Australian Capital Territory
Criminal Code 2001      No 64 (repealed)
Republication No 1
Effective:  1 January 2003
Republication date: 1 January 2003
As repealed by Act 2002 No 51

Unauthorised version prepared by ACT Parliamentary Counsel’s Office

About this republication
The republished law
This is a republication of the Criminal Code 2001 (repealed) (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)).  It also includes any commencement, amendment, repeal or expiry affecting the republished law to 1 January 2003.  
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4. 
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at www.legislation.act.gov.au):
•	authorised republications to which the Legislation Act 2001 applies
•	unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication.  Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117).  The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.  
When preparing the authorised version of this republication amendments were not made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced or is affected by an uncommenced amendment, the symbol  U  appears immediately before the provision heading.  The text of the uncommenced provision or amendment appears only in the last endnote.
Modifications
If a provision of the republished law is affected by a current modification, the symbol  M  appears immediately before the provision heading.  The text of the modifying provision appears in the endnotes.  For the legal status of modifications, see Legislation Act 2001, section 95.
Penalties
The value of a penalty unit for an offence against this republished law at the republication date is—
	(a)	if the person charged is an individual—$100; or
	(b)	if the person charged is a corporation—$500.

Australian Capital Territory
Criminal Code 2001 (repealed)

Contents
	Page

Chapter 1	Preliminary
	1	Name of Act	2
	2	Commencement	2
	3	Dictionary	2
	4	Notes	2
Chapter 2	General principles of criminal responsibility
Part 2.1	Purpose and application
	5	Purpose of ch 2	3
	6	Application of ch 2	3
Part 2.2	The elements of an offence
Division 2.2.1	General
	7	Elements	4
	8	Establishing guilt of offences	4
Division 2.2.2	Physical elements
	9	Physical elements	4
	10	Voluntariness	5
	11	Omissions	5
Division 2.2.3	Fault elements
	12	Fault elements	6
	13	Intention	6
	14	Knowledge	6
	15	Recklessness	6
	16	Negligence	7
Division 2.2.4	Cases where fault elements are not required
	17	Strict liability	7
	18	Absolute liability	8
Part 2.3	Circumstances where there is no criminal responsibility
	19	Mistake or ignorance of fact—fault elements other than negligence	9
	20	Mistake of fact—strict liability	9
	21	Mistake or ignorance of statute law	10
	22	Claim of right	11
Part 2.6	Proof of criminal responsibility
	23	Legal burden of proof—prosecution	12
	24	Standard of proof—prosecution	12
	25	Evidential burden of proof—defence	12
	26	Legal burden of proof—defence	13
	27	Standard of proof—defence	13
	28	Use of averments	14
Chapter 3	Miscellaneous
	29	Regulation-making power	15
	30	Consequential amendments—sch 1	15
Schedule 1	Consequential amendments	16
Part 2	Magistrates Court Act 1930	16
Dictionary		17
Endnotes
	1	About the endnotes	18
	2	Abbreviation key	18
	3	Legislation history	19
	4	Amendment history	19

Australian Capital Territory
Criminal Code 2001 (repealed)

An Act relating to the criminal law

    

Chapter 1	Preliminary

1	Name of Act
This Act is the Criminal Code 2001.
2	Commencement
This Act commences on 1 January 2003.
3	Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1	The dictionary at the end of this Act defines certain words and expressions used in this Act, and includes references (signpost definitions) to other words and expressions defined elsewhere in this Act.
	For example, the signpost definition ‘conduct—see section 9 (2) (Physical elements).’ means that the expression ‘conduct’ is defined in that section.
Note 2	A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Interpretation Act 1967, s 11F and s 11G).
4	Notes
A note included in this Act is explanatory and is not part of this Act.
Note	See Interpretation Act 1967, s 12 (1), (4) and (5) for the legal status of notes.

