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Criminal Code Act 1995

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Act No. 12 of 1995 as made
An Act relating to the criminal law
Administered by: Attorney-General's
Date of Assent 15 Mar 1995
 

CRIMINAL CODE ACT 1995 No. 12, 1995

Making Information
- Assented to 15 March 1995

CRIMINAL CODE ACT 1995 No. 12 of 1995 - TABLE OF PROVISIONS

TABLE OF PROVISIONS
PART 1-PRELIMINARY
Section
1. Short title
2. Commencement
3. The Criminal Code
4. Definitions
SCHEDULE
THE CRIMINAL CODE
CHAPTER 1-CODIFICATION
Division 1
1.1 Codification
CHAPTER 2-GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY
PART 2.1-PURPOSE AND APPLICATION
Division 2
2.1 Purpose
2.2 Application
PART 2.2-THE ELEMENTS OF AN OFFENCE
Division 3-General
3.1 Elements
3.2 Establishing guilt in respect of offences
Division 4-Physical elements
4.1 Physical elements
4.2 Voluntariness
4.3 Omissions
Division 5-Fault elements
5.1 Fault elements
5.2 Intention
5.3 Knowledge
5.4 Recklessness
5.5 Negligence
5.6 Offences that do not specify fault elements
Division 6-Cases where fault elements are not required
6.1 Strict liability
6.2 Absolute liability
PART 2.3-CIRCUMSTANCES IN WHICH THERE IS NO CRIMINAL RESPONSIBILITY
Division 7-Circumstances involving lack of capacity
7.1 Children under 10
7.2 Children over 10 but under 14
7.3 Mental impairment
Division 8-Intoxication
8.1 Definition-self-induced intoxication
8.2 Intoxication (offences involving basic intent)
8.3 Intoxication (negligence as fault element)
8.4 Intoxication (relevance to defences)
8.5 Involuntary intoxication
Division 9-Circumstances involving mistake or ignorance
9.1 Mistake or ignorance of fact (fault elements other than
negligence)
9.2 Mistake of fact (strict liability)
9.3 Mistake or ignorance of statute law
9.4 Mistake or ignorance of subordinate legislation
9.5 Claim of right
Division 10-Circumstances involving external factors
10.1 Intervening conduct or event
10.2 Duress
10.3 Sudden or extraordinary emergency
10.4 Self-defence
PART 2.4-EXTENSIONS OF CRIMINAL RESPONSIBILITY
Division 11
11.1 Attempt
11.2 Complicity and common purpose
11.3 Innocent agency
11.4 Incitement
11.5 Conspiracy
11.6 References in Acts to offences
PART 2.5-CORPORATE CRIMINAL RESPONSIBILITY
Division 12
12.1 General principles
12.2 Physical elements
12.3 Fault elements other than negligence
12.4 Negligence
12.5 Mistake of fact (strict liability)
12.6 Intervening conduct or event
PART 2.6-PROOF OF CRIMINAL RESPONSIBILITY
Division 13
13.1 Legal burden of proof-prosecution

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13.2 Standard of proof-prosecution
13.3 Evidential burden of proof-defence
13.4 Legal burden of proof-defence
13.5 Standard of proof-defence
13.6 Use of averments
DICTIONARY

CRIMINAL CODE ACT 1995 No. 12 of 1995 - LONG TITLE

An Act relating to the criminal law

CRIMINAL CODE ACT 1995 No. 12 of 1995 - SECT 1
Short title

1. This Act may be cited as the Criminal Code Act 1995.

(Minister's second reading speech made in-
Senate on 30 June 1994
House of Representatives on 1 March 1995)

CRIMINAL CODE ACT 1995 No. 12 of 1995 - SECT 2
Commencement

2.(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.


(2) If this Act does not commence under subsection (1) within the period of 5 years beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

CRIMINAL CODE ACT 1995 No. 12 of 1995 - SECT 3
The Criminal Code

3.(1) The Schedule has effect as a law of the Commonwealth.


