← The hardest concepts in Australian law
In one breath
Australia has no single criminal law: each State and Territory makes its own, and Queensland, Western Australia, Tasmania and the Northern Territory write the general principles into a Criminal Code, while New South Wales, Victoria and South Australia rely mainly on the common law with statutes layered on top. Every offence still has a physical element and a fault element, but the rules on accident, mistake and defences sit in different places and can lead to different answers.
The picture
The recipe book and the family kitchen
Two kitchens make the same dish. One keeps a written recipe book: if you want to know whether to add salt, you turn to the page and read, and the cook is expected to follow the words. The other cooks by habit passed from cook to cook, and to learn whether to add salt you ask how past cooks have done it, look at meals that went wrong, and read the notes people have scribbled over the years.
Australian criminal law is like this. A prosecution in a Code State begins with the text, and accident, intention and mistake are answered by its words. In Queensland, for example, the Code provides that a person is not criminally responsible for an event that occurs by accident, and treats a mistaken belief that is both honest and reasonable as an excuse. In the common law States the answers come from the cases: a presumption that serious crime needs a guilty mind, a defence of honest and reasonable mistake of fact, and a self-defence test shaped by the High Court. Statutes have since been laid over the cases in several places, so the family kitchen increasingly has a printed menu.
Where the picture stops working
Neither kitchen is quite what its name suggests. Code States have case law interpreting their texts, and common law States have long defined many offences and some defences by statute. The Codes also differ from one another, so a rule should not be carried from Queensland to Western Australia without reading the text. Federal offences are different again, with a Commonwealth Criminal Code of their own.
How it really works
- 1Place the rule. Criminal law is State and Territory law, with the Commonwealth making federal offences. The High Court’s decisions on the common law apply across the country.
- 2Identify the jurisdiction and whether it is a Code State. Find the offence in the statute and read its elements.
- 3Separate the physical and fault elements. For each, ask what the offence requires: an act, a circumstance or a result, and intention, knowledge, recklessness or negligence. In a common law State, a guilty mind is presumed to be required unless the statute clearly says otherwise.
- 4Turn to accident and mistake. In a Code State, read the Code’s general provisions. Elsewhere, use the common law and any statute that has replaced it.
- 5Check the defences. Ask whether self-defence is in statute. At common law the question is whether the accused believed, on reasonable grounds, that it was necessary to do what they did to defend themselves.
Why people get it wrong
- Treating Australian criminal law as one national law.
- Assuming a Code leaves no room for case law. The courts still interpret the text.
- Assuming a word such as “accident” means the same in every jurisdiction.
- Reading the silence of a statute about fault as meaning no fault is needed. The presumption in favour of a guilty mind remains.
- Assuming federal offences follow the rules of whichever State the trial is in.
A worked example
The facts are invented
Mara reverses her car out of a driveway, and a child who ran out unseen behind it is injured. In a Code State, the court asks whether the injury was an event occurring by accident in the Code’s sense: not intended or foreseen by her, and not reasonably foreseeable by an ordinary person. If it was, she is not criminally responsible for that event, although the Code deals separately with negligent acts.
In a common law State the court starts differently. It asks what the offence charged requires, say a negligence-based driving offence, and the fault element is defined by the statute and the cases. The same facts go through different questions and may lead to different answers. Whichever route is used, a court will not simply assume that a person who caused injury must be guilty without examining the fault element.
Try it
A person in Queensland is charged with an offence and says the event occurred by accident. Where would a court first look for the rule on accident?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Proudman v Dayman, (1941) 67 CLR 536
- He Kaw Teh v The Queen, (1985) 157 CLR 523
- Zecevic v Director of Public Prosecutions (Vic), (1987) 162 CLR 645
Where to go next
Courses
Dictionary
More hard concepts in Australia law
- Implied terms (Contract law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. Australia is a federation: the Commonwealth, the six States and the Territories each make law, and the High Court is the final court for all of it. The common law, by contrast, is one law across the country. Each page says whether the rule is constitutional, federal or common law shared by every jurisdiction, or State-by-State legislation that varies, and flags where the States and Territories differ. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources of your own jurisdiction before relying on any rule.