Chapter 2	General principles of criminal responsibility
Part 2.1	Purpose and application
    
5	Purpose of ch 2
	(1)	The purpose of this chapter is to codify general principles of criminal responsibility under ACT law.  
	(2)	It contains some, but not all, of the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.
6	Application of ch 2
	(1)	This chapter applies to all offences against this Act and all other offences against ACT law.
	(2)	However, this chapter does not apply to offences created before its commencement until 1 January 2006 or, if another date is prescribed under the regulations for this subsection, that date.
	(3)	Subsection (2) and this subsection expire on 1 January 2006 or, if another date is prescribed under the regulations for this subsection, that date.

Part 2.2	The elements of an offence
Division 2.2.1	General
7	Elements
	(1)	An offence consists of physical elements and fault elements.
	(2)	However, the law that creates the offence may provide that there is no fault element for 1 or more physical elements.
	(3)	The law that creates the offence may provide different fault elements for different physical elements.
8	Establishing guilt of offences
A person must not be found guilty of committing an offence unless the following is proved:
	(a)	the existence of the physical elements that are, under the law creating the offence, relevant to establishing guilt;
	(b)	for each of the physical elements for which a fault element is required, 1 of the fault elements for the physical element.
Note	See pt 2.6 on proof of criminal responsibility.
Division 2.2.2	Physical elements
9	Physical elements
	(1)	A physical element of an offence may be—
	(a)	conduct; or
	(b)	a circumstance in which conduct happens; or
	(c)	a result of conduct.
	(2)	In this Act:
conduct means an act, an omission to perform an act or a state of affairs.
10	Voluntariness
	(1)	Conduct can only be a physical element if it is voluntary.
	(2)	Conduct is voluntary only if it is a product of the will of the person whose conduct it is.
	(3)	The following are examples of conduct that is not voluntary:
	(a)	a spasm, convulsion or other unwilled bodily movement;
	(b)	an act performed during sleep or unconsciousness;
	(c)	an act performed during impaired consciousness depriving the person of the will to act.
	(4)	An omission to perform an act is voluntary only if the act omitted is an act that the person can perform.
	(5)	If the conduct constituting an offence consists only of a state of affairs, the state of affairs is voluntary only if it is a state of affairs over which the person can exercise control.
Note	The Crimes Act 1900, part 11B deals with intoxication.
11	Omissions
An omission to perform an act can only be a physical element if—
	(a)	the law creating the offence makes it a physical element; or
	(b)	the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that, by law, there is a duty to perform.
Division 2.2.3	Fault elements
12	Fault elements
	(1)	A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
	(2)	Subsection (1) does not prevent a law that creates an offence from providing other fault elements for a physical element of the offence.
13	Intention
	(1)	A person has intention in relation to conduct if the person means to engage in the conduct.
	(2)	A person has intention in relation to a circumstance if the person believes that it exists or will exist.
	(3)	A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
14	Knowledge
A person has knowledge of a circumstance or result if the person is aware that it exists or will exist in the ordinary course of events.
15	Recklessness
	(1)	A person is reckless in relation to a circumstance if—
	(a)	the person is aware of a substantial risk that the circumstance exists or will exist; and
	(b)	having regard to the circumstances known to the person, it is unjustifiable to take the risk.
	(2)	A person is reckless in relation to a result if—
	(a)	the person is aware of a substantial risk that the result will happen; and
	(b)	having regard to the circumstances known to the person, it is unjustifiable to take the risk.
	(3)	The question whether taking a risk is unjustifiable is a question of fact.
	(4)	If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
16	Negligence
A person is negligent in relation to a physical element of an offence if the person’s conduct merits criminal punishment for the offence because it involves—
	(a)	such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
	(b)	such a high risk that the physical element exists or will exist.
Division 2.2.4	Cases where fault elements are not required
17	Strict liability
	(1)	If a law that creates an offence provides that the offence is an offence of strict liability—
	(a)	there are no fault elements for any of the physical elements of the offence; and
	(b)	the defence of mistake of fact under section 20 (Mistake of fact—strict liability) is available.
	(2)	If a law that creates an offence provides that strict liability applies to a particular physical element of the offence—
	(a)	there are no fault elements for that physical element; and
	(b)	the defence of mistake of fact under section 20 is available in relation to that physical element.
	(3)	The existence of strict liability does not make any other defence unavailable.
18	Absolute liability
	(1)	If a law that creates an offence provides that the offence is an offence of absolute liability—
	(a)	there are no fault elements for any of the physical elements of the offence; and
	(b)	the defence of mistake of fact under section 20 (Mistake of fact—strict liability) is not available.
	(2)	If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence—
	(a)	there are no fault elements for that physical element; and
	(b)	the defence of mistake of fact under section 20 is not available in relation to that physical element.
	(3)	The existence of absolute liability does not make any other defence unavailable.