(2) The Schedule may be cited as the Criminal Code.

CRIMINAL CODE ACT 1995 No. 12 of 1995 - SECT 4
Definitions

4.(1) Expressions used in the Code (or in a particular provision of the Code) that are defined in the Dictionary at the end of the Code have the meanings given to them in the Dictionary.


(2) Definitions in the Code of expressions used in the Code apply to its construction except insofar as the context or subject matter otherwise indicates or requires.

CRIMINAL CODE ACT 1995 No. 12 of 1995 - SCHEDULE

SCHEDULE
THE CRIMINAL CODE
CHAPTER 1-CODIFICATION
Division 1
Codification
1.1 The only offences against laws of the Commonwealth are those offences
created by, or under the authority of, this Code or any other Act.
Note: Under subsection 38(1) of the Acts Interpretation Act 1901, "Act"
means an Act passed by the Parliament of the Commonwealth.
CHAPTER 2-GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY
PART 2.1-PURPOSE AND APPLICATION
Division 2
Purpose
2.1 The purpose of this Chapter is to codify the general principles of
criminal responsibility under laws of the Commonwealth. It contains all
the general principles of criminal responsibility that apply to any
offence, irrespective of how the offence is created.
Application
2.2(1) This Chapter applies to all offences against this Code.
(2) On and after the day occurring 5 years after the day on which the
Criminal Code Act 1995 receives the Royal Assent, this Chapter applies to
all other offences.
(3) Section 11.6 applies to all offences.
PART 2.2-THE ELEMENTS OF AN OFFENCE
Division 3-General
Elements
3.1(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 one or more physical elements.
(3) The law that creates the offence may provide different fault elements
for different physical elements.
Establishing guilt in respect of offences
3.2 In order for a person to be found guilty of committing an offence the
following must be proved:
(a) the existence of such physical elements as are, under the law
creating the offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault element
is required, one of the fault elements for the physical element.
Note: See Part 2.6 on proof of criminal responsibility.
Division 4-Physical elements
Physical elements
4.1(1) A physical element of an offence may be:
(a) conduct; or

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(b) a circumstance in which conduct occurs; or
(c) a result of conduct.
(2) In this Code:
"conduct" means an act, an omission to perform an act or a state of
affairs.
Voluntariness
4.2(1) Conduct can only be a physical element if it is voluntary.
(2) Conduct is only voluntary 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 only voluntary if the act omitted is
one which the person is capable of performing.
(5) If the conduct constituting an offence consists only of a state of
affairs, the state of affairs is only voluntary if it is one over which the
person is capable of exercising control.
(6) Evidence of self-induced intoxication cannot be considered in
determining whether conduct is voluntary.
(7) Intoxication is self-induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency, accident,
reasonable mistake, duress or force.
Omissions
4.3 An omission to perform an act can only be a physical element if:
(a) the law creating the offence makes it so; 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 5-Fault elements
Fault elements
5.1(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 a particular
offence from specifying other fault elements for a physical element of that
offence.
Example: The fault element for the offence of judicial corruption under
section 32 of the Crimes Act 1914 is that the relevant conduct be carried
out "corruptly".
Intention
5.2(1) A person has intention with respect to conduct if he or she means
to engage in that conduct.
(2) A person has intention with respect to a circumstance if he or she
believes that it exists or will exist.
(3) A person has intention with respect to a result if he or she means to
bring it about or is aware that it will occur in the ordinary course of
events.
Knowledge
5.3 A person has knowledge of a circumstance or a result if he or she is
aware that it exists or will exist in the ordinary course of events.
Recklessness
5.4(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists
or will exist; and
(b) having regard to the circumstances known to him or her, it is
unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur;
and
(b) having regard to the circumstances known to him or her, it is
unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an
offence, proof of intention, knowledge or recklessness will satisfy that
fault element.
Negligence
5.5 A person is negligent with respect to a physical element of an
offence if his or her conduct 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;
that the conduct merits criminal punishment for the offence.
Offences that do not specify fault elements
5.6(1) If the law creating the offence does not specify a fault element
for a physical element of an offence that consists only of conduct,
intention is the fault element for that physical element.
(2) If the law creating the offence does not specify a fault element for
a physical element of an offence that consists of a circumstance or a

