The Queen v BW  NTSC 29
PARTIES: The Queen
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO: 21103872
DELIVERED: 27 April 2012
HEARING DATES: 14 February 2012
JUDGMENT OF: BLOKLAND J
Ruling on Voir Dire – Exclusion of recklessness from charge of attempt sexual intercourse without consent on indictment – fault element for attempt – special liability provision – exclusion of parts of the record of conservation
Criminal Code (NT) s 43AK, s 43AN, s 43AX, s 43BF, s 192(3), s 192(4A), s 192(5),
Criminal Code (CW) s 11.1.3
Knight v The Queen (1992) 175 CLR 495; Mohan  1 QB 1; applied
R v Lindsay  Qd R 386; R v Doyle, ex parte Attorney General  QD R 732; followed
Banditt v The Queen (2005) 224 CLR 262; Hulley v Hill (1993) 69 A Crim R 52; R v Campbell & Baka (No 2)  NSWDC 168; R v Evans (1987) 48 SASR 35; R v Kalajdic and Italiano (2005) 157 A Crim R 300; R v LK; R v RK (2010) 241 CLR 177; The Queen v Geoffrey Gordon (unreported), 21 June 2011 SCC 2093963; The Queen v Khan  1 WLR 813;
WO v Director of Public Prosecutions (NSW)  NSWCCA 275; referred to
O’Meara v R  NSWCCA 90; not followed
Ian Leader-Elliot, ‘The Commonwealth Criminal Code, A Guide for Practitioners’
Odgers, ‘Principles of Federal Criminal Law’ second edition.
The Crown: Mr Morters
Accused: Mr Brock
The Crown: Office of the Director of Public Prosecutions
Accused: North Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: BLO 1205
Number of pages: 17
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
The Queen v BW  NTSC 29
CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 27 April 2012)
Ruling on Count 2 of the Indictment
 In the context of dealing with pre-trial issues, application was made on behalf of the accused to exclude recklessness from a charge of attempt to have sexual intercourse without consent. Currently the charge reads:
“On 31 January 2011 at Darwin in the Northern Territory of Australia, attempted to have sexual intercourse with [the complainant] without her consent and knowing about or being reckless as to the lack of consent”.
 The accused argues that as a matter of law, recklessness is not capable of constituting the fault element for the charge of attempt to have sexual intercourse without consent. It is argued that when the charge is one of attempt, only “intention” to engage in the conduct and “knowledge” of lack of consent will suffice: Section 43BF of the Criminal Code provides intention and knowledge are the fault elements in relation to each physical element of the offence attempted.
 The Crown argues that notwithstanding s 43BF of the Criminal Code confines the fault elements for attempts to intention and knowledge, s 192(4A) fulfils the criteria of a “special liability provision” in s 43BF(9) of the Criminal Code. It is argued this is so because s 192(4A) of the Criminal Code does not require proof of knowledge or belief; its terms effectively provide inadvertence as to consent sufficient to constitute recklessness. One function of a “special liability provision” is to import certain special liability provisions from the completed offence into the attempted offence. On the Crown’s argument, recklessness as provided in s 192(4A) of the Criminal Code suffices for the fault element for an attempt to have sexual intercourse without consent.
 Previously Kelly J has ruled recklessness will not satisfy the fault element for a charge of attempted sexual intercourse without consent. This was on the basis as noted above, that s 43BF Criminal Code confines the fault elements for attempts to knowledge and intention. In submissions in this matter, both counsel emphasized that the issue of whether “special liability provisions” applied to s 192 attempts was not raised before Her Honour.
 Save for the necessity here to consider “special liability provisions”, (to be dealt with below), with respect I agree with Her Honour’s clear statement on how the Criminal Code generally deals with the fault element for attempts. Comparative authority apparently to the contrary in O’Meara v R, (dealing with attempt to obtain a financial advantage under the Criminal Code (CW)), is in my respectful view plainly wrong and should not be followed. The clear words in s 11.1.3 Criminal Code (CW) limit the fault elements for attempts to intention and knowledge. Alternatively, the particular subject matter in O’Meara v R readily admits of distinction. The issues were ultimately resolved on a different basis.
 Relevantly s 192 Criminal Code provides:
(3) A person is guilty of a crime if the person has sexual intercourse with another person:
(a) without the other person's consent; and
(b) knowing about or being reckless as to the lack of consent.
Penalty: Imprisonment for life.
(4A) For subsections (3) and (4), being reckless as to a lack of consent to sexual intercourse or an act of gross indecency includes not giving any thought to whether or not the other person is consenting to the sexual intercourse or act of gross indecency.
