¹ This paper is an abridged version of Ian Leader-Elliott, ‘Cracking the Code: Emerging Stress Points in Chapter 2 Jurisprudence’ (Paper presented at the Federal Criminal Justice Forum, Canberra, 29 September 2008) <http://papers.ssrn.com/sol3/JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=1202982>. I owe thanks to many people for their advice and, in particular, to the anonymous referees for this journal whose suggestions, for the most part, have been gratefully accepted.

² (2008) 236 CLR 1.

³ (2007) 175 A Crim R 108; Chief Justice James Jacob Spigelman, ‘Statutory Interpretation and Human Rights'; ‘The Application of Quasi Constitutional Laws'; ‘Legitimate and Spurious Interpretation’ (Speeches delivered at the McPherson Lectures, Brisbane, 10 March 2009 – 13 March 2009) <http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speeches#CJ>.

⁴ R v Barlow (1997) 188 CLR 1.

⁵ (2007) 170 A Crim R 389.

⁶ Model Penal Code — Proposed Official Draft (American Law Institute, May 4, 1962).

⁷ Paul, Robinson and Markus, Dubber, ‘The American Model Penal Code: A Brief Overview’ (2007) 10 New Criminal Law Review 319, 340Google Scholar: ‘For almost half a century, the Model Penal Code has been the dominant force in American criminal code reform and a catalyst for American criminal law scholarship.'

⁸ See Matthew, Goode, ‘Constructing Criminal Law Reform and the Model Criminal Code’ (2002) 26 Criminal Law Journal 152Google Scholar; Ian, Leader-Elliott, ‘Elements of Liability in the Commonwealth Criminal Code’ (2002) 26 Criminal Law Journal 28Google Scholar; Matthew, Goode, ‘Codification of the Criminal Law?’ (2004) 28 Criminal Law Journal 226Google Scholar; Miriam, Gani, ‘Codifying the Criminal Law: Issues of Interpretation’ in Suzanne, Corcoran and Stephen, Bottomley (eds), Interpreting Statutes (2005) 197, 222Google Scholar; Ian, Leader-Elliott, ‘Benthamite Reflections on Codification of the General Principles of Criminal Liability: Towards the Panopticon’ (2006) 9 Buffalo Criminal Law Review 391Google Scholar; Simon, Bronitt and Miriam, Gani, ‘Criminal Codes in the 21^st Century: The Paradox of the Liberal Promise’ in Bernadette, McSherry, Alan, Norrie and Simon, Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Future of Criminal Law (2009) 235Google Scholar. Among texts specifically dealing with the Code, see Ian, Leader-Elliott, The Commonwealth Criminal Code: A Guide for Practitioners (2001)Google Scholar; Stephen, Odgers, Principles of Federal Criminal Law (2007)Google Scholar. Among general texts, Simon, Bronitt and Bernadette, McSherry, Principles of Criminal Law (2nd ed, 2005)Google Scholar, ch 3, ‘Principles of Criminal Responsibility’ is remarkable for the authors’ decision to adopt the conceptual vocabulary and structural framework of ch 2 of the Criminal Code, in place of common law ‘actus reus’ and ‘mens rea', as the basis for their text.

⁹ On ‘rational reconstruction', see Antony, Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (2007) 5–6Google Scholar.

¹⁰ See, eg, proposals for a defence based on official inducement resulting in mistake of law: A, Ashworth, ‘Testing Fidelity to Legal Values: Official Involvement and Criminal Justice’ in Stephen, Shute and Andrew, Simester (eds), Criminal Law Theory: Doctrines of the General Part (2002) 299Google Scholar. Discussed: Jeremy, Horder, Excusing Crime (2005) 270–6Google Scholar.

¹¹ See, eg, the specialised defence in ch 9, pt 9.1 Serious drug offences, 313.2 Defence—reasonable belief that conduct is justified or excused by or under a law. A model defence of this nature might be included within ch 2, for use as required by the legislature, when framing offences.