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result, recklessness is the fault element for that physical element.
Note: Under subsection 5.4(4), recklessness can be established by proving
intention, knowledge or recklessness.
Division 6-Cases where fault elements are not required
Strict liability
6.1(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 9.2 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 9.2 is available in
relation to that physical element.
(3) The existence of strict liability does not make any other defence
unavailable.
Absolute liability
6.2(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 9.2 is unavailable.
(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 9.2 is unavailable
in relation to that physical element.
(3) The existence of absolute liability does not make any other defence
unavailable.

PART 2.3-CIRCUMSTANCES IN WHICH THERE IS NO CRIMINAL RESPONSIBILITY
Note: This Part sets out defences that are generally available. Defences
that apply to a more limited class of offences are dealt with elsewhere in
this Code and in other laws.
Division 7-Circumstances involving lack of capacity
Children under 10
7.1 A child under 10 years old is not criminally responsible for an
offence.
Children over 10 but under 14
7.2(1) A child aged 10 years or more but under 14 years old can only be
criminally responsible for an offence if the child knows that his or her
conduct is wrong.
(2) The question whether a child knows that his or her conduct is wrong
is one of fact. The burden of proving this is on the prosecution.
Mental impairment
7.3(1) A person is not criminally responsible for an offence if, at the
time of carrying out the conduct constituting the offence, the person was
suffering from a mental impairment that had the effect that:
(a) the person did not know the nature and quality of the conduct;
or
(b) the person did not know that the conduct was wrong (that is, the
person could not reason with a moderate degree of sense and composure about
whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.
(2) The question whether the person was suffering from a mental
impairment is one of fact.
(3) A person is presumed not to have been suffering from such a mental
impairment.
The presumption is only displaced if it is proved on the balance of
probabilities (by the prosecution or the defence) that the person was
suffering from such a mental impairment.
(4) The prosecution can only rely on this section if the court gives
leave.
(5) The tribunal of fact must return a special verdict that a person is
not guilty of an offence because of mental impairment if and only if it is
satisfied that the person is not criminally responsible for the offence
only because of a mental impairment.
(6) A person cannot rely on a mental impairment to deny voluntariness or
the existence of a fault element but may rely on this section to deny
criminal responsibility.
(7) If the tribunal of fact is satisfied that a person carried out
conduct as a result of a delusion caused by a mental impairment, the
delusion cannot otherwise be relied on as a defence.
(8) In this section:
"mental impairment" includes senility, intellectual disability, mental
illness, brain damage and severe personality disorder.
(9) The reference in subsection (8) to mental illness is a reference to
an underlying pathological infirmity of the mind, whether of long or short
duration and whether permanent or temporary, but does not include a
condition that results from the reaction of a healthy mind to extraordinary

