Defence of Lack of Intent

In criminal law, intent is a subjective state of mind known as ‘mens rea’. In some cases, the prosecution is tasked with proving the accused’s guilty state of mind. In other cases, guilt can be established even where the accused did not intend to break the law.

Mens rea offences

In ‘mens rea’ offenses, the prosecutor must prove that the accused person intended to commit the criminal offence. An example of an offence in Victoria that requires criminal intent is the charge of criminal damage arising under section 197 of the Crimes Act 1958. The offence of criminal damage has the following four elements:

  1. The accused destroyed or damaged property;
  2. The property belonged to another;
  3. The accused intended to destroy or damage property; and
  4. The accused did not have a lawful excuse for his or her actions.

The third element of this offence requires that the accused intended to destroy or damage property. This means that the prosecutor must prove beyond reasonable doubt that the accused intended to damage the property. There are two ways in which the prosecution can prove that the accused intended to cause the relevant damage.

  1. They can prove that it was the purpose of the accused to damage or destroy the property; or
  2. They can prove that the accused knew or believed that their actions were more likely that not to result in the property being damaged or destroyed.

The prosecutor will prove intent by looking at the unique circumstances of each case. A person who does not commit an act voluntarily, holds a mistaken belief about a set of facts or did not intend the consequence may be able to raise a defence of lack of intent.

Strict or absolute liability

With some offences, such as speeding or driving with a suspended licence, the intent of the accused is irrelevant. Simply committing these acts – accidently or on purpose – is against the law. These offences, known as strict liability offences, can be proven without the need for a guilty mind. In these matters however, the accused can raise the defence of honest and reasonable belief in a state of fact.

Intent and Recklessness

In some offences, Parliament purposefully tailor legislation to criminalise reckless behaviour as a secondary charge to intentional offences. This is done so that if the more serious ‘intentional’ charge cannot be proven beyond a reasonable doubt, maybe the lesser ‘reckless’ charge will apply.

Intentionally cause injury

The charge of intentionally causes injury states that a person who intended to cause injury is guilty of an offence. The penalty for intentionally cause injury is a maximum of 10 years imprisonment.

Recklessly cause injury

The police will frequently also charge an accused with the charge of recklessly causes injury. The penalty for recklessly cause injury is a maximum of 5 years imprisonment.

To differentiate between criminal intent and recklessness, we can use an example where a person directs fireworks into a crowded street of people and a passer-by suffers burns as a result.

The police might charge the accused with intentionally cause injury and recklessly cause injury (amongst other charges). The prosecution will try to prove that the accused intended to cause harm to the passer-by.

If the prosecution cannot prove that the accused person intended to injure the victim, then the prosecution will turn to the charge of recklessly cause injury. The prosecution must prove that when the accused was shooting fireworks into the crowd, they were aware that doing so would probably result in injury to another person, but they did it anyway.

A lawyer would conference with the prosecution to push for the more serious charge of intentionally cause injury to be withdrawn.

Drunken intent is still intent

If a person is charged for criminal conduct that occurred when they were intoxicated, the prosecution can still prove that the accused intended the alleged conduct despite their level of intoxication. For example, if an intoxicated person is seen putting groceries in their pockets while shopping, they will not be able to rely on their intoxication as a defence. A drunken intent is, nevertheless, an intent.

Commonwealth law – intent

State and Commonwealth law are distinct from one another. For Commonwealth offences, section 5.2 of the Criminal Code Act 1995 defines intention as follows:

  1. A person has intention with respect to conduct if he or she means to engage in that conduct
  2. A person has intention with respect to a circumstance if he or she believes that it exists or will exist
  3. 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.

The High Court in the case of He Kaw Teh established the rule that it is implied that the person who performed the criminal act did so voluntarily and with the intention of doing the act. If the accused person can raise a reasonable doubt as to whether they intended the conduct, they may avoid a finding of guilt.

Is lack of intent a defence?

Lack of intent is not a full defence. However, establishing lack of intent is a strong way to weaken the prosecution case against you. In strict or absolute liability matters, the accused’s intention will not matter to the Court unless the defence of honest and reasonable mistake of fact can be established.

For more information, read our blog article on the defence of lack of intent.