The Australian Criminal Code: Time for Some Changes

AuthorIan Leader-Elliott
Published date01 June 2009
Date01 June 2009
Subject MatterArticle
Ian Leader-Elliott*
It has been an eventful year for the Criminal Code (Cth). Chapter 2 General Principles of
Criminal Responsibility ('Chapter 2') emerged unscathed, indeed reinforced, as a
consequence of judicial scrutiny by the High Court in R v Tang2 and it was the subject
of an extended exposition of the principles of statutory interpretation, incorporating
elements of his McPherson Lectures, by Spigelman CJ in R v JS.3 The High Court
decision is remarkable for the strict literalism of its interpretation of Part 2.2 The
elements of an offence. The judgment of Kirby J, though dissenting in the outcome,
provides a valuable addition to his earlier judgment in R v Barlow,4 on the principles of
interpretation of legislation codifying the criminal law. Danger signs are apparent,
however, in an equally literal reading of Chapter 2 by the Queensland Court of
Criminal Appeal in Crowther v Sala,5 which will be discussed later in this essay. As
appellate case law on Chapter 2 grows, stresses on its structure that were unforeseen
by its framers have begun to accumulate. If Chapter 2 is to continue to guide
Parliament and courts in the formulation and interpretation of criminal legislation it
will require continuing legislative maintenance.
My particular concern, in this essay, is the effect of mistake or ignorance on criminal
responsibility. I have two objectives in the discussion that follows. The first is to
propose a set of amendments to Chapter 2. These are set out in the appendix to the
* Reader in Law, Adelaide University School of Law.
1 This paper is an abridged version of Ian Leader-Elliott, 'Cracking the Code: Emerging
Stress Points in Chapter 2 Jurisprudence' (Paper presented at the Federal Criminal Justice
Forum, Canberra, 29 September 2008) <
JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=1202982>. I owe thanks to
many people for their advice and, in particular, to the anonymous referees for this journal
whose suggestions, for the most part, have been gratefully accepted.
2 (2008) 236 CLR 1.
3 (2007) 175 A Crim R 108; Chief Justice James Jacob Spigelman, 'Statutory Interpretation and
Human Rights'; 'The Application of Quasi Constitutional Laws'; 'Legitimate and Spurious
Interpretation' (Speeches delivered at the McPherson Lectures, Brisbane, 10 March 2009 –
13 March 2009) <
4 R v Barlow (1997) 188 CLR 1.
5 (2007) 170 A Crim R 389.
206 Federal Law Review Volume 37
paper. The Fates will determine whether the proposals will provide an impetus, at
least, for change. The second objective is more fundamental. Chapter 2 is a lineal
descendant of the US Model Penal Code, which reached its final form in 19626 and now
provides the template for criminal codes in the great majority of American states. That
code is the central point of departure for any serious consideration of criminal law
theory or doctrinal development in the United States.7 It is to be hoped that the
provisions of Chapter 2 will play an equally central role in Australian criminal law
theory and doctrine. Recognition of the practical significance that its provisions will
have is unavoidable. Though Chapter 2 has not been generally adopted in the states
and territories its conventions, rules and principles are law in every court that exercises
federal criminal jurisdiction. Federal criminal law is an increasingly important area of
practice and theory. For some years now, criminal jurisdiction in Australia has been
centripetal in its tendency. That has been particularly apparent in morals legislation,
where Commonwealth criminal law imposes limits on what can be written, said or
read and establishes boundaries to the activities of lawful commercial enterprises
catering for the markets in recreational sex and drugs. The terrorism provisions of the
Code have generated a complex body of case law precedent. In these areas of federal
criminal law, conviction can result in disgrace, moral opprobrium and punishment that
may exceed state or territorial sentences for murder. It is difficult to imagine the
existing state of conceptual apartheid between common law and Code principles of
criminal responsibility continuing indefinitely. The body of scholarship on the general
provisions of the Code is not large.8 In terms of my second objective, this exploration of
problems in the federal law of criminal responsibility is presented in the hope that it
may lend impetus to a re-orientation of Australian criminal law theory.
The argument of the paper is conservative in the sense that it proposes a 'rational
reconstruction' of a set of related provisions in Chapter 2 of the Code.9 It is an attempt
6 Model Penal Code — Proposed Official Draft (American Law Institute, May 4, 1962).
7 Paul Robinson and Markus Dubber, 'The American Model Penal Code: A Brief Overview'
(2007) 10 New Criminal Law Review 319, 340: 'For almost half a century, the Model Penal Code
has been the dominant force in American criminal code reform and a catalyst for American
criminal law scholarship.'