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external stimuli. However, such a condition may be evidence of a mental
illness if it involves some abnormality and is prone to recur.
Division 8-Intoxication
Definition-self-induced intoxication
8.1 For the purposes of this Division, intoxication is self-induced
unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency, accident,
reasonable mistake, duress or force.
Intoxication (offences involving basic intent)
8.2(1) Evidence of self-induced intoxication cannot be considered in
determining whether a fault element of basic intent existed.
(2) A fault element of basic intent is a fault element of intention for a
physical element that consists only of conduct.
Note: A fault element of intention with respect to a circumstance or with
respect to a result is not a fault element of basic intent.
(3) This section does not prevent evidence of self-induced intoxication
being taken into consideration in determining whether conduct was
accidental.
(4) This section does not prevent evidence of self-induced intoxication
being taken into consideration in determining whether a person had a
mistaken belief about facts if the person had considered whether or not the
facts existed.
(5) A person may be regarded as having considered whether or not facts
existed if:
(a) he or she had considered, on a previous occasion, whether those facts
existed in circumstances surrounding that occasion; and
(b) he or she honestly and reasonably believed that the circumstances
surrounding the present occasion were the same, or substantially the same,
as those surrounding the previous occasion.
Intoxication (negligence as fault element)
8.3(1) If negligence is a fault element for a particular physical element
of an offence, in determining whether that fault element existed in
relation to a person who is intoxicated, regard must be had to the standard
of a reasonable person who is not intoxicated.
(2) However, if intoxication is not self-induced, regard must be had to
the standard of a reasonable person intoxicated to the same extent as the
person concerned.
Intoxication (relevance to defences)
8.4(1) If any part of a defence is based on actual knowledge or belief,
evidence of intoxication may be considered in determining whether that
knowledge or belief existed.
(2) If any part of a defence is based on reasonable belief, in
determining whether that reasonable belief existed, regard must be had to
the standard of a reasonable person who is not intoxicated.
(3) If a person's intoxication is not self-induced, in determining
whether any part of a defence based on reasonable belief exists, regard
must be had to the standard of a reasonable person intoxicated to the same
extent as the person concerned.
(4) If, in relation to an offence:
(a) each physical element has a fault element of basic intent; and
(b) any part of a defence is based on actual knowledge or belief;
evidence of self-induced intoxication cannot be considered in determining
whether that knowledge or belief existed.
(5) A fault element of basic intent is a fault element of intention for a
physical element that consists only of conduct.
Note: A fault element of intention with respect to a circumstance or with
respect to a result is not a fault element of basic intent.
Involuntary intoxication
8.5 A person is not criminally responsible for an offence if the person's
conduct constituting the offence was as a result of intoxication that was
not self-induced.
Division 9-Circumstances involving mistake or ignorance
Mistake or ignorance of fact (fault elements other than negligence)
9.1(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 that mistaken belief or ignorance negates any
fault element applying to that physical element.
(2) In determining 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.
Mistake of fact (strict liability)
9.2(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 is under a
mistaken but reasonable belief about those facts; and

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(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) he or she had considered, on a previous occasion, whether those
facts existed in the circumstances surrounding that occasion; and
(b) he or she 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 6.2 prevents this section applying in situations of absolute
liability.
Mistake or ignorance of statute law
9.3(1) A person can be criminally responsible for an offence even if, at
the time of the conduct constituting the offence, he or she is mistaken
about, or ignorant of, the existence or content of an Act that directly or
indirectly creates the offence or directly or indirectly affects the scope
or operation of the offence.
(2) Subsection (1) does not apply, and the person is not criminally
responsible for the offence in those circumstances, if:
(a) the Act is expressly or impliedly to the contrary effect; or
(b) the ignorance or mistake negates a fault element that applies
to a physical element of the offence.
Mistake or ignorance of subordinate legislation
9.4(1) A person can be criminally responsible for an offence even if, at
the time of the conduct constituting the offence, he or she is mistaken
about, or ignorant of, the existence or content of the subordinate
legislation that directly or indirectly creates the offence or directly or
indirectly affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and the person is not criminally
responsible for the offence in those circumstances, if:
(a) the subordinate legislation is expressly or impliedly to the
contrary effect; or
(b) the ignorance or mistake negates a fault element that applies
to a physical element of the offence; or
(c) at the time of the conduct, copies of the subordinate legislation
have not been made available to the public or to persons likely to be
affected by it, and the person could not be aware of its content even if he
or she exercised due diligence.
(3) In this section:
"available" includes available by sale;
"subordinate legislation" means an instrument of a legislative character
made directly or indirectly under an Act, or in force directly or
indirectly under an Act.
Claim of right
9.5(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 that 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 the proprietary or possessory right that
he or she mistakenly believes to exist.
(3) This section does not negate criminal responsibility for an offence
relating to the use of force against a person.
Division 10-Circumstances involving external factors
Intervening conduct or event
10.1 A person is not criminally responsible for an offence that has a
physical element to which absolute liability or strict liability applies
if:
(a) the physical element is brought about by another person over whom the
person has no control or by a non-human act or event over which the person
has no control; and
(b) the person could not reasonably be expected to guard against the
bringing about of that physical element.
Duress
10.2(1) A person is not criminally responsible for an offence if he or
she carries out the conduct constituting the offence under duress.
(2) A person carries out conduct under duress if and only if he or she
reasonably believes that:
(a) a threat has been made that will be carried out unless an offence
is committed; and
(b) there is no reasonable way that the threat can be rendered
ineffective;
and

