the elements of a criminal offence under the Criminal Code Act 1899 (Qld), including actus reus and mens rea

What this dot point is asking

QCAA wants you to know what the prosecution must prove to secure a conviction in Queensland and how the elements relate to the Criminal Code Act 1899 (Qld). Expect a 3-5 mark short response item.

The answer

Queensland is a code jurisdiction

Queensland is one of three Australian "code states" (Queensland, Western Australia, Tasmania), where the criminal law is largely codified in a Criminal Code rather than left to common law. Queensland's primary criminal statute is the Criminal Code Act 1899 (Qld) (Schedule 1 of the Act contains the Code).

Other criminal statutes apply in particular areas:

• Summary Offences Act 2005 (Qld) for many minor offences;
• Drugs Misuse Act 1986 (Qld) for drug offences;
• Transport Operations (Road Use Management) Act 1995 (Qld) for traffic offences;
• Criminal Code Act 1995 (Cth) for Commonwealth offences.

The two elements

The prosecution must prove two elements beyond reasonable doubt.

1. Actus reus (the physical element). The conduct, circumstances and any consequences specified by the offence. For example:

• murder under the Criminal Code 1899 (Qld) s 302 requires the unlawful killing of another;
• assault under s 245 requires the application of force without consent or the threat of such force;
• stealing under s 391 requires the fraudulent taking or conversion of another's property.

2. Mens rea (the mental element). The mental state required by the offence. The Criminal Code 1899 (Qld) s 23(2) provides that intention is generally not an element of an offence unless expressly required by the relevant section. This makes Queensland different from common law jurisdictions like NSW.

Key Queensland Criminal Code provisions on the mental element:

• s 23 - Intention, motive, accident. A person is not criminally responsible for an act or omission which occurs independently of the exercise of his or her will, or for an event that occurs by accident.
• s 24 - Mistake of fact. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he or she believed to exist.
• s 27 - Insanity. Where a person was, at the time of the act, in such a state of mental disease or natural mental infirmity as to deprive them of capacity to understand what they were doing, or of capacity to control their actions, or of capacity to know they ought not to do the act, they are not criminally responsible.

Standard and burden of proof

The prosecution bears the burden of proof. The standard is beyond reasonable doubt.

The accused enjoys the presumption of innocence at common law and is supported by the Human Rights Act 2019 (Qld) s 32(1), which recognises a person's right to be presumed innocent until proved guilty according to law.

Strict liability offences

Some statutory offences in Queensland do not require proof of a mental element. These are strict liability offences. Common examples are speeding offences under the Transport Operations (Road Use Management) Act 1995 (Qld) and many regulatory offences.

The leading authority on whether a statute creates strict liability is He Kaw Teh v The Queen (1985) 157 CLR 523, which held that the presumption of mens rea is displaced only by clear statutory words or by necessary implication, and applies most readily to regulatory rather than truly criminal offences.

Combined application

In practice, the prosecution must adduce evidence to prove:

1. each physical element specified by the offence; AND
2. each mental element (where required); AND
3. the absence of any defence the accused has properly raised (e.g. self-defence under Criminal Code 1899 (Qld) s 271, where the burden of proof of the absence of the defence lies on the prosecution once the issue is raised).