Download Criminal Law: Sources, Principles, and Extensions of Criminal Responsibility and more Study notes Criminal Law in PDF only on Docsity!
7
CRIMINAL RESPONSIBILITY 1
INTRODUCTION
The criminal law identifies certain wrongful behaviour that society regards as deserving of punishment. People breaching the criminal law are labelled as criminals and are penalised by the state. Given these severe consequences, the criminal law is normally reserved for limited kinds of wrongdoing. This chapter will analyse the major considerations affecting the decision whether certain wrongful behaviour should be regarded as a crime.^1 One of these is the principle of individual autonomy whereby people may conduct their lives as they choose with as few restrictions as possible. This principle promotes minimal criminalisation. There is also the related notion of ‘individualism’, which regards people as capable of choosing their own courses of action. According to this notion, people who lack the capacity to choose should not be made criminally responsible for their actions. A competing consideration is the community welfare principle according to which the collective interests of society must be protected. This principle views individuals as belonging to a wider community that can only be sustained if certain duties are imposed on its members. The criminal law is relied on as one mechanism to ensure that these duties are adequately discharged. These duties serve to protect the rights of other members of the community and, more broadly, the values and interests of the community that are seen as essential to its successful functioning. Hence, the community welfare principle asserts that individual autonomy may have to be overridden by the collective interests of the community. The criminal law is very much the product of the interplay between these two competing principles of individual autonomy and community welfare. The first part of this chapter spells out the aims and functions of the criminal law. In the second part, certain specific policies and principles influencing the perimeters of the criminal law are explored. Also included is a brief consideration of the sources of the criminal law and how the law is or should be laid down. The third part covers the essential ingredients of a crime, namely, harm-inducing conduct, a mental or fault element, and the absence of any lawful justification or excuse, or a legally recognised mental incapacity (that is, defences). The fourth part considers certain concepts that the criminal law has devised to extend the scope of criminal responsibility. The discussion will often engage with the struggle between individual autonomy and community welfare. It will be observed how justice or fairness is achieved for both individuals and the community to which they belong through a carefully reasoned balancing of these competing considerations. This need to balance individual autonomy with community welfare is so vital that it appears as an Article in the Universal Declaration of Human Rights :
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
1 Much of this chapter is inspired by A. Ashworth and J. Horder, Principles of Criminal Law , 7th edn, Oxford University Press, Oxford, 2013.
8 AUSTRALIAN CRIMINAL JUSTICE
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.^2
In the final part, we discuss two recent developments pertaining to criminal responsibility that go beyond the discussion covered by that stage. The first concerns efforts by lawmakers to render corporations criminally liable by modifying the conventional principles of criminal responsibility that are geared towards natural persons. The second is the creation of the International Criminal Court to try certain crimes, and the enactment, at the international level, of a set of general principles of criminal responsibility.
AIMS AND FUNCTIONS OF THE CRIMINAL LAW
The overall aim of the criminal law is the prevention of certain kinds of behaviour that society regards as either harmful or potentially harmful. The criminal law is applied by society as a defence against harms that injure the interests and values that are considered fundamental to its proper functioning. These interests and values cover a wide area. They include the bodily integrity of people, the security of property, protection of the environment and moral values. It may be easy enough to state this general justifying aim of the criminal law. But the problem comes when we have to locate the key to deciding whether an interest or value is so fundamental as to warrant the protection of the criminal law. This problem is compounded by several factors. First, there are other fundamental interests or values, also crucial to the proper functioning of society, that are incompatible with the threat of criminal sanction. Second, there are methods of social control or prevention besides the criminal law. Third, the primary aim is blurred by its increased use of the criminal law to regulate conduct for reasons of economy and expediency. There is a growing sphere of legislative activity that uses the criminal sanction to endorse policies that stand apart from harm prevention. We shall elaborate upon these factors in the course of our discussion.
MORAL WRONGNESS APPROACH
One suggested key to deciding whether behaviour should be criminalised is ‘moral wrongness’. Lord Devlin, an English judge, was a keen proponent of this stance.^3 He regarded morality as underpinning the social fabric of society, and immoral behaviour as eroding that fabric and consequently destabilising society. He therefore had no hesitation in advocating the use of the criminal law to deter ‘immoral’ behaviour. Lord Devlin applied the strength of feelings of ordinary people to define moral wrongness. If conduct arouses feelings of indignation or revulsion in these people, it is a good indication that the conduct strikes at the common morality and is a proper object of the criminal law. But herein lies a major weakness of Lord Devlin’s approach. His definition of moral wrongness is far too imprecise as it leaves the matter to be decided by mere feelings of disgust. Such feelings may well stem from irrational prejudices rather than reasoned moral indignation.
2 Article 29. The Declaration was adopted by the United Nations General Assembly in 1948. 3 See P. Devlin, The Enforcement of Morals , Oxford University Press, London, 1965.