(c) the conduct is a reasonable response to the threat.
(3) This section does not apply if the threat is made by or on behalf of
a person with whom the person under duress is voluntarily associating for
the purpose of carrying out conduct of the kind actually carried out.
Sudden or extraordinary emergency

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10.3(1) A person is not criminally responsible for an offence if he or
she carries out the conduct constituting the offence in response to
circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the
conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with
the emergency; and
(c) the conduct is a reasonable response to the emergency.
Self-defence
10.4(1) A person is not criminally responsible for an offence if he or
she carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if he or she
believes the conduct is necessary:
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful imprisonment of himself
or herself or another person; or
(c) to protect property from unlawful appropriation, destruction,
damage or interference; or
(d) to prevent criminal trespass to any land or premises; or
(e) to remove from any land or premises a person who is committing
criminal trespass;
and the conduct is a reasonable response in the circumstances as he or she
perceives them.
(3) This section does not apply if the person uses force that involves
the intentional infliction of death or really serious injury:
(a) to protect property; or
(b) to prevent criminal trespass; or
(c) to remove a person who is committing criminal trespass.
(4) This section does not apply if:
(a) the person is responding to lawful conduct; and
(b) he or she knew that the conduct was lawful.
However, conduct is not lawful merely because the person carrying it out is
not criminally responsible for it.
PART 2.4-EXTENSIONS OF CRIMINAL RESPONSIBILITY
Division 11
Attempt
11.1(1) A person who attempts to commit an offence is guilty of the
offence of attempting to commit that offence and is punishable as if the
offence attempted had been committed.
(2) For the person to be guilty, the person's conduct must be more than
merely preparatory to the commission of the offence. The question whether
conduct is more than merely preparatory to the commission of the offence is
one of fact.
(3) For the offence of attempting to commit an offence, intention and
knowledge are fault elements in relation to each physical element of the
offence attempted.
Note: Under section 3.2, only one of the fault elements of intention or
knowledge would need to be established in respect of each physical element
of the offence attempted.
(4) A person may be found guilty even if:
(a) committing the offence attempted is impossible; or
(b) the person actually committed the offence attempted.
(5) A person who is found guilty of attempting to commit an offence
cannot be subsequently charged with the completed offence.
(6) Any defences, procedures, limitations or qualifying provisions that
apply to an offence apply also to the offence of attempting to commit that
offence.
(7) It is not an offence to attempt to commit an offence against section
11.2 (complicity and common purpose) or section 11.5 (conspiracy).
Complicity and common purpose
11.2(1) A person who aids, abets, counsels or procures the commission of
an offence by another person is taken to have committed that offence and is
punishable accordingly.
(2) For the person to be guilty:
(a) the person's conduct must have in fact aided, abetted, counselled
or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3) For the person to be guilty, the person must have intended that:
(a) his or her conduct would aid, abet, counsel or procure the commission
of any offence (including its fault elements) of the type the other person
committed; or
(b) his or her conduct would aid, abet, counsel or procure the commission
of an offence and have been reckless about the commission of the offence
(including its fault elements) that the other person in fact committed.
(4) A person cannot be found guilty of aiding, abetting, counselling or
procuring the commission of an offence if, before the offence was
committed, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent the commission of the offence.

