A Practical Guide to Dealing with Commonwealth Offences

Introduction

Criminal offences feature in numerous Commonwealth Acts and Regulations and cover many subject areas including aviation, corporations, taxation, customs, social security, money laundering and financial transactions, copyright and trade marks, fisheries, environmental law and offences relating to marriage.

 As a general rule, the Commonwealth Director of Public Prosecutions (CDPP) prosecutes Commonwealth offences.

The main offences prosecuted by the CDPP involve drug importation, offences against corporate law, fraud on the Commonwealth in its various guises (including tax fraud, medifraud and social security fraud), money laundering, people smuggling, sexual servitude and terrorism.

The Crimes Act 1914 deals, to the exclusion of state and territory law, with many evidentiary and procedural matters. For example, Part 1C governs the investigation of Commonwealth offences, providing for the obligations of investigating officials, investigation periods etc. Forensic procedures are dealt with by Part 1D and controlled operations by Part 1AB. Other sections refer to penalty units and calculation of penalties, whether matters are summary or indictable.

Importantly, all Commonwealth offenders are sentenced pursuant to Part 1B which sets out general sentencing principles and makes extensive provision in relation to the sentencing process and sentences that may be imposed.

On 1 January 1997, the Criminal Code was proclaimed and commenced operation. Its application was staged over a considerable period — initially it applied only to those acts which specifically provided for its application. It was not until 24 May 2001, when offences relating to theft, fraud, making false statements, forgery, bribery and related offences were inserted that it had a much broader application.

On 15 December 2001, the Criminal Code was made applicable to all Commonwealth offences and from this time it was fully operational. It applies across Australia, without variation, in relation to federal offences.

Application of State Laws to Commonwealth Offences 

Commonwealth Prosecutions in State Courts

Except for a limited class of offences which are prosecuted in the Federal Court all prosecutions for Commonwealth offences are conducted in State or Territory Courts using the criminal procedure of that State or Territory.

Section 68 of the Judiciary Act 1903 provides:

It is now settled that s 39(2) and s 68(2) of the Judiciary Act both operate to confer Federal jurisdiction in criminal matters on State and Territory Courts1.

It is also settled that by virtue of s 68(2) provisions in State Laws conferring a right of appeal on State Attorneys General in respect of State matters also confers an analogous right of appeal on the Commonwealth Attorney General in respect of Commonwealth matters2. However, the CDPP has no power to appeal against a sentence imposed in respect of a State offence which he has prosecuted3.

Choice of venue in Commonwealth Criminal Matters

(i)     Forum of trials

Section 80 of the Constitution requires that the trial on indictment of any offence committed within the State be held within that State. However, it does not prevent a person committed for sentence from entering a plea and being sentenced in Queensland in respect of an offence committed in another State.

An offence that is dealt with summarily pursuant to the provisions such as s 4J Crimes Act is not an indictable offence for the purposes of s 80 of the Constitution even though it is described as an indictable offence in the legislation which creates it4.

 (ii)    Summary offences and Sentences

There is no constitutional requirement that a summary hearing or sentence proceedings in any court upon a plea of guilty, summary or indictable, be held in the State in which the offence was committed.

The effect of sub-sections (5), (5A), (5B), (7), (8), (9), and (10) of s 68 of the Judiciary Act is that such a proceeding may be conducted in any State or Territory subject to a discretion in the court not to hear the matter.

Elements of Commonwealth Offences 

Chapter 2 is central to the Criminal Code. Its purpose is to codify the general principles of criminal responsibility in respect of the laws of the Commonwealth. It contains all the general principles that apply to all criminal offences against the laws of the Commonwealth.

Chapter 2 sets out the elements of offences and what is required to establish guilt in respect of offences, including the burden of proof. It sets out the circumstances in which there is no criminal responsibility, as well as circumstances where criminal responsibility may be extended. Provision is made with respect to the geographical jurisdiction of Commonwealth offences. Special provision is made with respect to corporate criminal responsibility.

Elements of an offence

An offence is defined by the Criminal Code to consist of physical elements and fault elements.5

Physical elements refer to the external elements of the crime i.e. the actus reus. Fault elements refer to the state of mind or fault of the accused which must be proven for guilt to attach – mens rea.

In order for a person to be found guilty of committing an offence the relevant physical and accompanying fault elements contained in the particular offence must be established.6 It is therefore necessary to ‘break down’ an offence to reveal the physical and fault elements that must be established in order to make out the offence.

A fault element will attach to each physical element of an offence unless the law creating the offence expressly provides for a particular fault element.7 Where a law creating an offence does not specify the fault element attaching to a physical element of an offence, and the provision does not expressly state that strict or absolute liability applies to the physical element, then a ‘default’ fault element will supply the relevant fault element.8 The Criminal Code sets the ‘default’ fault elements in s 5.6.

There may be different fault elements for the different physical elements.9

Physical elements

A physical element for an offence may be:

• conduct – defined as an act, omission to perform an act or a state of affairs (e.g. being in possession of something);
• a circumstance in which conduct occurs (e.g. where a person harmed is a Commonwealth public official); or
• a result of conduct (e.g. cause harm to a Commonwealth public official).10

Fault elements

The fault elements for an offence may be:

• intention;
• knowledge;
• recklessness;
• negligence; or
• another fault element specified by particular legislation.11

Intention and negligence can be the fault element applicable to any physical element. Knowledge and recklessness can only be fault elements applicable to a physical element consisting of a circumstance or a result.