10 AUSTRALIAN CRIMINAL JUSTICE
account the financial cost to the community of permitting activities such as not wearing seatbelts and helmets to continue unrestricted. It is worthwhile observing here the material difference between the ‘harms to others’ approach and the community welfare principle. We have already noted that the former emphasises individual autonomy and confines the role of the criminal law to proscribing activities that impinge on the freedoms of other individuals within the same community. In contrast, the community welfare principle places a premium on community interests and would be prepared to override individual autonomy for the greater good of the community. Thus, the principle may impose criminal liability on drug users or on people driving without securing their seatbelts out of concern for the welfare of the community. This would be done at the cost of infringing upon their individual freedom to choose their own course of action. It should be added that the community welfare principle is not confined to explaining those activities that cannot be adequately explained by the ‘harms to others’ approach. The community welfare principle can and does serve as a key to deciding which behaviour should or should not be criminalised in respect of a full range of ‘antisocial’ behaviour. To summarise our discussion thus far, the overall aim of the criminal law may be stated as the prevention of harm. But the criminal law would be drastically over-used if it were to proscribe each and every activity that causes harm or has the potential to do so. The problem for lawmakers is to determine which kinds of harmful activity should fall within the ambit of the criminal law and which should fall outside it. Two competing influences have been located that have a significant bearing on this determination—the principles of individual autonomy and community welfare. Neither can claim to have taken predominance over the other so that, in achieving the overall aim of preventing harm, the criminal law has been moulded in ways that account for both of these principles.
In your view, what is the key to deciding whether an interest or value is so fundamental as to warrant the protection of the criminal law?
MAJOR FUNCTIONS
We now turn to examine certain major functions of the criminal law. These involve the processes, operations or activities that the criminal law normally discharges. One of these functions is to distinguish civil wrongs from criminal wrongs. A person who is harmed by a tort^7 or by a breach of contract may sue for damages or obtain some other remedy in a civil court. He or she has been ‘wronged’ but the harmful conduct may not be regarded as sufficiently serious to constitute a crime. Not all social mischiefs will have aggrieved victims wanting remedies from a civil court. There are some mischiefs that harm the public rather than individual victims. In these cases, the criminal law may be justified in stepping in to ensure that such harmful activities are controlled, even though the mischief may constitute only minor incursions on basic social functioning. These have been described as ‘victimless’ crimes and include activities such as drug use, prostitution, distribution of obscene literature, and some forms of gambling. Whether the criminal law is the best measure to control this behaviour is open to debate. Distinguishing civil from criminal cases is only a preliminary function of the criminal law. Its primary task is to stipulate the degree of seriousness of criminal conduct. We need to determine not simply
7 Torts are civil wrongs that attract compensation by way of damages. Some common torts are negligence, trespass, nuisance and defamation.
CHAPTER 1 CRIMINAL RESPONSIBILITY 11
whether a social mischief is sufficiently serious to be made a crime but, if a crime, how serious it is when compared with other crimes. Knowing the degree of seriousness of criminal conduct is vital to selecting the proper label of offence and the appropriate penalty. It has also wider practical consequences for matters such as the legality of arrest without a warrant and of searches, the decision to caution or to prosecute, to grant bail, whether to have the case tried before a magistrate or a judge, to try a case with or without a jury, the sentencing options available, and the decision whether to release on parole. What considerations are material in assessing the relative seriousness of criminal conduct? One factor is the impact of the conduct on victims of the particular kind of crime. Not only the physical injuries, but also the psychological trauma of victims of violent crimes may be taken into account. The monetary value of property crimes also affects the degree of offence seriousness. Another factor is the extent of culpability of the offender. This may be gauged according to the offender’s mental state in relation to the offence. Thus, intentional wrongdoing would normally be assessed as more culpable than recklessness, which in turn would be more blameworthy than negligent behaviour.^8 A third factor is the degree of likelihood of harm. A case involving conduct that was virtually certain to cause harm would obviously be more serious than one where the risk of harm was remote. Similarly, a case where the harm actually occurred would normally be regarded as more serious than one where the harm did not materialise. This very brief consideration of how offence seriousness is assessed should be sufficient to indicate its complexity. Numerous value judgments are involved as well as a multiplicity of variables relevant to the assessment exercise. Difficult as the task is in ranking offences, justice to both offenders and their victims requires every effort to be made. To reduce arbitrariness and inconsistency in ranking offence seriousness, it may be necessary to adopt a framework upon which lawmakers can pin their deliberations.^9 So far, we have only discussed crimes that harm the fundamental values and interests necessary for proper social functioning. However, there is an ever-growing proliferation of offences that do not fit this description. These are minor offences that use the threat of punishment to achieve the smooth running of day-to-day social intercourse and activities such as road traffic flow, business regulation, urban planning, licensing procedures and so forth. Accordingly, they have been described as ‘regulatory offences’. These offences are often made strictly liable by the legislature so that mere proof of the commission of the proscribed conduct is suffi cient to establish the charge against the accused without additionally having to prove that the accused intended, knew of or was reckless of the wrongdoing.^10 But is the use of the criminal law justified in these areas? While the smooth running of these activities may be necessary to realise social and individual goals, it is certainly not as central to social functioning as the protection of physical integrity or the security of property. These regulatory offences seem to have emerged on the basis of economy and expediency. The criminal law and criminal justice system lend themselves to providing cheap, effective and politically convenient means of controlling such comparatively minor infringements. Whether the criminal law should function in these spheres is highly debatable. Such an extension of its operation does not sit well with the overall aim of the criminal law of protecting values and interests considered fundamental to proper social
8 The concepts of intention, recklessness, knowledge and negligence are dealt with later in this chapter. 9 For some examples of suggested frameworks, see J. Feinberg, Harm to Others , Oxford University Press, New York, 1984; A. Von Hirsch and N. Jareborg, ‘Gauging Criminal Harm: A Living Standard Analysis’, Oxford Journal of Legal Studies , 11, 1991, p. 1. 10 See further below, p. 25.
