3.2 Establishing guilt in respect of offences

Commonwealth Criminal Code: Guide for practitioners

3.2 Establishing guilt in respect of offences

In order for a person to be found guilty of committing an offence the following must be proved:

  1. (a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
  2. (b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

Note 1: See Part 2.6 on proof of criminal responsibility.
Note 2: See Part 2.7 on geographical jurisdiction.

Section 3.2 states, in summary form, the presumption of innocence. A person is innocent of an offence until the elements of the offence are proved. Since s3.2 occurs in Part 2.2 – The elements of an offence, the provision has nothing to say with respect to proof of defences, exceptions, exemptions or qualifications to criminal liability for an offence. Their analysis, together  with consideration of the meaning of “proof” is deferred until the concluding provisions of Chapter 2: Part 2.6 - Proof of Criminal Responsibility. Some preliminary points can be made however:

Chapter 2 of the Code recognises and defines four distinct fault elements: intention, knowledge, recklessness and negligence: Division 5 - Fault elements. That does not exhaust the range of fault elements; some offences require more specialised forms of fault. The presumption of innocence enunciated  in s3.2 requires proof of any fault element required for guilt of an offence.15 But not all offences require proof of fault with respect to each of their physical elements. Though 3.2(b) insists that the prosecution must prove fault, when fault is an element of the offence, it acknowledges that offences may impose strict or absolute liability with respect to one or more physical elements.  So, for example, offences which involve unlawful appropriation   or damage to Commonwealth property do not require proof of fault with respect to the fact that the property belongs to the Commonwealth. As to that particular element of these offences, liability is usually absolute.

  1. If the provision were to be taken in isolation and subjected to literal interpretation, section 3.2(b) might be taken to mean that the prosecution may choose which of the fault elements it will under- take to prove: “….prove one of the fault elements for the physical element.” It is clear, however, that this reading would be inconsistent with the scheme of Chapter 2, in particular, the definition of fault elements in Division 5 – Fault elements and section 13.1 Legal burden of proof – prosecution. It is evident that the intended meaning of s3.2(b) can be paraphrased as follows: “[The prosecution must prove] in respect of each such physical element for which one or more fault elements is required, the fault element required.”