¹² Criminal Code (Cth) ss 5.6 Offences that do not specify fault elements, 6.1 Strict liability, 6.2 Absolute liability, 9.2 Mistake of fact (strict liability). See: He Kaw Teh v The Queen (1985) 157 CLR 523. But see CTM v The Queen (2008) 236 CLR 440, which revises some aspects of the common law doctrine of reasonable mistake. The implications of the latter decision for the common law will not be considered in this essay.

¹³ Mistake or ignorance do not cease to be relevant to the determination of fault when negligence is in issue. In that case, however, the enquiry will shift to consideration of what D should have known or realised.

¹⁴ See ch 2, pt 2.2, divs 5 Fault elements and 6 Cases where fault elements are not required.

¹⁵ Exceptions are possible in offences of dishonesty, if the exercise of the right can be characterised as dishonest: see R v Turner (No 2) [1971] 1 WLR 901.

¹⁶ See Leader-Elliott, above n 1, on the problems of ‘claim of right’ in ch 2 – General Principles of Criminal Responsibility.

¹⁷ R v Feely [1973] QB 530, 539: ‘[A] taking to which no moral obloquy can reasonably attach is not within the concept of stealing…'

¹⁸ James, Fitzjames Stephen, A General View of the Criminal Law of England (2nd ed, 1890) 59Google Scholar.

¹⁹ (1985) 157 CLR 523.

²⁰ Note, too, the absence of any attempt to codify common law rules or principles relating to the interpretation of codes. See Miriam, Gani, ‘Codifying the Criminal Law: Implications for Interpretation’ (2005) 29 Criminal Law Journal 264Google Scholar on the ‘irony’ of continuing reliance on common law rules in this respect.

²¹ There appears to have been an oversight on the part of the Legislature in relation to the scope of s 4 of the Criminal Code Act 1995. The definitions used in ch 2 should apply generally to all federal offences, whether or not they are to be found in the Criminal Code.

²² 2.2 Application. Compare the vitiation of the general principles of Sir Samuel Griffith's Queensland Criminal Code, that resulted from their subordination to the local particularities of the substantive offences: discussed, Ian, Leader-Elliott, ‘Elements of Liability in the Commonwealth Criminal Code’ (2002) 26 Criminal Law Journal, 28, 29–31Google Scholar.

²³ See especially the provisions that require specific provisions to displace default settings: ss 4.3 Omissions, 5.1 Fault elements, 5.6 Offences that do not specify fault elements, 6.1 Strict liability, 6.2 Absolute liability, 9.3 Mistake or ignorance of statute law, 9.4 Mistake or ignorance of subordinate legislation, 11.6 Reference in Acts to offences, 13.2 Standard of proof — prosecution, 13.4 Legal burden of proof – defence. See also div 14 Standard geographical jurisdiction.

²⁴ Section 4(2) Definitions. The provision is misleading insofar as it suggests that the rule is limited in its application to the interpretation of expressions in offences in the Code. It is evidently intended to apply to all Commonwealth offences, whether they occur in the Code or in other Commonwealth legislation.

²⁵ Attorney-General's Department, Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (December 2007) <http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_GuidetoFramingCommonwealthOffences,CivilPenaltiesandEnforcementPowers> at 1 August 2009. The current version of the Guide, dated December 2007, is an interim version pending publication of a revised version.

²⁶ Section 3.1 Elements.

²⁷ Section 4.1 Physical Elements.

²⁸ The Guide to Framing, above n 25, insists, in s 4.4 Fault elements, on the use of standard fault elements unless a legislative objective cannot be achieved by their use.

²⁹ Chapter 2 div 6 Cases where fault elements are not required.

³⁰ Model Penal Code — Proposed Official Draft (American Law Institute, 1962) s 1.13 General Definitions.

³¹ The absence of any distinction between material and non material elements has resulted in a regrettable departure from common law principles in ch 2, pt 2.4 Extensions of criminal responsibility. If liability for a physical element of an offence is strict or absolute, liability for attempt, complicity, incitement and conspiracy is also absolute, with respect to that element. Though the original reason for this departure from common law principles had to do with ‘jurisdictional’ elements, the imposition of strict and absolute liability in the inchoate offences is unlimited in its potential scope.