CHAPTER 1 CRIMINAL RESPONSIBILITY 13
Territorial Governments are prepared to replace their existing criminal laws with the one proposed by the Model Criminal Code Officers Committee. 14 Hopefully, the lead taken by the legislatures of the Commonwealth and the Australian Capital Territory in adopting most of the model criminal code will eventually persuade the other governments to follow suit.^15
PRESCRIPTION OF CRIMINAL LAW
A national criminal code would bring consistency to the criminal law of Australia. This development would have another welcome effect on those jurisdictions whose criminal law is presently founded on a common law base. It would mean that the criminal law would be prescribed and developed primarily by the legislature rather than by judges. This is more in accord with constitutional precepts—since the criminal law is society’s most powerful measure in regulating social mischiefs, it should be the legislature who decides what that law should be as opposed to a small number of unelected judges. The legislature, comprising elected representatives of the community, is best equipped to express the views of society on such questions as: Is a particular interest or value fundamental to proper social functioning? If so, are there other competing interests or values that should prevail? Is the criminal law the best medium to protect these interests and values? Another reason for preferring the criminal law to be cast in statutory form is the greater certainty this achieves when compared with the common law. With the law laid down in statute, members of society are given fair warning of their social responsibilities under the criminal law and can readily find these out. This adheres to the principle of individual autonomy with its notion of sufficient choice. Choices are real if the law clearly spells out in advance the consequences of taking certain proscribed actions. In contrast, the history of the common law has been to create new offences whenever judges regarded conduct, not previously the object of the criminal law, to be deserving of punishment.^16 The common law has also tended to be much vaguer in its pronouncements of the criminal law. This might have been consciously done by the judges to provide room for further creativity should some future occasion so require. The stance of the common law can be supported on the ground of social defence. The judicial power to create new offences and the vagueness of existing criminal law are needed to deal with new variations of social mischief without having to await the lumbering response of legislature. The main criticism against this approach is that it denies individual autonomy (and consequently fairness to individuals) by retroactively penalising previously non-criminal conduct. Indeed, such retroactivity breaches an Article in the Universal Declaration of Human Rights , which says that:
No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. 17
14 Over the years, the Model Criminal Code Officers Committee has produced several chapters of the Code, commencing with ‘General Principles of Criminal Responsibility’ in 1992. 15 See M. Goode, ‘Codification of the Criminal Law’, Criminal Law Journal , 26, 2004, p. 226. For a study indicating that the Criminal Code provisions are working well in practice, see M. Goode, ‘An Evaluation of Judicial Interpretations of the Australian Model Criminal Code’ in W.C. Chan, B. Wright and S. Yeo (eds), Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform , Ashgate, Farnham, 2011, p. 313. 16 There has been no new common law offence created over the past few decades; the modern tendency of the courts is to express the need for a new offence and leave its creation to Parliament. 17 Article 11(2).
14 AUSTRALIAN CRIMINAL JUSTICE
As for the point about the lumbering response of legislature, the pace of legislative enactment has been noticeably much quicker in recent years.^18 With the move towards greater statutory prescription of the criminal law, what role is left for the courts? This brings us into the realm of statutory interpretation. Judges, with their legal training and expertise, are still the best people to attend to this task. Where the statutory formulation is clear, the court cannot deviate from it. Where the formulation is open to debate, which is often the case, the judges can select from a range of interpretative principles. The judges exercise considerable discretion in both the selection and appreciation of these principles. The statutory prescription of the criminal law makes it readily accessible to the public. It also provides the impetus to pronouncing the law in simple language so as to be easily comprehensible to ordinary people. Furthermore, the process of encasing the criminal law within the structure and terms of a statute in turn encourages the exercise of ranking offences according to their seriousness.^19 As we have noted earlier, justice requires that a determined effort should be made to perform this task.
CATEGORIES OF CRIME
It is not possible here to mention all the multifarious forms of harms that the criminal law proscribes. The main categories of crimes (not necessarily in order of offence seriousness) may be summarised as follows:
- Crimes involving death. Homicide, which is causing death to a human being, is arguably the most serious harm. The crime of murder with its special label and the severity of punishment it attracts places this offence above all other offences involving homicide. A little lower down the scale is attempted murder. This is followed by manslaughter and offences such as infanticide and causing death by reckless driving.
- Crimes involving bodily injury. Besides offences causing death, there is a whole range of other offences designed to protect bodily integrity. Psychic assault (threats to apply unlawful force) sits at the least serious end of the range. At the other end are physical assaults resulting in very serious bodily injury that brings the victim close to death. In between are numerous varieties of assault, depending on such factors as the degree of force applied, the injury suffered, and the mental state of the offender. Sometimes, the status of the victim is also significant—for example, the relatively serious offence of assaulting a police officer while in the execution of her or his duty. Sexual offences also vary widely and range from minor sexual contact to sexual assault involving serious physical violence.