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(5) A person may be found guilty of aiding, abetting, counselling or
procuring the commission of an offence even if the principal offender has
not been prosecuted or has not been found guilty.
Innocent agency
11.3 A person who:
(a) has, in relation to each physical element of an offence, a fault
element applicable to that physical element; and
(b) procures conduct of another person that (whether or not together
with conduct of the procurer) would have constituted an offence on the part
of the procurer if the procurer had engaged in it;
is taken to have committed that offence and is punishable accordingly.
Incitement
11.4(1) A person who urges the commission of an offence is guilty of the
offence of incitement.
(2) For the person to be guilty, the person must intend that the offence
incited be committed.
(3) A person may be found guilty even if committing the offence incited
is impossible.
(4) Any defences, procedures, limitations or qualifying provisions that
apply to an offence apply also to the offence of incitement in respect of
that offence.
(5) It is not an offence to incite the commission of an offence against
section 11.1 (attempt), this section or section 11.5 (conspiracy).
Penalty:
(a) if the offence incited is punishable by life imprisonment-
imprisonment for 10 years; or
(b) if the offence incited is punishable by imprisonment for 14 years
or more, but is not punishable by life imprisonment-imprisonment for 7
years;
or
(c) if the offence incited is punishable by imprisonment for 10 years
or more, but is not punishable by imprisonment for 14 years or
more-imprisonment for 5 years; or
(d) if the offence is otherwise punishable by imprisonment - imprisonment
for 3 years or for the maximum term of imprisonment for the offence
incited, whichever is the lesser; or
(e) if the offence incited is not punishable by imprisonment-the
number of penalty units equal to the maximum number of penalty units
applicable to the offence incited.
Note: Under section 4D of the Crimes Act 1914, these penalties are only
maximum penalties. Subsection 4B(2) of that Act allows a court to impose an
appropriate fine instead of, or in addition to, a term of imprisonment. If
a body corporate is convicted of the offence, subsection 4B(3) of that Act
allows a court to impose a fine of an amount not greater than
5 times the maximum fine that the court could impose on an individual
convicted of the same offence. Penalty units are defined in section 4AA of
that Act.

Conspiracy
11.5(1) A person who conspires with another person to commit an offence
punishable by imprisonment for more than 12 months, or by a fine of 200
penalty units or more, is guilty of the offence of conspiracy to commit
that offence and is punishable as if the offence to which the conspiracy
relates had been committed.
Note: Penalty units are defined in section 4AA of the Crimes Act 1914.
(2) For the person to be guilty:
(a) the person must have entered into an agreement with one or more
other persons; and
(b) the person and at least one other party to the agreement must
have intended that an offence would be committed pursuant to the agreement;
and
(c) the person or at least one other party to the agreement must
have committed an overt act pursuant to the agreement.
(3) A person may be found guilty of conspiracy to commit an offence even
if:
(a) committing the offence is impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is at least one of the following:
(i) a person who is not criminally responsible;
(ii) a person for whose benefit or protection the offence exists;
or
(d) subject to paragraph (4)(a), all other parties to the agreement
have been acquitted of the conspiracy.
(4) A person cannot be found guilty of conspiracy to commit an offence
if:
(a) all other parties to the agreement have been acquitted of the
conspiracy and a finding of guilt would be inconsistent with their
acquittal;
or
(b) he or she is a person for whose benefit or protection the offence
exists.