³² See, in particular, R v JS (2007) 175 A Crim R 108, 132–7.

³³ The terms ‘guilt’ and ‘not guilty’ are used consistently throughout the Code to distinguish between proof of the elements of the offence and failure to prove the elements: s 3.2 Establishing guilt in respect of offences, which makes no mention of defences, establishes Code usage from the outset. Compare the Model Penal Code (American Law Institute, 1962) which does not distinguish in this way between elements and defences: s 1.13 General Definitions, ‘element of an offense’ includes conduct, circumstances and results included in the definition of the offence and, in addition, conduct, circumstances or results ‘that [negative] an excuse or justification’ for the offence.

³⁴ Criminal Code (Cth) s 13.3(3).

³⁵ Reference to ‘liability', to mark the point at which the elements of the offence have been established, as distinct from ‘responsibility', when elements are established and defences excluded, would have been consistent with the usage in ss 6.1 Strict liability, 6.2 Absolute liability.

³⁶ Duff, above n 9, ch 1. Duff reverses the terms however. The defendant is responsible for an offence if the elements are established and liable for the offence unless the offence is justified or excused.

³⁷ See: Attorney-General's Department, above n 25, ch 4.

³⁸ Criminal Code (Cth) ch 2, pt 2.6 — Proof of criminal responsibility refers throughout to ‘matters’ to be proved.

³⁹ Criminal Code (Cth) s 13.3 Evidential burden of proof — defence.

⁴⁰ See, in particular, RA Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (1990).

⁴¹ See, eg, Criminal Code (Cth) s 100.1(3); Futures Industry Act 1986 (Cth) s 144; National Health Act 1953 (Cth) s 82WC (repealed). The more common practice, which is functionally equivalent to a defence of denial of intention, is to presume intention and require the offender to disprove intention. These provisions are a curious and unnecessary departure from the conventions of the Criminal Code (Cth) ch 2. See, eg: Criminal Code (Cth) div 305 Trafficking controlled drugs, 320.5 Presumption where trafficable quantities are involved; Atomic Energy Act 1953 (Cth) s 44 (repealed); Workplace Relations Act 1996 (Cth) s 298S (repealed). The difference is potentially important: if intention is presumed, it is a ‘fault element’ and s 5.2 Intention is potentially applicable. If intention is not presumed and absence of intention is a defence, the definition has no application.

⁴² See also Simon Bronitt and Miriam Gani, above n 8.

⁴³ The Criminal Code (Cth) is not remarkable in this respect. The distinction between elements and defences is equally open to legislative manipulation in the Model Penal Code (American Law Institute, 1962) s 1.12 and in The Law Commission for England and Wales, Criminal Law: Codification of the Criminal Law – A Report to the Law Commission, Law Com No 143 (1985), UK Draft Criminal Code Bill s 17. The principles that should govern the distinction are the subject of debate at the growing fringes of criminal law theory and quite beyond the possibility of codification. See RA Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (2007) and reviews by P, Westen, ‘Offences and Defences Again', (2008) 23 Oxford Journal of Legal Studies 563Google Scholar; Ian Leader-Elliott, ‘A Critical Reading of RA Duff, Answering for Crime’ (2009), Adelaide Law Review, forthcoming.

⁴⁴ Attorney-General's Department, above n 25. See also Kirby J in R v Tang (2008) 236 CLR 1, 44.

⁴⁵ Compare Model Penal Code (American Law Institute 1962) s 2.02. The presumptive fault elements apply to defences because absence of a defence counts as an ‘element’ of offences: s 1.13 ‘element', ‘material element'. Common law is arguably the same. See Glanville, Williams, ‘Offences and Defences’ (1982) 2 Legal Studies 233, 239–40Google Scholar. Williams, who was no friend to the distinction, remarks, at 244: ‘[T]here may be some reason of policy for treating defence elements differently from definitional elements; but if so the reason needs to be considered and stated.'

⁴⁶ Chief Justice John Jacob Spigelman, above n 3.