- Road traffic offences. Many of these offences are minor in nature and perform a regulatory function promoting the smooth flow of traffic. However, included in this category are much more serious offences that pose a danger to the lives and safety of other road users. For instance, there is reckless driving and its less culpable counterparts, negligent driving and drunk driving. Besides seeking to prevent bodily injury, road traffic offences legislation seeks to provide protection against damage to property.
18 For example, the proliferation of sexual assault legislation in New South Wales, South Australia and Victoria, with many of the new offences enacted soon after a few months of public debate. The rapid enactment of antiterrorism offences is another example, although this can be explained by the imminent global threat posed by terrorists: see further Chapter 10, pp. 359–60. 19 Offence seriousness is normally measured by the type of penalty prescribed for the offence. See Chapter 7.
16 AUSTRALIAN CRIMINAL JUSTICE
aggravating features. These are drug trafficking, importation, cultivation and manufacture. These offences are placed high on the scale of offence seriousness because they are designed to eradicate the supply of drugs. The whole issue of drug offences, particularly in relation to so-called ‘soft drugs’, is a matter of continuing public debate.
INFLUENCES ON THE PERIMETERS OF CRIMINAL RESPONSIBILITY
In this section we shall consider certain policies and principles contained in the criminal law that infl uence the ambit of criminal responsibility. Some of these will have the effect of narrowing the limits of the criminal law while others will have the opposite effect. The policy of minimal criminalisation advocates that the criminal law should be used sparingly due to its coercive and liberty-depriving consequences. Individual autonomy is placed at a premium with the individual given as much freedom of choice as possible. The criminal law should therefore be confined only to censuring those activities that definitely harm the values and interests fundamental to proper social functioning. Opposed to minimal criminalisation is the policy of social defence. This sees individuals as members of a wider community whose social arrangements may need to be protected by the criminal law. The criminal law is permitted to infringe upon individual autonomy should this be required to protect the community from threats to peace and order. We have previously noted this same tension between the two policies when discussing the principles of individual autonomy and community welfare. The principle of liability for acts but not omissions also narrows the ambit of the criminal law. According to this principle, criminal responsibility should be confined to positive conduct. Conversely, the criminal law should not penalise people for failing to take action to protect the bodily integrity or property interests of others. It can be seen that individual autonomy is once again maintained since the principle asserts that people should be free to decide whether or not to act in these circumstances. Proponents of this principle would be prepared to recognise certain exceptions. Positive duties to act may justifiably be imposed by the criminal law where, for example, a parent–child relationship exists, or where the accused had voluntarily assumed the care of the victim. 23 However, these exceptions are still consistent with individual autonomy since the positive duty is imposed only on people who have voluntarily chosen through their previous actions to protect the victim. Accordingly, a failure by these people to protect their charges may deserve punishment. In contrast, the principle of social responsibility asserts that the act–omission distinction should give way to the imposition of duties that help to promote a value or protect an interest beneficial to society. In partial deference to individual autonomy, there is the proviso that the discharge of the duty is easy and involves no risk to the actor. 24 The principles of justification and excuse also operate to narrow the ambit of criminal responsibility.^25 Under the principle of justification, society approves of the accused’s conduct and
23 For a discussion of the various categories of duties under common law, see R v Taktak (1988) 34 A Crim R 334; Burns v The Queen (2012) 246 CLR 334. The codes expressly impose duties to act: see, for example, ss. 285–90 of the Queensland code; ss. 262–7 of the Western Australian code; and ss. 144–52 of the Tasmanian code. 24 Thus under French criminal law, there is a ‘duty of easy rescue’: see A. Ashworth and E. Steiner, ‘Criminal Omissions and Public Duties: The French Experience’, Legal Studies , 10(2), 1990, p. 153. No Australian jurisdiction recognises such a duty. The closest to doing so is s. 155 of the Criminal Code Act 1983 (NT), which criminalises ‘any person who, being able to provide rescue … to a person urgently in need of it and whose life may be endangered … callously fails to do so’. 25 See S. Yeo, Compulsion in the Criminal Law , Law Book Co., North Ryde, 1990, Ch. 1.