Part 2.3	Circumstances where there is no criminal responsibility
    
19	Mistake or ignorance of fact—fault elements other than negligence
	(1)	A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if—
	(a)	at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
	(b)	the existence of the mistaken belief or ignorance negates any fault element applying to that physical element.
	(2)	In deciding whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
20	Mistake of fact—strict liability
	(1)	A person is not criminally responsible for an offence that has a physical element for which there is no fault element if—
	(a)	at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and was under a mistaken but reasonable belief about those facts; and
	(b)	had those facts existed, the conduct would not have constituted an offence.
	(2)	A person may be regarded as having considered whether or not facts existed if—
	(a)	the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
	(b)	the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
Note	Section 18 (Absolute liability) prevents this section applying to offences of absolute liability.
21	Mistake or ignorance of statute law
	(1)	A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, the person is mistaken about, or ignorant of, the existence or content of a law that directly or indirectly creates the offence or affects its scope or operation.
	(2)	Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if—
	(a)	a law expressly or impliedly provides that the person is not criminally responsible; or
	(b)	the ignorance or mistake negates a fault element applying to a physical element of the offence.
	(3)	In this section:
law means an Act or subordinate law.
22	Claim of right
	(1)	A person is not criminally responsible for an offence that has a physical element relating to property if—
	(a)	at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and
	(b)	the existence of the right would negate a fault element for any physical element of the offence.
	(2)	A person is not criminally responsible for any other offence arising necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believes to exist.
	(3)	This section does not negate criminal responsibility for an offence relating to the use of force against a person.

Part 2.6	Proof of criminal responsibility
    
Note	The part numbering is out of sequence because it follows the part numbering in the Criminal Code Act 1995, sch (Cwlth).
23	Legal burden of proof—prosecution
	(1)	The prosecution has the legal burden of proving every element of an offence relevant to the guilt of the person charged.
Note	See s 7 (Elements) on what elements are relevant to a person’s guilt.
	(2)	The prosecution also has the legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof on the defendant.
	(3)	In this Act:
legal burden, in relation to a matter, means the burden of proving the existence of the matter.
24	Standard of proof—prosecution
	(1)	A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
	(2)	Subsection (1) does not apply if an Act or subordinate law provides for a different standard of proof.
25	Evidential burden of proof—defence
	(1)	Subject to section 26 (Legal burden of proof—defence), a burden of proof that a law imposes on a defendant is an evidential burden only.
	(2)	A defendant who wishes to deny criminal responsibility by relying on a provision of part 2.3 (Circumstances where there is no criminal responsibility) has an evidential burden in relation to the matter.
	(3)	Subject to section 26, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) has an evidential burden in relation to the matter.
	(4)	The defendant no longer has the evidential burden in relation to a matter if evidence sufficient to discharge the burden is presented by the prosecution.
	(5)	The question whether an evidential burden has been discharged is a question of law.
	(6)	In this Act:
evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
26	Legal burden of proof—defence
A burden of proof that a law imposes on the defendant is a legal burden only if the law expressly—
	(a)	provides that the burden of proof in relation to the matter in question is a legal burden; or
	(b)	requires the defendant to prove the matter; or
	(c)	creates a presumption that the matter exists unless the contrary is proved.
27	Standard of proof—defence
A legal burden of proof on the defendant must be discharged on the balance of probabilities.
28	Use of averments
A law that allows the prosecution to make an averment (however expressed) does not allow the prosecution—
	(a)	to aver any fault element of an offence; or
	(b)	to make an averment in prosecuting for an offence that is directly punishable by imprisonment.