⁴⁷ See Luc, Wintgens, ‘Rationality in Legislation — Legal Theory as Legisprudence: An Introduction’ in Luc, Wintgens (ed), Legisprudence: A New Theoretical Approach to Legislation (2002), 1, 2Google Scholar: ‘Legisprudence has as its object legislation and regulation, making use of the theoretical tools and insights of legal theory. The latter predominantly deals with the question of the application of law by the judge. Legisprudence enlarges the field of study to include the creation of law by the legislator.’ See also Legisprudence, International Journal for the Study of Legislation, publication of which commenced in 2007.

⁴⁸ J, Gardner, ‘On the General Part of the Criminal Law’ in RA, Duff (ed), Philosophy and the Criminal Law (1998) 208–9Google Scholar (emphasis in original).

⁴⁹ Ibid 208.

⁵⁰ George, Fletcher, The Grammar of Criminal Law — Volume 1: Foundations (2007) 96Google Scholar.

⁵¹ See, eg, the Attorney-General's Department, above n 25, 23–4, 28–31.

⁵² See, in particular, the Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Application of Absolute and Strict Liability Offences in Commonwealth Legislation (2002).

⁵³ But see Bronitt and Gani, above n 8, 246–7, 252–4 who take a darker view of the process which they criticise as a ‘bureaucratisation of the law-making process’ at 246.

⁵⁴ Based on Ostrowski v Palmer (2004) 218 CLR 493. Discussed in Ian, Leader-Elliott, ‘Benthamite Reflections on Codification of the General Principles of Criminal Liability: Towards the Panopticon’ (2006) 9 Buffalo Criminal Law Review 391, 435–8Google Scholar. For a variation, in which the Court held that the captain of a fishing vessel made a mistake of fact, rather than law, as to the location of permitted fishing grounds, see Mei Ying Su v Australian Fisheries Management Authority (No 2) (2008) 251 ALR 135.

⁵⁵ Criminal Law Officers Committee (now Model Criminal Code Officers Committee), Report on the Model Criminal Code, Chapters 1 and 2: General Principles of Criminal Responsibility (1992) 55: ‘Although, strictly speaking, evidence of mistake is only one sort of evidence which may cast doubt on the presence of a fault element, the Committee thought that for the sake of clarity, the Code should state the matter explicitly. In part the Committee was influenced by the fact that the Code will speak to a wider audience than lawyers. Even among lawyers, the law of mistake has produced a good deal of confusion.’ See: R v Donaldson and Poumako (2009) 103 SASR 309.

⁵⁶ Discussion will be limited to consideration of s 9.3 Mistake or ignorance of statute law. The argument and discussion is equally applicable to s 9.4 Mistake or ignorance of subordinate legislation.

⁵⁷ The Law Commission for England and Wales, Criminal Law: Codification of the Criminal Law — A Report to the Law Commission, Law Com No 143 (1985), UK Draft Criminal Code Bill s 25.

⁵⁸ (2007) 175 A Crim R 108. Note that the report cites, incorrectly, the amended provision at 115. The amended provision, which is not retrospective in its effect, had no possible application to the case. The judgment of Spigelman CJ at 132–7 deals, correctly, with the original provision.

⁵⁹ The Law Commission for England and Wales, Criminal Law: Codification of the Criminal Law — A Report to the Law Commission, Law Com No 143 (1985), UK Draft Criminal Code Bill s 25(1).

⁶⁰ Criminal Code (Cth) ss 9.3 Mistake or ignorance of statute law and 9.4 Mistake or ignorance of subordinate legislation were amended by the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth). The amending provision, which does not have retrospective effect, applies from 24 February 2004.

⁶¹ Criminal Code (Cth) s 308.1 Possessing controlled drugs.

⁶² See, eg, the case of P v R (1986) 41 SASR 360. Discussed in Ian, Leader-Elliott, ‘Case and Comment: P’ (1987) 11 Criminal Law Journal 112Google Scholar. The case was the subject of inconclusive consideration in R v Taib; Ex parte Director of Public Prosecutions (Cth) (1998) 158 ALR 744.