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(5) A person cannot be found guilty of conspiracy to commit an offence
if, before the commission of an overt act pursuant to the agreement, the
person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the commission of the offence.
(6) A court may dismiss a charge of conspiracy if it thinks that the
interests of justice require it to do so.
(7) Any defences, procedures, limitations or qualifying provisions that
apply to an offence apply also to the offence of conspiracy to commit that
offence.
(8) Proceedings for an offence of conspiracy must not be commenced
without the consent of the Director of Public Prosecutions. However, a
person may be arrested for, charged with, or remanded in custody or on bail
in connection with, an offence of conspiracy before the necessary consent
has been given.
References in Acts to offences
11.6(1) A reference in an Act to an offence against an Act (including
this Code) includes a reference to an offence against section 11.1
(attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates
to such an offence.
(2) A reference in an Act (including this Code) to a particular offence
includes a reference to an offence against section 11.1 (attempt), 11.4
(incitement) or 11.5 (conspiracy) of this Code that relates to that
particular offence.
(3) Subsection (1) or (2) does not apply if an Act is expressly or
impliedly to the contrary effect.
Note: Sections 11.2 (complicity and common purpose) and 11.3 (innocent
agency) of this Code operate as extensions of principal offences and are
therefore not referred to in this section.
PART 2.5-CORPORATE CRIMINAL RESPONSIBILITY
Division 12
General principles
12.1(1) This Code applies to bodies corporate in the same way as it
applies to individuals. It so applies with such modifications as are set
out in this Part, and with such other modifications as are made necessary
by the fact that criminal liability is being imposed on bodies corporate
rather than individuals.
(2) A body corporate may be found guilty of any offence, including one
punishable by imprisonment.
Note: Section 4B of the Crimes Act 1914 enables a fine to be imposed for
offences that only specify imprisonment as a penalty.
Physical elements
12.2 If a physical element of an offence is committed by an employee,
agent or officer of a body corporate acting within the actual or apparent
scope of his or her employment, or within his or her actual or apparent
authority, the physical element must also be attributed to the body
corporate.
Fault elements other than negligence
12.3(1) If intention, knowledge or recklessness is a fault element in
relation to a physical element of an offence, that fault element must be
attributed to a body corporate that expressly, tacitly or impliedly
authorised or permitted the commission of the offence.
(2) The means by which such an authorisation or permission may be
established include:
(a) proving that the body corporate's board of directors intentionally,
knowingly or recklessly carried out the relevant conduct, or expressly,
tacitly or impliedly authorised or permitted the commission of the offence;
or
(b) proving that a high managerial agent of the body corporate
intentionally, knowingly or recklessly engaged in the relevant conduct, or
expressly, tacitly or impliedly authorised or permitted the commission of
the offence; or
(c) proving that a corporate culture existed within the body corporate
that directed, encouraged, tolerated or led to non-compliance with the
relevant provision; or
(d) proving that the body corporate failed to create and maintain
a corporate culture that required compliance with the relevant provision.
(3) Paragraph (2)(b) does not apply if the body corporate proves that it
exercised due diligence to prevent the conduct, or the authorisation or
permission.
(4) Factors relevant to the application of paragraph (2)(c) or (d)
include:
(a) whether authority to commit an offence of the same or a similar
character had been given by a high managerial agent of the body corporate;
and
(b) whether the employee, agent or officer of the body corporate
who committed the offence believed on reasonable grounds, or entertained a
reasonable expectation, that a high managerial agent of the body corporate
would have authorised or permitted the commission of the offence.
(5) If recklessness is not a fault element in relation to a physical