(5) Any person who attempts to commit the crime defined by subsection (3) is liable to imprisonment for 7 years.
 Section 192 of the Criminal Code is governed by Part IIAA. For Part IIAA Criminal Code (NT) offences, attempt is codified in s 43BF Criminal Code and provides:
(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and, unless otherwise provided, is punishable as if the offence attempted had been committed.
(2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence.
(3) The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(4) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
Note for subsection (4)
Under section 43AC, only one of the fault elements of intention or knowledge would need to be established in relation to each physical element of the offence attempted.
(5) Subsection (4) has effect subject to subsection (9).
(9) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.
 Section 1 of the Criminal Code provides an exhaustive definition of special liability provisions as follows:
“special liability provisions means a provision providing that:
(a) absolute liability applies to one or more (but not all) of the physical elements of the offence;
(b) in a prosecution for an offence, it is not necessary for the prosecution to prove that the defendant knew something; or
(c) in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed something.”
 The Crown position is that as s 192(4A) provides that the fault element may be constituted by “not giving any thought to whether or not the other person is consenting to sexual intercourse”, special liability is made out as the effect of s 192(4A) means knowledge or belief is not required to prove the completed offence. The accused argues Part IIAA Criminal Code codifies the common law and on proper construction of the Criminal Code no special liability provision applies with respect to offences against s 192 of the Criminal Code.
 The starting point must be the words of the Criminal Code, however when the construction is ambiguous or doubtful it is permissible to consider the common law, especially when as here the legislature has specifically sought to codify the common law. In my view it is not clear that “not giving any thought to whether or not the person is consenting” should be regarded as the equivalent of not knowing or believing “something”, (as required by the special liability provision). Lack of consent is a circumstance in which the conduct occurs. It is a fundamental physical element. It is not merely “something” that may or may not correlate with a fault element.
 Section s 43BF Criminal Code (NT) may be regarded as generally consistent with the common law approach on attempt; the mens rea for attempts was generally not the same as that required for the completed crime. The need to prove only an incomplete actus reus was to some degree balanced by the requirement to prove a high level of culpability in order to constitute mens rea for attempts.
 The Explanatory Memorandum acknowledges the common law approach is codified in s 43BF Criminal Code (NT):
“43BF(4) provides that the fault elements for attempt are intention or knowledge. The starting point for an attempt is that the accused must act intentionally or knowingly with respect to each physical element of the offence attempted ... It is possible to attempt strict and absolute liability offences but intent and knowledge will have to be shown. This codifies the existing position, see Mohan  QB1.”
 In this particular instance, resort to the common law provides qualified assistance, as historically there has been some contest on the content of the mens rea for attempted rape. Further, as the common law offences of “rape” and “attempted rape” and even “attempt” at common law have been repealed and replaced by a range of statutory offences in all Australian jurisdictions, the connection between the previous common law and the current Code on this subject is somewhat tenuous. Common law offences were abolished in the Northern Territory in 1984. The common law that has been used to fix the law of attempts in Part IIAA Criminal Code has not featured in the Northern Territory since then.
 The Explanatory Memorandum deals with the general law on attempts rather than specifically attempted rape or other sexual offence. In Mohan, (cited in the Explanatory Memorandum) the English Court of Appeal reviewed a conviction for attempting to cause bodily injury by wanton driving. The accused had driven his car at a police officer who jumped out of the way. Had the offence been completed the Crown would not have had to prove the accused intended the injury, but rather the lesser element that the accused’s wanton driving resulted in the injury. In contrast, in relation to the charge of attempt the Crown were required to prove an intention to injure the police officer. A direction to the effect that it was sufficient for the Crown to prove a realisation that the wanton injury was likely to cause injury was held to be inadequate.
 Although the discussion was in the context of the offence of conspiracy under the Criminal Code (CW), in The Queen v LK; The Queen v RK, French CJ observed the general position of the common law was that a reckless state of mind would not be sufficient to constitute the mens rea for attempt. Mohan was cited in support of that observation.
 Although the Explanatory Memorandum to Part IIAA Criminal Code (NT) states s 43BF codifies the common law of attempts, there have been divergences within common law jurisdictions on the mens rea for attempted rape. In some common law jurisdictions, recklessness has been held to be sufficient mens rea for attempted rape.
