5 apply
to all persons charged with any
criminal offence against Queensland
statute law.
However, with respect to regulatory
offences, only ss 22(3) , 29 and 31
apply.
5
CRIMINAL RESPONSIBILITY
“A person cannot be guilty of the defined
offence unless the Crown negatives
the operation of any excuse provided
by the Code which has been raised on
the evidence.”
6
s 22 Ignorance of the law — bona
fide claim of right
s 22 (1) Ignorance of the law does not afford
any excuse for an act or omission which
would otherwise constitute an offence,
unless knowledge of the law by the
offender is expressly declared to be an
element of the offence.
7
s 22 Ignorance of the law — bona
fide claim of right
s 22 (2) But a person is not criminally
responsible, as for an offence relating to
property, for an act done or omitted to be
done by the person with respect to any
property in the exercise of an honest
claim of right and without intention to
defraud.
8
s 22 Ignorance of the law — bona
fide claim of right
s 22 (3) A person is not criminally responsible for
an act or omission done or made in
contravention of a statutory instrument if, at the
time of doing or making it, the statutory
instrument was not known to the person and
had not been published or otherwise
reasonably made available or known to the
public or those persons likely to be affected by
it.
9
s 22 Ignorance of the law — bona
fide claim of right
s 22 (4) In this section —
“publish”
(a) in relation to a statutory instrument
that is subordinate legislation — means
notify in accordance with section 47
(Notification) of the Statutory
Instruments Act 1992 ; and
(b) in relation to a statutory instrument
that is not subordinate legislation —
means publish in the Gazette.
10
s 22 (1)
Ignorance of the law cannot be set up as
a defence, even by a foreigner in
whose country the act is not an
offence (R v Esop (1836) 7 C — C P
456 ; Re Barronet and Allain (1852) 1
E — B 1 ), but it seems that it may be a
ground for mitigation of punishment
(R v Crawshaw (1860) Bell CC 303 ).
11
s 22 (3) & (4)
Subsections (3) and (4) bring the law in Queensland
into line with the position in England where it has
been held that the common law maxim “ignorance
of the law is no excuse” does not apply where lack
of publicity makes the law unknowable.
The defence under subs (3) of this section was held to
have been made out in Hogan v Sawyer; Ex parte
Sawyer [1992] 1 Qd R 32; (1990) 51 A Crim R 46
where a rule forbidding prisoners to have money in
their possession had not been made known either
to the public or those prisoners likely to be
affected by it.
12
What about criminally responsible??
13
An Honest Claim of Right
(handout)
14
s 23 Intention — motive
(1) Subject to the express provisions of
this Code relating to negligent acts
and omissions, a person is not
criminally responsible for—
(a) an act or omission that occurs
independently of the exercise of the
person's will; or
(b) an event that occurs by accident.
15
s 23 Intention — motive
(1A) However, under subsection (1)(b) ,
the person is not excused from
criminal responsibility for death or
grievous bodily harm that results to a
victim because of a defect, weakness,
or abnormality even though the
offender does not intend or foresee or
cannot reasonably foresee the death
or grievous bodily harm.
16
s 23 Intention — motive
(2) Unless the intention to cause a
particular result is expressly declared
to be an element of the offence
constituted, in whole or part, by an act
or omission, the result intended to be
caused by an act or omission is
immaterial.
17
s 23 Intention — motive
(3) Unless otherwise expressly declared,
the motive by which a person is
induced to do or omit to do an act, or
to form an intention, is immaterial so
far as regards criminal responsibility.
18
Two Substantive Rules
A person will escape criminal
responsibility either if the act or
omission has occurred independently
of his or her will;
or
If the event has occurred by accident.
19
First limb – Act independent of their will
Timbu Kolian (1968) 119 CLR 47
In Kaporonovski (1973) 133 CLR 209 v R the High Court
held that the appellant was not relieved of criminal
responsibility by this section because, firstly, his
act , namely the forcing of the glass into B's face,
did not occur independently of the exercise of his
will and, secondly, the event , namely the grievous
bodily harm to B, did not occur by accident but
was the obvious, natural and probable
consequence of the act.
Recent Important Rulings
(handout)
20
First limb – Act independent of their will
EXCUSES??
21
First limb – Act independent of their will
Affliction
Reflex
Automatism
Concussion/Sleepwalking - Cooper v McKenna
(1960) Qd R 406
Epileptic fit
Mental disease/Insanity/Intoxication??