CHAPTER 1 CRIMINAL RESPONSIBILITY 17
seeks to encourage its performance. The accused should therefore be acquitted of the crime charged. Examples of justification include acting in self-defence or applying force to apprehend a suspected offender. Under the principle of excuse, society regards the accused’s conduct as wrong and to be discouraged. However, the accused is rendered not blameworthy (and therefore acquitted of the offence) due to certain extenuating circumstances operating at the time the wrongful conduct was performed. Examples include committing an offence in order to avoid serious injury or some natural danger. While society maintains that the accused’s conduct was wrong, it acknowledges the pressures under which the accused operated. As the accused’s choices of action were constrained, there was an absence of the individual autonomy required to render her or him criminally responsible for the resulting harm. The principles of justification and excuse are subject to the limitations that the accused’s conduct was reasonable and necessary. Reasonableness may be measured by the concept of proportionate response—the accused’s conduct is reasonable provided the harm it inflicted on the victim was no greater than the harm that that conduct prevented. Necessity looks at whether there were other less harmful ways of avoiding the threat or danger to the accused. The concepts of reasonableness and necessity are deliberately kept vague to provide the flexibility needed for judges to respond properly to a whole variety of situations. This brief discussion of policies and principles influencing the perimeters of criminal responsibility highlights two important matters. The first is that there are no simple explanations as to why the criminal law has taken one direction and not another over a particular subject. In each case, the explanation will stem from one or more policies or principles that are selected, and this selection process is value laden. As Alan Norrie has observed:
There are principles of rationality and justice in operation within the law but they must be seen as elements in tension with other contradictory elements. In examining criminal law, we must recognise the limits of rationality and justice: limits which are a central and necessary part of the enterprise and not the result of chance or contingency. Criminal law is relatively unpredictable in its development and this stems from the fundamental ambiguity of its central organising principles. 26 Second, underlying the whole discussion is the concern that the criminal law should not be significantly out of touch with society’s expectations. These expectations range from individual freedom to conduct one’s own affairs with minimal restrictions, to ideas about shared responsibilities as a member of a community. Difficult as the task may be, the criminal law should be under continuous scrutiny to ensure that it maintains the respect of society. This is not only an important aspect of democracy, it also has a practical foundation since the law relies on public consensus for its effective functioning.^27
Who is responsible for scrutinising the criminal law to ensure that it maintains the respect of society? What difficulties might be encountered in discharging this responsibility, and are they surmountable?
26 A. Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law , 2nd edn, Butterworths, London, 2001, p. 13. 27 P. Robinson and J. Darley, Justice, Liability and Blame: Community Views and the Criminal Law , Westview Press, Boulder, CO, 1995.
CHAPTER 1 CRIMINAL RESPONSIBILITY 19
the requirement of voluntariness? It can be safely asserted that there is no real evidence for the truth of determinism in the sense that all our behaviour is fully determined. Nevertheless, we should be prepared to accept that there may be instances where a person’s behaviour was strongly determined so that he or she should not be held criminally responsible for the proscribed conduct. This proposition has been described as ‘compatibilism’.^33 It assumes the notion that individuals are sufficiently free to choose and control their actions so as to be blamed for them, and yet accepts that there may be occasions when circumstances so affect an individual’s choice or control as to warrant the negation of blame. Once conduct has been determined to be voluntary, the enquiry shifts to whether an accused had caused the resulting harm. Take the case of D who stabs V in the arm, leading V to seek medical attention. Unfortunately, the medical treatment is grossly inadequate. Should V die, can D still be said to have caused his death? The test of ‘substantial cause’ has been devised to resolve this problem.^34 Otherwise, it would be possible to impose liability on conduct of the accused that had some causal effect, however remote or indirect it might be. For example, D invites V to dinner. On the way to D’s house, V is killed by a bus. It would be unduly harsh to regard D as having caused V’s death, even though it may be true that, but for D’s invitation, V would not have used the road that night. There may be cases involving intervening causes, that is, where another human agent’s conduct has come in between the accused’s conduct and the eventual harm. Take the case of A who stabs V. As V lies dying, B shoots and kills V instantaneously. The law will conclude that B and not A had caused V’s death, even though A might be charged with attempted murder. But what if B’s conduct lacked autonomy due, for instance, to A having compelled him by death threats to shoot V? In such a case, A may be regarded as having caused V’s death using, as it were, B as his instrument to cause the death. This is further buttressed by the fact that A was the creator of the circumstances that led to V’s death. The same reasoning may apply to cases when the intervening cause was by V herself or himself as opposed to a third party. In Royall v The Queen , a leading Australian case on causation, R had violently attacked V.^35 On one view of the evidence, V jumped to her death from a high building in an effort to escape the attack. R was regarded to have caused V’s death because he impaired her autonomy in respect of her conduct and created the emergency she faced. There is another way of reaching the same result in these cases of intervening causes. It is to ask whether a reasonable person in the accused’s position could have foreseen that her or his conduct might lead to the intervening causal occurrence.^36 If so, then the accused remains causally responsible for the eventual harm occasioned by the intervening cause. To return to the case of shooting, A would have reasonably foreseen both B’s act of shooting and V’s death from the gun wound since it was he who had coerced B into shooting V. Similarly, with regard to the facts in Royall , R could have reasonably foreseen that V might seek to escape from his violent attack by jumping from the building.
33 For a detailed discussion, see M. Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal Law , Oxford University Press, Oxford, 1993. 34 For primary Australian cases on causation, see R v Hallett [1969] SASR 141; R v Moffatt (2000) 112 A Crim R 201; Royall v The Queen (1991) 172 CLR 378; Arulthilakan v The Queen (2003) 78 ALJR 257. 35 Royall v The Queen (1991) 172 CLR 378. 36 See E. Colvin, ‘Causation in Criminal Law’, Bond Law Review , 1(2), 1989, p. 253; K. Arenson, ‘Causation in the Criminal Law: A Search for Doctrinal Consistency’, Criminal Law Journal , 20(4), 1996, p. 189. For a recent judicial discourse on the role of reasonable foreseeability in the causal inquiry, see the Supreme Court of Canada case of R v Maybin 2012 SCC 24.
