Defence of Lack of intent

In many criminal offences, one of the things that the prosecution has to prove, is that the accused person had the intention to commit that act, and intended to achieve the end result. It can be a defence to certain charges, if that intention is not held. For instance, to be found guilty of possession of cocaine the prosecution must prove that the accused person intended to possess cocaine.

In relation to Commonwealth Offences;

The law on intent can be found in the Criminal Code Act 1995. Section 5.2 provides for when a person is said to have ‘Intention’.

• A person has intention with respect to conduct if he or she means to engage in that conduct. (voluntariness)
• A person has intention with respect to a circumstance if he or she believes that it exists or will exist. (belief held by a person)
• A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events. (intended consequence)

What this means is that, a person who does not commit and act voluntarily, or holds a mistaken belief, or did not intend the consequence achieved, may be in a position to raise a defence of lack of intent.

The leading case:

One of the leading cases on lack of intent is He Kaw The v The Queen (1985) 157 CLR 523. In this case, it was said that because intent is an ingredient of a crime, it must be proved by the prosecution and a mistaken belief in facts, which are inconsistent with the required intent, does not have to be based upon reasonable grounds. Either the accused has a guilty mind, or he does not, and an honest belief, whether reasonable or not, points to the absence of the required intent, and the prosecution fails to prove its case.

This was a major drug importation where the defendant was stating that he thought it was something else that he was bringing in.

Important to note:

Lack of intent is not always a complete defence. People are often charged on the basis that their actions were reckless, and fault is attributed on that basis.

The law on intention and recklessness can be complex. If you have been charged with an offence, and think lack of intent is a relevant consideration, you should speak with one of our lawyers.

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