22
First limb – Act independent of their will
In R v Tralka [1965] Qd R 225; (1965) 60 QJPR
19 Mansfield CJ said at 228 : “I adhere to
what I said in R v Martyr [1962] Qd R 398;
57 QJPR 3 , and I hold that the test to be
applied is that an event occurs by accident
if it is caused by a happening which is not
foreseeable by the actor and also is not
reasonably foreseeable by any ordinary
person.”
23
Second limb – Event which occurs by
accident
This second limb relieves a person from
criminal responsibility for an event which
occurs by accident.
The distinction is between willed acts and an
intended result.
The event referred to in the provision is the
result which is brought about by the
accused’s conduct.
24
Second limb – Event which occurs by
accident
As to the meaning of the word “event” in the
expression “event which occurs by accident”,
see R v Van Den Bemd [1995] 1 Qd R 401 ,
where the Court of Appeal, following
Kaporonovski v R (1973) 133 CLR 209; 1 ALR
296 at CLR 231-2 and not following R v Martyr
[1962] Qd R 398; 57 QJPR 3 , held that the
word “event” means a consequence of an
accused person's willed act.
25
Second limb – Event which occurs by
accident
Reading
R v Van Den Bemd [1995] 1 Qd R 401
R v Martyr [1962] Qd R 398; 57 QJPR 3
26
Second limb – Event which occurs by
accident
In R v Van Den Bemd (1994) 179 CLR 137;
119 ALR 385; 68 ALJR 199 , the High
Court effectively reversed the
decision in R v Martyr [1962] Qd R
398; 57 QJPR 3 that accident does not
include an existing physical condition
or an inherent weakness or defect of a
person such as an eggshell skull or a
possible inherent weakness in the
brain.
27
s 24 Mistake of fact
(1) A person who does or omits to do an
act under an honest and reasonable,
but mistaken, belief in the existence of
any state of things is not criminally
responsible for the act or omission to
any greater extent than if the real
state of things had been such as the
person believed to exist.
28
s 24 Mistake of fact
(2) The operation of this rule may be
excluded by the express or implied
provisions of the law relating to the
subject. .
29
s 24 Mistake of fact
“Mistake of fact under the code is an
excuse as distinct from a defence
such as insanity and is a matter which
Crown must negative one the
evidential onus has been discharged
by the accused.”
30
s 24 Mistake of fact
Reading
Anderson v Nystrom (1941) St R Qd 56
Gould and Barnes (1960) Qd R 283
31
s 25 Extraordinary emergencies
Subject to the express provisions of this Code
relating to acts done upon compulsion or
provocation or in self-defence, a person is
not criminally responsible for an act or
omission done or made under such
circumstances of sudden or extraordinary
emergency that an ordinary person
possessing ordinary power of self-control
could not reasonably be expected to act
otherwise.
32
s 26 Presumption of sanity
Every person is presumed to be of sound
mind, and to have been of sound mind
at any time which comes in question,
until the contrary is proved.
33
s 26 Presumption of sanity
In R v Roche (1889) 3 QLJ 139 , it was held that the onus
to prove insanity lies on the accused.
In Dixon J's summing up to the jury in R v Porter (1933) 55
CLR 182; [1936] ALR 438 at CLR 183–4 , he said, “To
begin with, every person is presumed to be of
sufficient soundness of mind to be criminally
responsible for his actions until the contrary is made to
appear upon his trial. It is not for the Crown to prove
that any man is of sound mind; it is for the defence to
establish inferentially that he was not of sufficient
soundness of mind, at the time that he did the actions
charged, to be criminally responsible.”
34
s 26 Presumption of sanity
In R v Marinone [1915] St R Qd 14; [1915]
QWN 6 , Cooper CJ stated, “It is a well
known rule of law that every person is
assumed to be sane until the contrary is
proved.”
35
s 27 Insanity
(1) A person is not criminally responsible for
an act or omission if at the time of doing
the act or making the omission the
person is in such a state of mental
disease or natural mental infirmity as to
deprive the person of capacity to
understand what the person is doing, or
of capacity to control the person's
actions, or of capacity to know that the
person ought not to do the act or make
the omission.
36
s 27 Insanity
(2) A person whose mind, at the time of the
person's doing or omitting to do an act, is
affected by delusions on some specific
matter or matters, but who is not
otherwise entitled to the benefit of
subsection (1) , is criminally responsible
for the act or omission to the same
extent as if the real state of things had
been such as the person was induced by
the delusions to believe to exist.