The meaning of the four fault elements (intention, knowledge, recklessness and negligence) depends on the physical element to which they are being applied.

Conduct — a person will have intention with respect to conduct if he or she means to engage in that conduct.12 Circumstance — a person will have intention with respect to a circumstance if he or she believes that it exists or will exist.13

Result — 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.14

Default fault elements

Where the law creating an offence does not specify the fault element relevant to the physical element concerned then s 5.6 supplies that fault element depending on whether the physical element concerned is conduct, a circumstance or a result. It does so in the following way:

• conduct: the default fault element is intention;
• circumstance or result: the default fault element is recklessness

Proof of intention, knowledge or recklessness will satisfy the fault element of recklessness.15

Strict and absolute liability

If an offence is one of strict liability there are no fault elements for any of the physical elements of the offence but the defence of mistaken but reasonable belief is available.16

If the offence is one of absolute liability, there are no fault elements for any of the physical elements of the offence, and there is no defence of mistaken but reasonable belief available.17

Proof Of Criminal Responsibility — Part 2.6

Section 13.1 provides that the prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged. 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.

A legal burden in relation to a matter, means the burden of proving the existence of the matter. A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.18

A defendant who wishes to deny responsibility by relying on any defence (other than in relation to mental impairment), bears an evidential burden.19

An evidential burden means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.20 Significantly, a 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 the court.21

Similarly, 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.22

In some instances a legal burden of proof may be placed on a defendant to establish a matter. This must be done expressly. The standard of proof on a defendant is on the balance of probabilities. 23

Commonwealth Sentencing Regime 

The Crimes Act 1914 contains the sentencing options in respect of federal offenders. A federal offender is defined by the Crimes Act as a person convicted of an offence against Commonwealth law.24 State sentencing options apply only to the extent that they are expressed to be applicable by virtue of a specific provision of the Crimes Act or its Regulations. Sections 68(1) and 79 of the Judiciary Act do not have the effect of making State sentencing options available to federal offenders25.

General Principles

A court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence: s 16A(1). An inclusive list of matters which must be taken into account where relevant and known to the court is set out in s 16A(2).

Although not referred to in s.16A(2) general deterrence is to be taken into account26.

A guilty plea must be taken into account under s.16A(2)(g)27.

Bond without Conviction: s 19B

This is the only section which does not necessitate the recording of a conviction.  The relevant factors to be considered are set out in s.19B(1)(b):

An offender can be discharged completely or discharged on a recognizance: s.19B(1)(d). The conditions of the recognizance may include good behaviour for a period of up to three years, restitution/reparation, probation for up to 2 years or any other condition that the court sees fit to impose.

Bond with conviction: s 20

The conditions provided for under this section include good behaviour for a period of up to five years, restitution/reparation, pecuniary penalties, probation for up to 2 years, or any other condition that the court sees fit to impose.

Community servicee may not be imposed as a condition of a bond under s 20 or s 19B28.

Fines

Before imposing a fine a court must take into account the financial circumstances of the offender: s.16C(1).

Section 4AA currently defines a “penalty unit” as $110.

Section 15A adopts the State law with respect to the enforcement of fines.

Probation

Probation can be ordered only as a condition of a bond imposed pursuant to either s 19B or s 20(1).

Intensive Correction Order

This option is available to be used as an “additional sentencing alternative” which is “picked up” by s 20AB.

Community Service

A Queensland court may impose a community service order upon a federal offender pursuant to s 20AB.

Imprisonment

Imprisonment is not to be imposed unless, after having taken into account such matters as are relevant in s 16A, no other sentence is appropriate in all the circumstances of the case29.

It is possible to fully or partly a sentence of imprisonment by making a recognizance release order under s 20(1)(b).

Jane Bentley

CORAL COAST CHAMBERS

Footnotes

1. Adams v Cleeve (1935) 53 CLR 185, R v Bull (1974) 131 CLR 203
2. Peel v R (1971) 125 CLR 447
3. Byrnes v R (1999) 164 ALR 520
4. R v Archdall (1928) CLR 128
5. Section 3.1(1). However, the law that creates the offence may provide that there is no fault element for one or more physical elements. The law may provide different fault elements for different physical elements — s3.2(2) and (3).
6. Section 3.2.
7. This is the practical effect of the combination of s3.1, 5.6, 6.1 and 6.2.
8. Sections 6.1(2), 6.2(2) and 5.6.
9. Section 3.1(3).
10. Sections 4.1(1) and (2).
11. Section 5.1(1).
12. S5.2(1).
13. S5.2(2).
14. S5.2(3).
15. S5.4(4).
16. s6.1(1)(a) and s9.2(1).
17. S6.2.
18. S13.2.
19. S13.3.
20. S13.3(6)
21. S13.3(4)
22. S13.3.(3)
23. S13.4 and s13.5
24. See s16(1) Crimes Act 1914.
25. see All Cars Ltd v McCann (1945) 19 ALJ 129, R v Mirkovic [1966] VR 371
26. DPP v El Karhani (1990) 97 ALR 373, Oancea (1990) 51 A Crim R 141 and R v Carroll  [1991] 2 VR 509
27. cf s.13 Penalties and Sentences Act 
28. R v Shambayati (1999) 105 A Crim R 373
29. s 17A(1)