⁶³ It is arguable that not all principles of criminal responsibility can be articulated in a statutory code. Section 8 of the Criminal Code Act 1924 (Tas) preserves common law defences unless inconsistent with the provisions of the Code. Or, in the alternative, it may be advisable to incorporate common law by reference as, for example, in Criminal Code (Cth) s 11.2 Complicity and common purpose, which imposes liability on a person who ‘aids, abets, counsels or procures the commission of an offence by another person’ without defining that portmanteau expression. See generally on the relationship between code and common law, Gani, ‘Codifying the Criminal Law: Implications for Interpretation', above n 20.

⁶⁴ See Kevin, J Heller, ‘Mistake of Legal Element, the Common Law, and Article 32 in the Rome Statute: A Critical Analysis’ (2008) 6 Journal of International Criminal Justice 419Google Scholar.

⁶⁵ (1836) 173 ER 203.

⁶⁶ Ibid. Fortunately, the defendant was acquitted: witnesses for the prosecution were actuated by spite and their accusations could not be sustained.

⁶⁷ In view of the manifest defects of s 9.3 Mistake or ignorance of statute law, it may seem pedantic to point out that the ‘express provision to the contrary in the Act’ to which sub-s (2) refers may not be found in the ‘Act’ to which sub-s (1) refers, but in another Commonwealth Act. The provision should extend to situations in which the defendant's criminal responsibility is the consequence of a conjunction of two or more Acts.

⁶⁸ The authors of the UK Draft Criminal Code agreed that inclusion of such a provision was, strictly speaking, unnecessary. They included it nonetheless because they thought it ‘worthwhile to enshrine in the Code the truth that a mistake as to the law, equally with one as to fact, can be a reason why a person is not at fault in the way prescribed for the offence'. Codification of the Criminal Law, (1985) Law Com No 143, 73.

⁶⁹ Criminal Code (Cth) s 3.1 Elements.

⁷⁰ As, for example, in the offences in the Criminal Code (Cth) ch 7, pt 7.4 False or misleading statements, which distinguishes grades of offending depending on whether knowledge or recklessness as to falsity is established.

⁷¹ See Ostrowski v Palmer (2004) 218 CLR 493 for an instance of uncompromising rigour in distinguishing between errors of law and errors of fact.

⁷² There is a faint suggestion in the judgment of Spigelman CJ in R v JS (2007) 175 A Crim R 108, 137 that explicit reference to a fault element, such as intention, knowledge or recklessness would disarm s 9.3(1) as an instance where the Act was ‘expressly to the contrary effect'. The suggestion is untenable: s 5.6 Offences that do not specify fault elements is mandatory in its requirements. No distinction can be drawn between offences that make explicit reference to fault elements of intention or recklessness and those in which s 5.6 supplies the fault element.

⁷³ In R v JS (2007) 175 A Crim R 108, Spigelman CJ relies on the permissive form of the provision. His judgment is concerned, however, with the original provision, prior to amendment. The current version is less hospitable to the permissive interpretation.

⁷⁴ The Law Commission for England and Wales, Criminal Law: Codification of the Criminal Law — A Report to the Law Commission, Law Com No 143 (1985), UK Draft Criminal Code Bill s 25(1).

⁷⁵ See the discussion in Gani, ‘Codifying the Criminal Law: Implications for Interpretation', above n 20, 273–5, with particular reference to the judgment of Kirby J in R v Barlow (1997) 188 CLR 1.

⁷⁶ It is arguable that the cross-referencing problem did not require a statutory solution. One might expect any court, faced with the case of a drug trafficker who knew the substance to be cocaine, to reject out of hand the suggestion that liability requires, in addition, proof that the trafficker was familiar with the text of Criminal Code (Cth) Part 9.1 Serious drug offences. For the purposes of criminal liability, the statutory and the pharmacological designations of the substance are equivalents. Support for that conclusion might be drawn from the majority judgment in R v Tang (2008) 236 CLR 1. The question is not moot: the amendment is not retrospective in its effect and it is not impossible that the permissive interpretation will get a run before an appellate court. See DPP (Cth) Reference No 1 of 2008 (2008) 220 FLR 345 where the court dismissed an untenable contention that the defendant was required to know the law without reference to s 9.3 Mistake or ignorance of statute law.