37
s 27 Insanity
Subsection (1) provides the defence of
unsoundness of mind. The defence is
available to a person who, at the time
of doing an act or making an
omission, which would otherwise
have amounted to a criminal offence,
is (i) deprived of any of the three
nominated capacities (ii) as a result of
mental disease or natural mental
infirmity.
38
s 27 Insanity
Subsection (2) limits the criminal
responsibility of a person whose mind
is affected by delusions, and who is
not entitled to a defence under the
first paragraph, to the same extent as
if the real state of things had been
such as the person was induced by
the delusions to believe to exist.
39
s 27 Insanity
The section applies by virtue of s 28(1) to a
person whose mind is disordered by
intoxication or stupefaction caused
without intention on the person's part
40
s 27 Insanity
WHAT IS A DISEASE OF THE MIND?
(HANDOUT)
41
Natural mental infirmity
Natural mental infirmity
Mental retardation to such degree as to
deprive a person of one of the three
nominated capacities is sufficient to
found the defence.
42
s 28 Intoxication
(1) The provisions of section 27 apply to the
case of a person whose mind is
disordered by intoxication or stupefaction
caused without intention on his or her
part by drugs or intoxicating liquor or by
any other means.
43
s 28 Intoxication
(2) They do not apply to the case of a
person who has, to any extent
intentionally caused himself or herself to
become intoxicated or stupefied, whether
in order to afford excuse for the
commission of an offence or not and
whether his or her mind is disordered by
the intoxication alone or in combination
44
with some other agent.
s 28 Intoxication
(3) When an intention to cause a specific
result is an element of an offence,
intoxication, whether complete or partial,
and whether intentional or unintentional,
may be regarded for the purpose of
ascertaining whether such an intention in
fact existed.
45
s 28 Intoxication
Subsection (1) applies the provisions of the
insanity defence ( s 27 ) to a person
whose mind is disordered by involuntary
intoxication or stupefaction. To found the
defence it would need to be established
that the disordered state of mind
deprived the person of at least one of the
three capacities specified in s 27 .
46
s 28 Intoxication
Subsection (2) stipulates that the s 27
defence is not available where the
person has intentionally caused the
intoxication or stupefaction.
47
s 28 Intoxication
Subsection (3) provides that intoxication,
whether complete or partial, and whether
intentional or unintentional, should be
considered in determining whether an
intention in fact existed in relation to
offences where an element is an
intention to cause a specific result.
48
Intention
‘… should be considered in determining
whether an intention in fact existed in
relation to offences where an element is
an intention to cause a specific result.’
49
Relevance of intoxication to
penalty
‘… whether wholly or partly, excuses the
taking of alcohol or other drugs by an
offender, ordinarily the offender's
intoxication will not mitigate penalty.’
50
Relevance of intoxication to
penalty
Thomas JA considered that the intoxication
of the respondent who had been
convicted of attempted murder:
‘… is not in itself an excuse but is part of the overall picture
in that it was in part a product of her emotional overreaction, and of course it could only have added to her
already somewhat irrational behaviour. But in the end
she must accept responsibility for her own actions
including the contribution of her voluntary intoxication.’
51
s 29 Immature age
(1) A person under the age of 10 years is
not criminally responsible for any act or
omission.
52
s 29 Immature age
Subsection (1) establishes an irrebuttable
presumption of law that a person under
the age of 10 years is not criminally
responsible.
Irrebuttable/irrefutable/unable to be challenged
53
s 29 Immature age
Subsection (2) establishes a rebuttable
presumption against criminal
responsibility for persons aged 10 to 15
years. The onus is on the prosecution to
rebut the presumption by proving that the
person had the capacity to know that the
person ought not to do the act or make
the omission.
54
s 30 Judicial officers
Except as expressly provided by this Code,
a judicial officer is not criminally
responsible for anything done or omitted
to be done by the judicial officer in the
exercise of the officer's judicial functions,
although the act done is in excess of the
officer's judicial authority, or although the
officer is bound to do the act omitted to
55
be done.
s 30 Judicial officers
See s 119: “judicial proceeding” ; ss 120–
121 : judicial and official corruption; s
136 : Justices acting oppressively or
when interested.
56
s 31 Justification and excuse —
compulsion
TO BE READ FROM CRIMINAL CODE
57
s 34 Offences by partners and
members of companies with
respect to partnership or
corporate property
END
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