 In Evans, for example the South Australian Court of Criminal Appeal held that the mens rea for attempted rape was the same as the completed offence; intention to have intercourse plus knowledge of or recklessness as to the victim’s consent. Evans and similar approaches cannot be reconciled with the High Court’s decision in Knight v The Queen holding that nothing short of an intention that the completed offence be committed can suffice for an attempt at common law. The Commonwealth Criminal Code ‘A Guide for Practitioners’, indicates the issue of recklessness sufficing for attempts is ‘contested’ and the case law does not support it. Still, some recent case law tends to support a lesser mental element than intention for attempts, for example R v Kalajdic and Italiano with respect to the offence of attempting to obtain property by deception. It was held sufficient for the accused to know that the misrepresentation was probably false. This would appear to be accepting of recklessness.
 The preponderance of authority, (as far as contemporary statements of the common law can be ascertained), appears to reject recklessness as a mental element for attempts, even though there have been some incursions into that accepted doctrine. The commentary to both Part IIAA Criminal Code (NT) and the Criminal Code (CW) suggests the same. Had the legislature meant to introduce recklessness exceptionally in respect of an attempt to commit an offence against s 192 Criminal Code, such an intention must be clear through the operation of the special liability provisions.
 Intriguing as the Crown argument at one level is, the phrase in s 192(4A) Criminal Code “includes not giving any thought to whether or not the other person is consenting” is a particular formulation of the general fault element recklessness. The general fault elements ‘knowledge’ and ‘reckless’ with respect to consent remain for the completed offence, notwithstanding the formulation of reckless in s 192(4A). Recklessness as defined by s 43AK Criminal Code, (requiring proof of subjective advertence of the risk), is not excluded by s 192(4A) Criminal Code. Section 192(4A) of the Criminal Code is drafted inclusively, expanding the content of reckless beyond that caught in s 43AK. By the retention of ‘reckless’ as the fault element, (even though it includes the additional formulation in s 192(4A)), it is concluded here that s 192(4A) is a full fault element and is not amenable to characterisation as a “special liability provision”.
 If the view argued on behalf of the Crown is correct, reckless in its s 43AK formulation would not constitute a “special liability provision”, (and only intention and knowledge would suffice for the attempt), whereas recklessness by “not giving any thought” would constitute a special liability provision, and consequently, and reckless would suffice for the attempt. The one fault element (reckless) on that reasoning would give rise to two different fault elements for the attempt: knowledge for one and reckless for the other. This is not a sensible nor practically workable construction in my respectful view. It cannot be what the Legislature meant.
 It would be expected that a clear indication either expressly or by necessary implication appear in the Criminal Code to designate that a particular offence or element be classified as one of the three types of ‘special liability provisions’ if that was what was intended. In my view proof the accused did “not give any thought to whether or not the other person is consenting” as capable of constituting recklessness is not the equivalent of the Crown being relieved from proving knowledge or belief of “something” as provided in s 1(b),(c) special liability provisions of the Criminal Code. On the Crown’s argument, whenever “knowledge” is not specifically included as a fault element, the special liability provisions would be enlivened. Potentially this could include the majority of offences governed by Part IIAA.
 In s 43BF(9) a “special liability provision” is expressed to apply to “an offence” rather than specifically to a physical or fault element. Presumably the special liability provision can however, apply to the physical or fault elements or to the offence itself. If the submission on behalf of the Crown is correct, the Code has provided a very round-about way to signify a ‘special liability provision’ in respect of s 192(4A) in circumstances when the result would not be in accordance with the dominant common law view, nor any a clear statement to the effect it is not necessary to prove “knowledge or belief”. A clear statement to that effect appears to occur in Commonwealth offences that attract the operation of the identically drafted special liability provisions in the Criminal Code (CW).
 The Explanatory Statement to the Criminal Code Amendment (Criminal Responsibility Reform) Act acknowledges intent or knowledge may still need to be proven for attempting offences of strict or absolute liability:
“[it] should be possible, in the appropriate circumstances, for a person to be guilty of attempting to commit an offence, the conduct element of which is constituted by omission. It is possible to attempt strict and absolute liability offences but intent or knowledge will have to be shown.”
 Very few offences of absolute or strict liability have thus far been created or declared to attract criminal responsibility under Part IIAA Criminal Code. Strict liability may apply to an offence as a whole or to certain physical elements of an offence. Further, no fault element applies to either the offence as a whole, or to a specified particular element, however, the defence of mistake of fact may apply. Absolute liability operates in a similar way save that the defence of mistake of fact is not available.
 Offences defined as strict or absolute liability readily correspond with the “special liability provisions” not requiring proof of knowledge or belief; however those offences thus far designated as strict or absolute liability are expressly declared to be so in the Criminal Code. If a serious offence such as an offence against s 192 Criminal Code was to contain an element capable of corresponding to a special liability provision, I would expect such an indication be at least as clear in the Criminal Code as a declaration of an offence of strict or absolute liability, noting of course it need not be classified as either. As it stands, s 192(4A) is a formulation of a general fault element (reckless).