⁷⁷ For recent discussion of the distinction, see R v JS (2007) 175 A Crim R 108; CTM v The Queen (2008) 236 CLR 440, 507 (Heydon J).

⁷⁸ See also Model Penal Code and Commentaries: Official Draft and Revised Comments, Part 1 General Provisions (American Law Institute, 1985) 25, ‘It should also be noted that the general principle that ignorance or mistake of law is no excuse is greatly overstated; it has no application, for example, when circumstances made material by the definition of the offence include a legal element.’ To the same effect, Markus Dubber, Criminal Law: Model Penal Code (2002) 102: The distinction between fact and law ‘plays no role in the Model Code's approach to mistake. Under the Code, it makes no difference how a mistake is classified; the only thing that matters is whether or not it negatives an element of the offence'. It is worth noting that Dubber takes the view that the Model Penal Code does not reflect US common law on this point.

⁷⁹ The Law Commission for England and Wales, Criminal Law: Codification of the Criminal Law — A Report to the Law Commission, Law Com No 143 (1985), UK Draft Criminal Code Bill s 25(1) (emphasis added).

⁸⁰ Problems associated with mistake and ignorance of law in federal jurisdiction are increasingly apparent. See Mei Ying Su v Australian Fisheries Management Authority (No 2) (2008) 251 ALR 135; DPP (Cth) Reference No 1 of 2008 (2008) 220 FLR 345; R v Donaldson and Poumako (2009) 103 SASR 309; Roads and Traffic Authority (NSW) v O'Reilly (2009) 52 MVR 243.

⁸¹ Douglas, Husak and Andrew, von Hirsch, ‘Culpability and Mistake of Law’ in Stephen, Shute, John, Gardner and Jeremy, Horder (eds), Action and Value in Criminal Law (1993) 157–74Google Scholar. See also Kevin, Jon Heller, ‘Mistake of Legal Element, the Common Law and Article 32 of the Rome Statute: A Critical Analysis’ (2008) 6 Journal of International Criminal Justice 419Google Scholar.

⁸² Criminal Law Officers Committee, above n 55, 59 bases its assertion of the proposition on The Law Commission for England and Wales, Criminal Law: Codification of the Criminal Law — A Report to the Law Commission, Law Com No 143 (1985), UK Draft Criminal Code Bill s 21, which cites no authority for it, and Attorney-General's Department, Review of Commonwealth Criminal Law: Interim Report — Principles of Criminal Responsibility and Other Matters (1990) Draft Bill s 3J. In the Review ch 6 ‘Mistake of Law,’ the authority cited is Brent, Fisse, Howard's Criminal Law (5th ed, 1990) 505Google Scholar. That text, which contains an unusually complete citation of authorities, does not support the draft provision. It states: ‘The general rule is that ignorance or mistake of law is no excuse, whether in relation to the mental element of offences, the belief element of defences such as self-defence and duress, or in the…defence of reasonable mistake of fact. A limited number of exceptions to this general rule have been recognised’ (emphasis added).

⁸³ See, eg, DPP (Cth) Reference No 1 of 2008 (2008) 220 FLR 345, where the Court held that the defendant's mistake or ignorance as to the law was not inconsistent with proof of the necessary fault element: prosecutorial reliance on s 9.3 Mistake or ignorance of statute law is unnecessary in such a case.

⁸⁴ (1941) 67 CLR 536.

⁸⁵ But see CTM v The Queen (2008) 236 CLR 440, in which all members of the High Court accepted the view that absence of reasonable mistake of fact is a form of common law mens rea, not a ‘defence'. Though reasonable mistake of fact is characterised in this way, the evidential burden remains on D: the applicant, CTM, failed in the High Court on the ground that reasonable mistake of fact was not ‘enlivened’ and need not have gone to the jury, because there was insufficient evidence to support the hypothesis that he had made a reasonable mistake. The High Court decision is consistent with the Criminal Code (Cth) designation of reasonable mistake of fact as a defence — a designation which depends entirely on the allocation of the evidential burden.

