LAWS1206 Lecture Notes - Lecture 11: Negotiable Instrument, Corporation Sole, Direct Debit
Week 11: Criminal Code 2002 (ACT) and Property Offences
Overview
Brief explanation of the pre-9 April 2004 position in relation to property offences in the ACT.
Introduction to the changes brought about by the Criminal Code (Theft, Fraud, Bribery and Related
Offences) Amendment Act 2004 – which inserted a Chapter 3 into the Criminal Code 2002 (ACT).
Note that the new offences are based on the MCC, Chapter 3, which, like the old ACT
provisions, are modelled on the Theft Act 1968 (UK). So there are a lot of similarities
between the old and the new ACT offences.
Criminal Codes and their interpretation:
Significance of Chapter 2 – General Principles of Criminal Responsibility (NB section 7 of
the Code)
Statements re Code interpretation by Kirby J in Barlow (1997) 188 CLR 1 and Charlie
(1999) 199 CLR 387.
Relevance of the common law to interpretation of code offences?
Introduction to the old common law of larceny and questions.
Overview of ACT Chapter 3 Offences
The elements of theft under the Criminal Code 2004 (ACT) (ss 308 and 321).
Physical Elements of theft (ss 308 and 321):
Appropriation (s 304);
Property (Code Dictionary + definition in Legislation Act 2001 (ACT));
Belonging to someone else (ss 301 and 305).
Special issues re “property”:
Money transfers (s 330);
General deficiency (s 307).
What are property offences?
Larceny / theft / stealing
Fraud / obtaining by deception / embezzlement
Burglary / breaking and entering / unlawful entry with intent
Robbery
Extortion / bribery
Criminal damage / vandalism
Computer hacking / computer misuse
Copyright piracy / Trade mark counterfeiting
Dealing in stolen goods
Forgery / uttering
Property offences in Australian jurisdictions
Category 1:
In NSW, the longstanding legislative offences in the Crimes Act 1900 (NSW) are based on the
common law of larceny. On February 22, 2010, the Crimes Amendment (Fraud, Identity and
Forgery Offences) Act 2009 (NSW) inserted a few new definitions as well as some fraud offences
into the Crimes Act, but the bulk of offences (based on larceny) remain unchanged.
Category 2:
Legislative/Code offences directly based on the English Theft Act 1968 (Vic, SA and NT).
Category 3:
Griffith Code property offences based on larceny (in jurisdictions that have Criminal Codes based on
the Draft Code developed by Sir Samuel Griffith in 1897 - Qld, WA, Tas).
Category 4:
Code offences based on the MCC - the provisions of which were themselves based on the Theft Act
1968 (UK) (ACT and Cth).
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This course deals with ACT property offences NOT NSW
Why?
NSW is the only Australian jurisdiction to cling to the common law of larceny; and
You cannot complete a compulsory criminal law and procedure course without knowing something
about criminal codes.
(The ACT is in transition from having a common law criminal law system very similar to NSW to
being a codified criminal law jurisdiction. As at early 2017, the Code provided a date for that
transition to be complete: 1 July 2017 (see Criminal Code 2002 (ACT), ss 7, 8 and 10 as in
operation at 1 May 2017). However, the “application date” defined in s 10 was amended in 2017 to
mean “a date declared by the Minister”. So there is now no set date for codification to be
completed.)
History of ACT property offences:
Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Act 2004 (ACT) added
Chapter 3 to Criminal Code 2002 (ACT)
In force in ACT from 9 April 2004
Replaced previous property offences in Crimes Act 1900 (ACT) (based on Theft Act 1968 (UK)
offences)
Chapter 3 offence provisions are based on Model Criminal Code property offence provisions which
are themselves also based on offences in Theft Act 1968 (UK)
What is a code?
Definition of a ‘Code’ in Matthew Goode, ‘Codification of the Australian Criminal Law’ (1992)
16 Crim LJ 5
[A Criminal Code is a] pre-emptive, systematic, and comprehensive enactment of the whole field of
law. It is pre-emptive in that it displaces all other law and its subject areas save only that which the
Code excepts. It is systematic in that all of its parts, arranged in an orderly fashion and stated with a
consistent terminology, form an interlocking, integrated body, revealing its own plan and containing
its own methodology. It is comprehensive in that it is sufficiently inclusive and independent to
enable it to be administered in accordance with its own basic policies.