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element of an offence, subsection (2) does not enable the fault element to
be proved by proving that the board of directors, or a high managerial
agent, of the body corporate recklessly engaged in the conduct or
recklessly authorised or permitted the commission of the offence.
(6) In this section:
"board of directors" means the body (by whatever name called) exercising
the executive authority of the body corporate;
"corporate culture" means an attitude, policy, rule, course of conduct or
practice existing within the body corporate generally or in the part of the
body corporate in which the relevant activities takes place;
"high managerial agent" means an employee, agent or officer of the body
corporate with duties of such responsibility that his or her conduct may
fairly be assumed to represent the body corporate's policy.
Negligence
12.4(1) The test of negligence for a body corporate is that set out in
section 5.5.
(2) If:
(a) negligence is a fault element in relation to a physical element
of an offence; and
(b) no individual employee, agent or officer of the body corporate
has that fault element;
that fault element may exist on the part of the body corporate if the body
corporate's conduct is negligent when viewed as a whole (that is, by
aggregating the conduct of any number of its employees, agents or
officers).
(3) Negligence may be evidenced by the fact that the prohibited conduct
was substantially attributable to:
(a) inadequate corporate management, control or supervision of the
conduct of one or more of its employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant
information to relevant persons in the body corporate.
Mistake of fact (strict liability)
12.5(1) A body corporate can only rely on section 9.2 (mistake of fact
(strict liability)) in respect of conduct that would, apart from this
section, constitute an offence on its part if:
(a) the employee, agent or officer of the body corporate who carried
out the conduct was under a mistaken but reasonable belief about facts
that, had they existed, would have meant that the conduct would not have
constituted an offence; and
(b) the body corporate proves that it exercised due diligence to prevent
the conduct.
(2) A failure to exercise due diligence may be evidenced by the fact that
the prohibited conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of the
conduct of one or more of its employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant
information to relevant persons in the body corporate.
Intervening conduct or event
12.6 A body corporate cannot rely on section 10.1 (intervening conduct or
event) in respect of a physical element of an offence brought about by
another person if the other person is an employee, agent or officer of the
body corporate.
PART 2.6-PROOF OF CRIMINAL RESPONSIBILITY
Division 13
Legal burden of proof-prosecution
13.1(1) The prosecution bears a legal burden of proving every element of
an offence relevant to the guilt of the person charged.
Note: See section 3.2 on what elements are relevant to a person's guilt.
(2) The prosecution also bears a legal burden of disproving any matter in
relation to which the defendant has discharged an evidential burden of
proof imposed on the defendant.
(3) In this Code:
"legal burden", in relation to a matter, means the burden of proving the
existence of the matter.
Standard of proof-prosecution
13.2(1) A legal burden of proof on the prosecution must be discharged
beyond reasonable doubt.
(2) Subsection (1) does not apply if the law creating the offence
specifies a different standard of proof.
Evidential burden of proof-defence
13.3(1) Subject to section 13.4, 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 (other than section 7.3) bears an evidential burden
in relation to that matter.
(3) A defendant who wishes to rely on any exception, exemption, excuse,
qualification or justification provided by the law creating an offence
bears an evidential burden in relation to that matter. The exception,
exemption, excuse, qualification or justification need not accompany the
description of the offence.
(4) The defendant no longer bears the evidential burden in relation to a
matter if evidence sufficient to discharge the burden is adduced by the
prosecution or by the court.
(5) The question whether an evidential burden has been discharged is one
of law.
(6) In this Code:
"evidential burden", in relation to a matter, means the burden of
adducing or pointing to evidence that suggests a reasonable possibility
that the matter exists or does not exist.
Legal burden of proof-defence
13.4 A burden of proof that a law imposes on the defendant is a legal
burden if and only if the law expressly:
(a) specifies 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.
Standard of proof-defence
13.5 A legal burden of proof on the defendant must be discharged on the
balance of probabilities.
Use of averments
13.6 A law that allows the prosecution to make an averment is taken not
to 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.
DICTIONARY
conduct is defined in subsection 4.1(2).
employee includes a servant.
evidential burden is defined in subsection 13.3(6).
intention has the meaning given in section 5.2.
knowledge has the meaning given in section 5.3.
law means a law of the Commonwealth, and includes this Code.
legal burden is defined in subsection 13.1(3).
negligence has the meaning given in section 5.5.
offence means an offence against a law of the Commonwealth.
recklessness has the meaning given in section 5.4.