8 See Matthew Goode, 'Constructing Criminal Law Reform and the Model Criminal Code'
(2002) 26 Criminal Law Journal 152; Ian Leader-Elliott, 'Elements of Liability in the
Commonwealth Criminal Code' (2002) 26 Criminal Law Journal 28; Matthew Goode,
'Codification of the Criminal Law?' (2004) 28 Criminal Law Journal 226; Miriam Gani,
'Codifying the Criminal Law: Issues of Interpretation' in Suzanne Corcoran and Stephen
Bottomley (eds), Interpreting Statutes (2005) 197, 222; Ian Leader-Elliott, 'Benthamite
Reflections on Codification of the General Principles of Criminal Liability: Towards the
Panopticon' (2006) 9 Buffalo Criminal Law Review 391; Simon Bronitt and Miriam Gani,
'Criminal Codes in the 21st Century: The Paradox of the Liberal Promise' in Bernadette
McSherry, Alan Norrie and Simon Bronitt (eds), Regulating Deviance: The Redirection of
Criminalisation and the Future of Criminal Law (2009) 235. Among texts specifically dealing
with the Code, see Ian Leader-Elliott, The Commonwealth Criminal Code: A Guide for
Practitioners (2001); Stephen Odgers, Principles of Federal Criminal Law (2007). Among
general texts, Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (2nd ed,
2005), ch 3, 'Principles of Criminal Responsibility' is remarkable for the authors' decision to
adopt the conceptual vocabulary and structural framework of ch 2 of the Criminal Code, in
place of common law 'actus reus' and 'mens rea', as the basis for their text.
9 On 'rational reconstruction', see Antony Duff, Answering for Crime: Responsibility and
Liability in the Criminal Law (2007) 5–6.
2009 The Australian Criminal Code: Time for Some Changes 207
to present a consistent and morally coherent reformulation of those provisions in
Chapter 2 that are concerned with the effect of mistake or ignorance on criminal
responsibility. It is essentially an internal critique, written from within the framework
of Chapter 2. For that reason, the mistake of law defence that will be proposed is
limited by comparison with some more ambitious proposals for such a defence.10
Nothing in the argument that follows is intended to preclude a more ambitious
approach to the problem. It would also be possible to include within Chapter 2 one or
more modular defences that would apply only when their application was specified by
the legislature in an offence.11 For the moment, however, resolution of existing
obscurities and inconsistencies is a sufficiently exacting task and one that may provide
a useful foundation for more radical endeavours.
For brevity I will telescope mistake and ignorance into 'error' unless it is necessary
to distinguish them. Common law principles of criminal responsibility are relatively
well settled when errors of fact are in issue and Chapter 2 faithfully reproduced the
received common law doctrine of its time.12 Errors of fact concerning the physical
elements of an offence can defeat a prosecution allegation of intention, knowledge or
recklessness.13 It makes no difference that the error was unreasonable. If D failed to
realise that the ring her boyfriend gave her was stolen, she cannot be convicted of
handling stolen goods, however foolish her credulity. In offences that do not require
proof of fault, Australian common law has evolved an articulate, sophisticated
doctrine of strict liability which permits reliance on the defence of reasonable mistake
of fact as a bar to criminal responsibility. There is no defence of reasonable ignorance
and in consequence, the borderline between mistake and ignorance is contentious.
Both of these familiar common law doctrines have been reproduced in Chapter 2 as
central formal conventions of criminal responsibility in Code offences.14 They can be
largely ignored for the purposes of this paper. I will be concerned not with the effect of
errors of fact but with the effects on criminal responsibility of what may be described
as 'normative error' — mistake or ignorance about something that the defendant
should have known. The inherent fuzziness of the concept of normative error is not of
concern; there are just three varieties of the species for consideration:
(1) Errors about standards of conduct: It is not uncommon for federal criminal law to
make criminal liability depend on breach of a standard of conduct that would be
10 See, eg, proposals for a defence based on official inducement resulting in mistake of law: A
Ashworth, 'Testing Fidelity to Legal Values: Official Involvement and Criminal Justice' in
Stephen Shute and Andrew Simester (eds), Criminal Law Theory: Doctrines of the General Part
(2002) 299. Discussed: Jeremy Horder, Excusing Crime (2005) 270–6.
11 See, eg, the specialised defence in ch 9, pt 9.1 Serious drug offences, 313.2 Defence—reasonable
belief that conduct is justified or excused by or under a law. A model defence of this nature
might be included within ch 2, for use as required by the legislature, when framing
12 Criminal Code (Cth) ss 5.6 Offences that do not specify fault elements, 6.1 Strict liability, 6.2
Absolute liability, 9.2 Mistake of fact (strict liability). See: He Kaw Teh v The Queen (1985) 157
CLR 523. But see CTM v The Queen (2008) 236 CLR 440, which revises some aspects of the
common law doctrine of reasonable mistake. The implications of the latter decision for the
common law will not be considered in this essay.
13 Mistake or ignorance do not cease to be relevant to the determination of fault when
negligence is in issue. In that case, however, the enquiry will shift to consideration of what
D should have known or realised.
14 See ch 2, pt 2.2, divs 5 Fault elements and 6 Cases where fault elements are not required.

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