Current state of ACT criminal law
Incomplete Criminal Code 2002 (ACT) operating in parallel with Crimes Act 1900 (ACT)
Criminal Code 2002 consists of:
Chapter 1 (codification), Chapter 2 (principles of criminal responsibility), Chapter 3, (Theft,
Fraud, Bribery and related offences), Chapter 4 (Property Damage and Computer Offences),
Chapter 6 (Serious Drug Offences), Chapter 7 (Administration of Justice Offences) and a regulation
making power in Chapter 8.
Offences against the person (which will eventually be in Chapter 5 of the CC (ACT)) and a variety of
other offences are still currently located in the Crimes Act 1900 (ACT).
Criminal Code 2002 (ACT)
Section 7 Application—ch 2
oThis chapter [chapter 2] applies to all offences against this Act and all other offences against
territory laws.
o[That means all property offences must be interpreted in accordance with the principles set
out in Chapter 2.]
Provisions in chapter 2
Part 2.2 The elements of an offence:
11 Elements
12 Establishing guilt of offences
Division 2.2.2 Physical Elements
13 Definitions - conduct and engage in conduct
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14 Physical elements
15 Voluntariness
16 Omissions
Division 2.2.3 Fault elements
17 Fault elements
18 Intention
19 Knowledge
20 Recklessness
21 Negligence
22 Offences that do not provide fault elements
Division 2.2.4 Cases where fault elements are not required
23 Strict liability
24 Absolute liability
…
Division 2.3.4 Mistake and ignorance
35 Mistake or ignorance of fact - fault elements other than negligence
36 Mistake of fact – strict liability
38 Claim of right
Section 14 Physical elements
A physical element of an offence may be –
o(a) conduct; or
o(b) a result of conduct; or
o(c) a circumstance in which conduct, or a result of conduct occurs.
NB see section 13 for the definitions of conduct and engage in conduct.
Section 13 Definitions – Conduct and Engage in Conduct
In this Act:
conduct means an act, an omission to do an act or a state of affairs.
engage in conduct means-
o(a) do an act; or
o(b) omit to do an act.
Section 17 fault elements
(1) A fault element for a particular physical element may be intention, knowledge, recklessness or
negligence.
(2) Subsection (1) does not prevent a law that creates an offence from providing other fault elements
for a physical element of the offence.
Section 21 Negligence
A person is negligent in relation to a physical element of an offence if the person’s conduct merits
criminal punishment for the offence because it involves-
o(a) such a great falling short of the standard of care that a reasonable person would exercise
in the circumstances; and
o(b) such a high risk that the physical element exists or will exist.
Main principles Re interpreting codes (see Kirby J in Barlow (1997) 188 CLR 1 and Charlie (1999) 199
CLR 387)
1. A code is a piece of legislation so interpretation legislation applies.
2. The first loyalty is to the Code, it must be interpreted in a way that is internally consistent [and s 7 of
the Criminal Code 2002 (ACT) tells us that it is particularly important that it is interpreted
consistently with the general principles contained in Chapter 2].
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Document Summary
Week 11: criminal code 2002 (act) and property offences. Brief explanation of the pre-9 april 2004 position in relation to property offences in the act. Introduction to the changes brought about by the criminal code (theft, fraud, bribery and related. Offences) amendment act 2004 which inserted a chapter 3 into the criminal code 2002 (act). Note that the new offences are based on the mcc, chapter 3, which, like the old act provisions, are modelled on the theft act 1968 (uk). So there are a lot of similarities between the old and the new act offences. Significance of chapter 2 general principles of criminal responsibility (nb section 7 of the code) Statements re code interpretation by kirby j in barlow (1997) 188 clr 1 and charlie (1999) 199 clr 387. Introduction to the old common law of larceny and questions. The elements of theft under the criminal code 2004 (act) (ss 308 and 321).