⁸⁶ See Ostrowski v Palmer (2004) 218 CLR 493.

⁸⁷ See ss 9.2 Mistake of fact (strict liability), 9.3 Mistake or ignorance of statute law, 9.4 Mistake or ignorance of subordinate legislation, each of which requires the distinction to be observed.

⁸⁸ Criminal Law Officers Committee, above n 55, 55.

⁸⁹ See, eg, CTM v The Queen (2008) 236 CLR 440, 447 (Gleeson CJ, Gummow, Crennan and Kiefel JJ): ‘The concept of mistake itself is protean', citing State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721, 724. Compare Moylan v State of Western Australia (2007) 169 A Crim R 302, 313 [55] (Miller AJA): ‘[A]n accused person must show that he actually believed that a certain state of fact or facts existed which, if true, would mean that he would not be criminally responsible for the offence. A ““positive or affirmative“” belief must be present.'

⁹⁰ See s 9.2(1)(a): The defence is only open to one who ‘considered whether or not facts existed and is under a mistaken but reasonable belief about those facts'.

⁹¹ There appears to be considerable variation at common law, and in jurisdictions that adopted versions of the Criminal Code 1899 (Qld) ('Queensland Criminal Code’), in the extent to which individual characteristics can be taken into account when determining whether a mistake was ‘reasonable'. See the recent decision in Bailey v Doncon (2007) 178 A Crim R 358, 371, for a particularly indulgent formulation.

⁹² See s 9.2(1)(b) which permits a defence of reasonable mistake of fact when the conduct would not have constituted an ‘offence’ if the belief had been true. The Dictionary of the Criminal Code (Cth) limits ‘offence’ to ‘an offence against a law of the Commonwealth'.

⁹³ It now appears that Australian common law characterises absence of reasonable mistake of fact as a form of ‘mens rea': see CTM v The Queen (2008) 236 CLR 440. Notwithstanding that characterisation, the defendant bears the burden of ‘enlivening’ the issue, which will not be submitted for the consideration of the trier of fact unless there is evidence of a reasonable mistake of fact.

⁹⁴ Criminal Code (Cth) s 474.19 Using a carriage service for child pornography material.

⁹⁵ Criminal Code (Cth) ss 473.4 Determining whether material is offensive, 473.1 Definitions, ‘child pornography'.

⁹⁶ Criminal Code (Cth) s 474.19(2)(b).

⁹⁷ (2007) 170 A Crim R 389.

⁹⁸ (2004) 220 CLR 1, 26 (Gleeson CJ) on insulting words: ‘[T]he language in question must be not merely derogatory of the person to whom it is addressed; it must be of such a nature that the use of the language, in the place where it is spoken, to a person of that kind, is contrary to contemporary standards of public good order, and goes beyond what, by those standards, is simply an exercise of freedom to express opinions on controversial issues.’ See also Ferguson v Walkley (2008) 17 VR 647.

⁹⁹ Compare, for example, Ball v McIntyre (1966) 9 FLR 237, 242–3, where Kerr J said that ‘offensive’ behaviour must be ‘calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.’ Also, see generally the acute discussion and analysis in Bronitt and McSherry, Principles of Criminal Law, above n 8, 752–70.

¹⁰⁰ Charlie v The Queen (1999) 199 CLR 387. The transcript of argument before the High Court is particularly interesting on this issue. See also R v Watson [1987] 1 Qd R 440.

¹⁰¹ Ferguson v Walkley (2008) 17 VR 647.

¹⁰² [1973] QB 530.

¹⁰³ [1982] QB 1053.

¹⁰⁴ (1998) 192 CLR 493. See also R v Balnaves (2000) 117 A Crim R 85.

¹⁰⁵ Andrew, Ashworth, Principles of Criminal Law (4th ed, 2003) 387Google Scholar.

¹⁰⁶ Similar considerations are apparent in the majority judgment in R v Tang (2008) 236 CLR 1.

