Fault Elements for Criminal Offences (NSW)

In New South Wales, some criminal offences have a fault element, while others do not. A fault element is the state of mind that an accused must have had to be found guilty of an offence. This page sets out the different fault elements that can apply to offences in New South Wales and gives examples of offences with different fault elements and offences that have no fault element.

What is a fault element?

A fault element is also known as a mental element.

An offence may have a fault element of intention, meaning the accused deliberately did an act or made an omission; of recklessness, meaning that they were aware of a substantial risk and took the risk under circumstances where it was unjustifiable; of negligence, meaning that their behaviour involves such a great falling short of the standards of care that a reasonable person would exercise in the circumstances that it merits criminal punishment; or of knowledge, meaning that the accused must have known the facts that made their actions unlawful.

Examples

In New South Wales, an offence that has a mental element of intention is larceny. Larceny, or theft, is an offence that occurs when a person dishonestly takes property belonging to another person with the intention of permanently depriving them of it. Without that specific intention, larceny has not occurred.

In contrast to larceny, sexual assault is an offence that requires a fault element either of knowledge or recklessness. A person who engages in sexual intercourse with another person without consent is guilty of sexual assault if they know that the other person does not consent to sex or if they are reckless as to whether or not the other person consents.

A person who is charged with a child sex offence such as sexual intercourse with a child under 16 will be found guilty if the physical elements as well as the fault element of knowledge are fulfilled. If a person had a reasonable but mistaken belief that the young person involved was aged over 16, they have a defence.

Offences without a fault element

Some offences do not involve a fault element. This means that if a person is proven to have committed the physical elements, they will be found guilty regardless of their state of mind. An offence with no fault element may be a strict liability offence or an absolute liability offence.

Strict liability offences

A strict liability offence does not have a fault element. However, a person charged with this offence can rely on the defence of honest and reasonable mistake of fact. For example, the offence of contravening an apprehended violence order is a strict liability offence. This means that the accused does not need to have intended to commit the offence or been reckless as to the offence. However, they do need to have known about the existence of the facts that make up the breach. If the act came about because of a mistaken belief about a matter of fact, no offence has occurred.

Absolute liability offences

An absolute liability offence does not have a fault element. A person charged with this offence cannot rely on the defence of honest and reasonable mistake of fact. This means that a person charged with an absolute liability offence will be found guilty if they committed the physical elements regardless of their mental state and regardless of what they did or did not know. For example, if a person is caught drink driving, it is irrelevant what their mental state is and what they knew or did now know about their BAC level.

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