Chapter 3	Miscellaneous

29	Regulation-making power
The Executive may make regulations for this Act.
Note	Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001.
30	Consequential amendments—sch 1
Schedule 1 amends the Acts mentioned in it.

Schedule 1	Consequential amendments
(see s 30)
Part 2	Magistrates Court Act 1930
[1.2]	Section 59
omit

Dictionary
(see s 3)
conduct—see section 9 (2) (Physical elements).
evidential burden—see section 25 (6) (Evidential burden of proof—defence).
fault element—see section 12.
intention—see section 13.
knowledge—see section 14.
law means a law of the Territory, and includes this Act.
legal burden—see section 23 (Legal burden of proof—prosecution).
negligence—see section 16.
offence means an offence against a law of the Territory.
physical element—see section 9.
recklessness—see section 15.

Endnotes
1	About the endnotes
Amending and modifying laws are annotated in the legislation history and the amendment history.  Current modifications are not included in the republished law but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history.  Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws and expiries are listed in the legislation history and the amendment history.  These details are underlined.  Uncommenced provisions and amendments are not included in the republished law but are set out in the last endnote.
If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering.  
The endnotes also include a table of earlier republications.
If the republished law includes penalties, current information about penalty unit values appears on the republication inside front cover.
2	Abbreviation key

am = amended	ord = ordinance	
amdt = amendment	orig = original	
ch = chapter	p = page	
cl = clause	par = paragraph	
def = definition	pres = present	
dict = dictionary	prev = previous	
disallowed = disallowed by the Legislative 	(prev...) = previously	
Assembly	prov = provision	
div = division	pt = part	
exp = expires/expired	r = rule/subrule	
Gaz = Gazette	reg = regulation/subregulation	
hdg = heading	renum = renumbered	
IA = Interpretation Act 1967	reloc = relocated	
ins = inserted/added	R[X] = Republication No	
LA = Legislation Act 2001	RI = reissue	
LR = legislation register	s = section/subsection	
LRA = Legislation (Republication) Act 1996	sch = schedule	
mod = modified / modification	sdiv = subdivision	
No = number	sub = substituted	
num = numbered	SL  = Subordinate Law	
o = order	underlining = whole or part not commenced	
om = omitted/repealed	or to be expired	
3	Legislation history
Criminal Code 2001 No 64
notified 10 September 2001 (Gaz 2001 No S66)
s 1, s 2 commenced 10 September 2001 (IA s 10B)
remainder never commenced (s 2 as am by Criminal Code Amendment Act 2002 No 2)
Note	This Act was repealed when it commenced. See Criminal Code 2002 No 51 s 126 and LA s 85 (2).
as amended by
Criminal Code Amendment Act 2002 No 2
notified LR 7 March 2002
s 1, s 2 commenced 7 March 2002 (LA s 75)
remainder commenced 9 March 2002 (s 2)
Legislation Amendment Act 2002 No 11 sch 2 pt 2.14
notified LR 27 May 2002
s 1, s 2 commenced 27 May 2002 (LA s 75)
sch 2 pt 2.14 commenced 28 May 2002 (s 2 (1))
as repealed by
Criminal Code 2002 No 51 s 126
notified LR 20 December 2002
s 1, s 2 commenced 20 December 2002 (LA s 75)
s 126 commenced 1 January 2003 (s 2)
4	Amendment history
Commencement
s 2	am 2002 No 2 s 4
Interpretation Act 1967
sch 1, pt 1	om 2002 No 11 amdt 2.29

©  Australian Capital Territory 2003