¹⁰⁷ Model Criminal Code Officers Committee, Report on the Model Criminal Code, Chapter 3: Theft, Fraud, Bribery and Related Offences (1995); Model Criminal Code Officers Committee, Report on the Model Criminal Code, Chapter 3: Conspiracy to Defraud (1997).

¹⁰⁸ Ferguson v Walkley (2008) 17 VR 647. There is a serious issue for concern about the location of the threshold of liability for criminal offences that has so far escaped the attention of criminal law theorists. The problem is evident in the ch 2 definition of s 5.5 Negligence, which requires a departure from acceptable standards of conduct so marked as to ‘[merit] criminal punishment for the offence'. Quite apart from the circularity of the test, it is apparent that a substantial number of offences of strict and absolute liability set the threshold of liability well below that required when negligence must be proved. See, in particular, Patterson v White [2009] QDC 63 (Unreported, Robin J, 23 March 2009).

¹⁰⁹ See Chief Justice James Jacob Spigelman, above n 3. For a UK parallel, see R v K [2002] 1 AC 462, 477 (Lord Steyn): ‘It is well established that there is a constitutional principle of general application that “whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea“', citing Sweet v Parsley [1970] AC 132, 148 (Lord Reid).

¹¹⁰ Chief Justice James Jacob Spigelman, ‘The Principle of Legality and The Clear Statement Principle’ (Speech delivered at the New South Wales Bar Association Conference, Sydney, 18 March 2005). See also R v JS (2007) 175 A Crim R 108, 133–7 (Spigelman CJ).

¹¹¹ The Law Commission for England and Wales, Criminal Law: Codification of the Criminal Law — A Report to the Law Commission, Law Com No 143 (1985) [2.34].

¹¹² Ibid.

¹¹³ The Law Commission for England and Wales, Criminal Law: Codification of the Criminal Law — A Report to the Law Commission, Law Com No 143 (1985) [2.34], UK Draft Criminal Code Bill s 5(1) ‘fault element'.

¹¹⁴ Elimination of the general defence in s 9.5 Claim of right is proposed in Ian Leader-Elliott, ‘Cracking the Code: Emerging Stress Points in Chapter 2 Jurisprudence’, above n 1.

¹¹⁵ It could have no application, for example, in R v Tang (2008) 236 CLR 1 or in DPP (Cth) Reference No 1 of 2008 (2008) 220 FLR 345, where the court dismissed an untenable contention that the elements of an offence under the Trade Marks Act 1995 (Cth) included a requirement of proof that the defendant had knowledge, awareness or belief that the conduct was unlawful in a criminal sense or wrong according to ordinary standards.

¹¹⁶ The defence of reasonable mistake of law does not extend to include mistakes about the law defining a defence. It is limited to a mistaken belief that the conduct (with its accompanying fault elements, circumstances and results) would not constitute an ‘offence'.

¹¹⁷ The proposed provision follows s 9.2 Mistake of fact (strict liability) in its requirement that D would be innocent of any criminal offence. It is more restrictive in its application than the mistake of fact provision by requiring innocence in relation to state, territorial and foreign law. It is arguable, in the case of reasonable mistake of fact, that the defence is too generous in its potential applications. Amendment is proposed below. Note – Partial Defences of Mistaken Belief: The Queensland Criminal Code s 24 provides that the defence ensures that D ‘is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist'. The Model Penal Code — Proposed Official Draft (American Law Institute, May 4, 1962) s 2.04(3) also recognises a partial defence of mistake of fact. There are several particular instances where the Criminal Code (Cth) recognises such partial defences: see ch 9 Serious drug offences and ch 10, pt 10.3 Money laundering, where offences are graded in tiers of seriousness by quantitative measures. Though the argument for a partial defence of reasonable mistake of fact has considerable persuasive force, provision for a partial defence of reasonable mistake of law would be unsustainable. Defendants who act in the knowledge that their conduct is a criminal offence should not escape liability for a more serious offence than they contemplated, no matter how reasonable their error.

¹¹⁸ The obvious example here is ‘ulterior [intention]', discussed in Leader-Elliott, ‘Benthamite Reflections on Codification of the General Principles of Criminal Liability: Towards the Panopticon', above n 8, 429–32.