20 AUSTRALIAN CRIMINAL JUSTICE
MENTAL ELEMENTS
We have just noted the signifi cant impact that the principle of individual autonomy has in moulding the conduct elements of crime. This principle also plays a significant role in linking criminal responsibility to personal awareness about the consequences of one’s conduct.^37 Individual autonomy requires people to be judged by their free choice of actions. This choice is present only if individuals knew of the consequences of their conduct or knew the actual circumstances under which they were operating. This may be described as the subjective approach in that it places emphasis on the personal viewpoint of the particular defendant. However, the community welfare principle supports an objective approach. According to this principle, individuals should be convicted irrespective of whether they possessed free choice of action, if future crime is prevented or reduced. 38 Additionally, the principle focuses on the actual consequences of an accused’s conduct or the actual circumstances under which the conduct occurred rather than on the accused’s mental state during the performance of the conduct. An objective approach to criminal responsibility is thereby advocated in that it places emphasis on the actual state of affairs resulting from or surrounding the commission of the crime. Current ‘common law’ favours the subjective approach to criminal responsibility. The general rule is that the prosecution bears the burden of proving that the accused intended or knowingly risked the consequences of her or his conduct. In contrast, the criminal codes of Queensland, Western Australia and Tasmania lean towards the objective approach. 39 Apart from certain crimes such as murder and many property offences, the prosecution in these jurisdictions does not need to prove a particular mental state of the accused. Instead, the prosecution would only need to disprove that the conduct was done accidentally or under an honest and reasonable mistaken belief, if those issues are raised by the defence. It is worthwhile noting that the committee that developed a model criminal code for Australia has preferred the subjective approach.^40 While acknowledging the good service that the criminal codes had given to Queensland, Western Australia and Tasmania, the committee believed that those codes were out of line with modern thinking about criminal responsibility. The trend is towards presuming a subjective mental state as part of the definition of all offences, accompanied by the prosecution bearing the burden of proving such a mental state. In the ensuing discussion, the framework incorporating a subjective approach to criminal responsibility will be adopted. First, the salient forms of subjective mental states contained in the criminal law are presented. This will be followed by certain objective principles that have retained a stronghold in the criminal law. It will be observed how the law generally upholds the subjective approach but does occasionally give way to arguments based on community welfare on grounds of ‘public interest’.
37 See H. L. A. Hart, Punishment and Responsibility. Essays in the Philosophy of Law , 2nd edn, Oxford University Press, Oxford, 2008, Chs 2 and 5. 38 The community welfare principle is therefore associated with utilitarian theories that promote general deterrence: see K. Greenawalt, ‘Punishment’ in S. Kadish (ed.), Encyclopedia of Crime and Justice , vol. 4, Free Press, New York, 1983, p. 1336. 39 See, for example, ss. 23 and 24 of the Queensland and Western Australian codes, and ss. 13 and 14 of the Tasmanian code. For a further discussion, see R. G. Kenny, An Introduction to Criminal Law in Queensland and Western Australia , 7th edn, Butterworths, Sydney, 2008, paras 8.13–8.17. 40 Model Criminal Code Officers Committee, General Principles of Criminal Responsibility , Commonwealth Attorney- General’s Department, Canberra, 1992, p. 25. See above, p. 12.
22 AUSTRALIAN CRIMINAL JUSTICE
that risk.^44 Any significant degree of risk (other than virtual certainty, which is covered by intention) will normally suffice for recklessness. A proviso to criminal responsibility based on recklessness is that the accused must be unjustified in taking the risk, which he or she believes to be present. This rarely poses a problem as the bulk of reckless criminal incidents involve socially unjustifiable risk-taking.^45 However, this requirement does explain why a surgeon performing a difficult but necessary operation may not be made criminally responsible for a consequent death even though there was a substantial risk of failure. The Commonwealth Criminal Code encapsulates these various aspects of recklessness into the following definition:
A person is reckless with respect to a circumstance when he or she is aware of a substantial risk that it exists or will exist and it is, having regard to the circumstances as known to him or her, unjustifiable to take the risk. A person is reckless with respect to a result when he or she is aware of a substantial risk that it will occur and it is, having regard to the circumstances as known to him or her, unjustifiable to take the risk.^46 It would be desirable for other Australian jurisdictions to enact legislation that also made it clear that recklessness requires the unjustified taking of the foreseen risk.
