Criminal Code Act. Australia
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Название: Criminal Code Act
Автор: Australia
Издательство: Проспект
Жанр: Юриспруденция, право
isbn: 9785392081615
isbn:
(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
7.1 Children under 10
A child under 10 years old is not criminally responsible for an offence.
7.2 Children over 10 but under 14
(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.
7.3 Mental impairment
(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 Code:
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 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
8.1 Definition — self-induced intoxication
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.
8.2 Intoxication (offences involving basic intent)
(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.
8.3 Intoxication (negligence as fault element)
(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.
8.4 Intoxication (relevance to defences)
(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 СКАЧАТЬ