Fault Elements for Criminal Offences

Many criminal offences involve what is known as a ‘fault element’. This is the mental state that the accused must have been found to have had to be found guilty of the offence. A person may be found not guilty of an offence if they committed the physical elements of the offence but the fault element, or mental element, was not present. This page deals with the fault elements of criminal offences in the ACT.

Legislation

Fault elements are set out in Part 2.2.3 of the Criminal Code 2002. Division 2.2.4 sets out the cases where no fault element applies.

What is a fault element?

A fault element is the mental state involved in an offence. The fault element may be intention (meaning that the accused specifically intended to do something), recklessness (meaning that the accused failed to consider whether something would occur), negligence (meaning that the accused failed to take due care) and knowledge (meaning that the accused was aware that a particular result or circumstance existed).

Intention

Under section 18 of the Criminal Code 2002, a person has intention if they mean to engage in conduct.

Knowledge

Under section 19 of the Criminal Code 2002, a person has knowledge of a result or circumstance if they are aware that it exists or will exist in the ordinary course of events.

Recklessness

Under section 20 of the Criminal Code 2002, a person is reckless as to a circumstance or result if:

• they are aware of a substantial risk that the circumstance will exist or that the result will happen; and
• in the circumstances, it is unjustifiable to take that risk.

Negligence

Under section 21 of the Criminal Code 2002, a person is negligent if their conduct warrants criminal punishment because:

• there was a great falling short of the standards of care that a reasonable person would exercise in the circumstances; and
• there was a high risk that the physical element of the offence would exist.

Examples of offences with fault elements

In the ACT, the following offences involve fault elements.

Assault

An assault offence has a fault element of intention or recklessness. A person may be guilty of an assault because they deliberately carried out the offence, or because they were reckless as to whether their actions would result in an assault.

Sexual intercourse with a young person

An offence of sexual intercourse with a young person under section 55 of the Crimes Act 1900 involves a fault element of knowledge. A person may be found guilty of this offence if they knew that the young person involved was under the age of 16. However, if the accused had a reasonable belief that the young person was over 16, they would be found not guilty.

Theft

The offence of theft is set out in section 308 of the Criminal Code 2002. Theft has a fault element of intention as it requires the accused to have intended to permanently deprive a person of property.

Offences that do not have fault elements

Some offences do not involve a fault element. This means that a person who commits the physical element is guilty regardless of their state of mind. Offences of this type may be strict liability offences or absolute liability offences.

Strict liability

Strict liability offences are offences for which there is no fault element but the defence of honest and reasonable mistake of fact is available. For example, the offence of contravening a family violence order is a strict liability offence. This means that the accused does not need to have intended to breach the order, or to have been reckless as to the breach. However, they do need to have known about the facts that make up the breach.

Absolute liability

Absolute liability offences are offences for which there is no fault element and the defence of honest and reasonable mistake of fact is not available. For example, drink driving offences are absolute liability. When a person is charged with these offences, it is irrelevant whether they intended to drive while over the legal limit and it is not a defence if they made an honest and reasonable mistake about their BAC level.

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