Knowledge
Knowledge constitutes awareness that a specified circumstance exists or that a consequence will ensue. It is distinguishable from recklessness, which, as we have seen, concerns foresight of a risk of something that may or may not result or be present. In contrast, a person cannot ‘know’ something unless he or she believes it exists or will exist. The Commonwealth Criminal Code subscribes to this distinction by defining knowledge in the following terms:
A person has knowledge of a circumstance or a result when he or she is aware that it exists or will exist in the ordinary course of events. 47 Occasionally, a defendant might seek to rebut knowledge on the ground of mistaken belief. For example, an element of the crime of rape is knowledge that the victim did not consent to sexual intercourse. D may have believed, but believed mistakenly, that V had so consented.^48 In such a case, the subjective approach of the criminal law will cause D to be acquitted because his honest mistaken belief rendered absent the knowledge requirement of the offence. Acquittal will lie even if there were no reasonable grounds for such a mistaken belief.^49 This position stems from the principle of individual autonomy, which requires criminal responsibility to be based on what defendants believed they were doing, not on the basis of actual facts that were unknown to them at the time. It should be mentioned that a contrary view exists that sees the need for an element of reasonableness to
44 Fisse, 1990a, pp. 62–3. This may be described as ‘advertent recklessness’ on account of the need for actual foresight by the accused. In the context of sexual assault law, some jurisdictions such as New South Wales have extended the defi nition of recklessness to recognise ‘inadvertent recklessness’, which involves a failure to consider whether the complainant was not consenting to sexual intercourse with the accused. 45 For a recent case illustration, see Lustig [2009] NSWCCA 143 at [74]. 46 Section 5.4(1). 47 Section 5.3. 48 D would not have been reckless since, as far as he was concerned, he knew for certain that V consented. D would be reckless only if he were unsure whether V consented and proceeded nevertheless to have sexual intercourse with her. 49 R v McEwan [1979] 2 NSWLR 926. More generally, the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523 has held that an honest belief is sufficient with respect to the effect of a mistake, for crimes requiring proof of a subjective mental state.
CHAPTER 1 CRIMINAL RESPONSIBILITY 23
be added to the mistaken belief. This view takes an objective approach to criminal responsibility. It imposes what is considered to be an easily dischargeable duty on the defendant to ask the victim whether she consents before proceeding to engage in sexual intercourse with her. The criminal codes of Queensland, Western Australia and Tasmania support this approach by insisting on the defendant’s mistake of fact to be both honest and reasonable.^50
Select a crime that you are familiar with and obtain its legal definition. Break that definition down into its component elements and attempt to explain why the criminal law has chosen each of these elements for the crime selected.
CONTEMPORANEITY
Thus far, we have covered both conduct elements and mental elements of a crime. But proof of these elements alone is insufficient to establish criminal responsibility. There is a further requirement that the conduct element must coincide with the mental element of the crime. This has been described as the principle of contemporaneity.^51 It asserts that criminal responsibility should be confined in point of time to when the proscribed conduct was performed together with the requisite mental state. Hence, a person who took a bag believing it to be hers would not be guilty of theft, even though she may have decided to keep the bag for herself upon subsequently discovering the mistake. Occasionally, the criminal law places a premium on the accused’s mental state and downplays the principle of contemporaneity. Take the case of D who strikes V’s head with the intention of killing him and then, thinking V to be dead, throws his body into a river. V dies by drowning. D will be found guilty of murder in these circumstances even though, strictly speaking, the proscribed conduct of killing V by throwing him into the river did not coincide in point of time with the requisite mental state for murder. 52
OBJECTIVE PRINCIPLES
The community welfare principle sees individual autonomy as giving way to the greater good of society. In line with this principle, objective criteria such as the seriousness of consequences and the deterrent effect of conviction and punishment should be afforded greater weight than the culpable mental state of individual actors. Some manifestations of this kind of objective approach to criminal responsibility will now be presented.
CONSTRUCTIVE LIABILITY
There are instances in the criminal law where people are convicted of serious crimes when they lacked the mental state normally required for those crimes. An example is the ‘constructive-murder’ rule found in New South Wales.^53 Under this rule, a person may be guilty of murder if, while in the course of committing an offence punishable by imprisonment for 25 years (such as armed robbery with
50 Queensland and Western Australian codes, s. 24; Tasmanian code, s. 14. Recent New South Wales legislation is to like effect: see Chapter 10, p. 350. 51 See Ashworth and Horder, 2013, p. 81; Fisse, 1990a, pp. 133–4. 52 Meyers v The Queen (1997) 71 ALJR 1488; R v McConnell [1977] 1 NSWLR 714; Thabo Meli v The Queen [1954] 1 WLR 228. 53 See s. 18 of the Crimes Act 1900 (NSW). See also s. 3A of the Crimes Act 1958 (Vic).
