THE PROTECTION OF PRINCIPLE UNDER A CRIMINAL CODE
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb02201.x |
| Date | 01 March 1962 |
| Published date | 01 March 1962 |
| Author | Colin Howard |
THE
PROTECTION
OF
PRINCIPLE UNDER
A
CRIMINAL
CODE
TEE
recent increase of interest in England in reform of the
criminal law has brought with
it
a
renewed interest in
criminal
codes.
Bfr.
Calvert has lately drawn attention to the impact of a
code
upon
the doctrine of precedent,' using as
an
iliustration case-
law under the Criminal Code of Tasmania. He comes to the
con-
clusion that
"
the sole justification of codification,
if
there be any
at all, is the intricacy of case-law."
It
is submitted that
this
is
not the sole justification. One end which can be better achieved
through
a
welldrafted code than by case-law is the preservation of
general principles.
It
is proposed in this article to illustrate the
advantage of
a
code in this respect by reference to case-law under
the Criminal Code of Queensland.
One of the most desirable prerequisites for criminal responsi-
bility in any civilised country is embodied by the common law
in
the maxim
actus
non
facit reum
nisi
men8
sit
rea.
It
is quite
inconsistent with the idea of
a
guilty mind that
a
man should be
liable without fault
a
either for his own act or,
a
fortiori,
for the act
of another. Yet by developing the modern doctrines of strict and
vicarious criminal responsibility, through statutory interpretation,
the judges of the common law jurisdictions have in many cases
arrived at just that result.
It
is submitted that this development
would
not
have taken place had the general principles of criminal
responsibility
in
these jurisdictions been protected by
a
well-drawn
code.
In
it
the requirement of fault is
stated
in
the clearest terms and applied
to
all offences under the
law of Queensland. The relevant sections ate
!28
and
24,
which
so
far as they affect strict responsibility
run
as follows:
Section
$33:
"
Subject to the express provisions of this
Code relating to negligent acts and omissions,
a
person is not
criminally responsible for
an
act or omission which occurs
independently of the exercise of his will, or for
an
event which
occurs by accident.''
Section
94:
"
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
he believed to exist.
Queensland has such a code.
1
(1969)
22
M.L.R.
621.
2
Ibid.,
688.
8
i.e.,
without
intention,
reckleseneei,
or
negligence
on
his
part.
190
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