Criminal Code Act. Australia
Чтение книги онлайн.
Читать онлайн книгу Criminal Code Act - Australia страница 4
Название: Criminal Code Act
Автор: Australia
Издательство: Проспект
Жанр: Юриспруденция, право
isbn: 9785392081615
isbn:
(3) If a person’s intoxication is not self-induced, in determining whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.
(4) If, in relation to an offence:
(a) each physical element has a fault element of basic intent; and
(b) any part of a defence is based on actual knowledge or belief;
evidence of self-induced intoxication cannot be considered in determining whether that knowledge or belief existed.
(5) 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.
8.5 Involuntary intoxication
A person is not criminally responsible for an offence if the person’s conduct constituting the offence was as a result of intoxication that was not self-induced.
Division 9
Circumstances involving mistake or ignorance
9.1 Mistake or ignorance of fact (fault elements other than negligence)
(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:
(a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.
(2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
9.2 Mistake of fact (strict liability)
(1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted an offence.
(2) 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 the 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.
Note: Section 6.2 prevents this section applying in situations of absolute liability.
9.3 Mistake or ignorance of statute law
(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if the Act is expressly to the contrary effect.
9.4 Mistake or ignorance of subordinate legislation
(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of the subordinate legislation that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if:
(a) the subordinate legislation is expressly to the contrary effect; or
(c) at the time of the conduct, the subordinate legislation:
(i) has not been made available to the public (by means of the Register under the Legislative Instruments Act 2003 or otherwise); and
(ii) has not otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence.
(3) In this section:
available includes available by sale.
subordinate legislation means an instrument of a legislative character made directly or indirectly under an Act, or in force directly or indirectly under an Act.
9.5 Claim of right
(1) A person is not criminally responsible for an offence that has a physical element relating to property if:
(a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b) the existence of that right would negate a fault element for any physical element of the offence.
(2) A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.
(3) This section does not negate criminal responsibility for an offence relating to the use of force against a person.
Division 10
Circumstances involving external factors
10.1 Intervening conduct or event
A person is not criminally responsible for an offence that has a physical element to which absolute liability or strict liability applies if:
(a) the physical element is brought about by another person over whom the person has no control or by a non-human act or event over which the person has no control; and
(b) the person could not reasonably be expected to guard against the bringing about of that physical element.
10.2 Duress
(1) A person is not criminally СКАЧАТЬ