CHAPTER 1 CRIMINAL RESPONSIBILITY 25
This demanding test of gross negligence is appropriate for very serious crimes like manslaughter. However, the degree of negligence may be diminished for less serious crimes such as negligently entering a protected area of the Great Barrier Reef.^57
STRICT AND ABSOLUTE LIABILITY
Strict liability offences are those offences for which a person may be convicted without proof of intention, recklessness or knowledge. For example, a statute may enable D to be convicted on evidence that he sold adulterated meat without needing to prove further that he knew of the adulteration. However, defendants may escape criminal responsibility by raising the defence of honest and reasonable mistake of fact, which is essentially a claim that they were not negligent when performing the proscribed conduct. Using the above example, D could claim that he honestly and reasonably believed that the meat sold was fit for human consumption because it had been supplied only a few hours earlier by the local abattoir. In contrast, absolute liability offences are more draconian in that they do not permit a claim of honest and reasonable mistake of fact. The justifications for offences of strict and absolute liability appear to be based on economics and expediency. There are numerous trivial social mischiefs that hamper the smooth daily running of society. The threat of criminal sanction is a ready tool to deter them. Whether this is a proper function of the criminal law has already been raised. The point about the triviality of the social mischiefs is significant for three reasons. One is the economic argument that these minor offences are not worth the public expense of requiring the prosecution to prove a subjective mental state. A second reason concerns individual fairness—while fairness may arguably be overridden by economic considerations in cases of minor offences, it cannot be so overridden where the offence is grave. Thirdly, since the social mischiefs are trivial, they should attract only non-custodial sentences such as fines.^58 The severe position created by absolute liability offences and their denial of claims of honest and reasonable mistake of fact is supported by an argument based on social defence. It is that the fundamental values and interests sought to be protected by the criminal law should not be abandoned when their infringements were due to a mistake or accident, however reasonable, on the defendant’s part.^59 The criticism against having absolute liability offences stems from the fact that they are (or should be) confined to trivial harms.^60 The criminal law should not be used to control such minor social mischiefs. Other preventative measures such as education and civil regulation should be relied upon to reduce the minor harms that are currently the subject of absolute liability offences. Of course, this same criticism can be directed against strict liability offences. But at least individual fairness is afforded to people charged with these offences in the form of a claim of honest and reasonable mistake of fact.
Is it fair on accused persons to punish them on the basis of objective principles of criminal responsibility such as those described above?
57 White v Patterson [2009] QCA 320 at [50]. 58 See He Kaw Teh v The Queen (1985) 157 CLR 523. See also Parliament of New South Wales Legislation Review Committee, Strict and Absolute Liability. Responses to the Discussion Paper , Report No. 6, Sydney, 2006. 59 Ashworth and Horder, 2013, pp. 161–3. 60 For example, see CTM v The Queen [2008] HCA 25 where the High Court ruled that New South Wales child sex offence laws did not attract absolute liability. See also Hogan v Hinch [2011] HCA 4.
26 AUSTRALIAN CRIMINAL JUSTICE
CRIMINAL DEFENCES
In practice, accused persons will often seek to avoid criminal liability by challenging the case against them, such as by casting doubt on the evidence tendered by the prosecution. Accused people may also seek to rely on legally recognised defences to criminal charges against them. 61 Some defences, such as mistake of fact,^62 accident and, to some extent, insanity and intoxication, have the effect of negating the mental element of the crime. Other defences, such as automatism and, again to some extent, insanity and intoxication, negate a conduct element of the crime. Still others, such as duress, necessity and self-defence, serve as excuses or justifications for the criminal behaviour. For this last group of defences, both the conduct and mental elements have been established. However, in respect of excusatory defences, the accused is deemed to be blameless because there were certain extenuating circumstances operating at the time of the offence. With regard to justificatory defences, there were circumstances that made the conduct rightful. Only some of these defences will be presented here. As with the preceding parts of this chapter, the primary focus of the discussion will be on the tension between the principles of individual autonomy and community welfare.
INSANITY
The insanity (or ‘mental impairment’) defence proceeds in two stages.^63 First, the accused must have been deprived of reasoning power due to a disease of the mind when the offence occurred. Then it must be established that such deprivation of reasoning power caused the accused not to realise what he or she was doing, or at least not to realise that it was wrong. The result of successfully pleading this defence is a special verdict of not guilty by reason of insanity. Under this verdict, the accused is not convicted of the crime charged, but is committed indefinitely to an institution for psychiatric treatment. The principle of individual autonomy explains the defence in several ways. A person who, by virtue of disease of the mind, did not realise what he or she was doing, may be regarded as having acted involuntarily. For example, a person may be so psychotic that her or his conduct could properly be described as that of an automaton (or robot), devoid of the will to act required for voluntary conduct. The lack of realisation of what he or she was doing would also normally result in rendering absent subjective mental states such as intention, knowledge or recklessness. Even if the conduct had been voluntary and the relevant mental state was present, the disease of the mind might operate to render the accused blameless for the harm caused. This is because the disease of the mind could have caused her or him to fail to appreciate that the conduct was morally wrong (usually meaning that the accused believed, by some distorted reasoning process, that the conduct was justifiable). Given the absence of either the conduct or mental element for the crime, the principle of individual autonomy insists on the complete acquittal of the accused.
61 For a full discussion of the available defences, see P. Fairall and S. Yeo, Criminal Defences in Australia , 4th edn, Butterworths, Sydney, 2005. 62 This is distinguishable from the defence of honest and reasonable mistake of fact noted in our discussion of strict and absolute liability offences. Here, D need only plead that her or his belief was honest and it would not matter (other than going to the question of honesty) that the belief was unreasonable. For example, in some jurisdictions, D could be acquitted of rape if he honestly believed V to have consented to sexual intercourse. 63 What follows is essentially the McNaghten formulation of the defence at common law. For a leading Australian case, see R v Porter (1933) 55 CLR 182. There are some variations under the criminal codes: see, for example, s. 27 of the Queensland and Western Australian codes.