 On the effect of s 43BF(9) of the Criminal Code, the Explanatory Statement confirms that to establish an attempt it will not be necessary to prove that the defendant had intention or knowledge with respect to those elements of the primary offence to which a “special liability provision” applies. The example given is the question of knowledge by the defendant that a person is a “police officer” in the context of an offence of assault a police officer:
“ ... if the primary offence states that it is an offence to assault a police officer but that to establish that offence it is not necessary to prove that the defendant knew that the person was a police officer, then it is not necessary to prove that knowledge to establish the crime of attempt to assault a police officer”.
 In my view the content of the fault element reckless in s 192(4A) is not the equivalent of a statement in the completed offence removing the requirement to prove a fault element in the manner meant by the legislature.
 The Criminal Code (CW), (from which Part IIAA of the Criminal Code (NT) was derived), was amended in 2000 to include special liability provisions. The provisions were passed as part of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act (Cth). Nothing was said of special liability provisions when the Bill was introduced, nor during the subsequent debate. The special liability provisions were introduced by amendment, at the conclusion of debate. It is difficult to find relevant material examining the genesis and purpose of special liability provisions in the Commonwealth context.
 The Commonwealth Criminal Code ‘Guide to Practitioners’ states the purpose of “special liability provisions” is to relieve the prosecution from the need to prove fault with respect to elements of the offence which establish Commonwealth jurisdiction. The effect of that is extended to the attempt. A number of the offences discussed in the “Guide to Practitioners” contain specific expressions to the effect that it is unnecessary to prove knowledge or belief of a particular element, (usually an element linking the charge to a Commonwealth entity). For example, the offence of receiving under s 132.1(2A) Criminal Code (CW) states “In the prosecution for an offence against subsection (1), it is not necessary to prove that the Defendant knew or believed that the property belonged to a Commonwealth entity”. In my view this is the level of clarity expected to enliven the special liability provisions. In R v Campbell & Baka (No 2), Berman SC DCJ found “special liability provisions” are designed to facilitate proof of subsidiary elements necessary to ground Commonwealth jurisdiction.
 Section 192(4A) of the Criminal Code does not state it is not necessary for the prosecution to prove knowledge or belief of lack of consent. It simply modifies the fault element “reckless”. The fault element “reckless” remains for the completed offence, but not for an attempt. As noted earlier, consent is not a mere “something” in this context.
 Accordingly, I will order the indictment be amended to exclude or “being reckless” from the count of attempt to have sexual intercourse without consent.
Exclusion of Parts of the Record of Conversation - Rulings
 On behalf of the accused exclusion is sought of various parts of record of conversation between the accused and police. This includes apparently non-responsive answers to propositions put to the accused in circumstances where a level of ambiguity may be introduced. The Crown submitted in the context of the accepted meaning of a “confession”, none of the answers sought to be led should be excluded. It was submitted a confession includes inferences from what is said, including apparently non responsive answers. Reliance was placed on R v Doyle, ex parte Attorney-General, confirming an admission must be either a direct admission of guilt; some fact or facts that may tend to show guilt; any statement that could lead to the inference of guilt or would tend to prove it; or explanations or details about the circumstances surrounding the admissions of guilt.
 I accept generally those propositions, however that is subject to other rules of admissibility, in particular relevance and the exercise of the discretion when parts of the confession are clearly prejudicial, with little or no probative value.
 I decline to exclude the question and answers on page 21 of the transcript, where the accused answers “I was drunk”. It potentially qualifies or colours a denial previously made. Although the question is formed by reference to a statement made by another person, clearly that statement is used as the basis for the allegation being put to the accused. The answer is not in my view prejudicial.
 Immediately after the statement “I was drunk”, however, when the allegation from the witness is put again, the conversation lapses into ambiguity and invites speculation from the accused as to an explanation of how a witness would have seen him. It is impossible to know precisely what the accused is referring to, however on one interpretation the answer is highly prejudicial. I exclude all that flows after “We’ll talk about being drunk later” (T21) through to and including “You say “Yes that is true”, what do you mean? What is true?” (T22).
 I agree with the submission that the portion commencing “You say years, months” (T25) through to “Yes, for long time” (T26) should be excluded. There is miscommunication between “four years” and “for years” and an interpretation referencing knowing each other for a “long time” without reference to a relationship. In my view this is confusing, ambiguous and prejudicial with little probative value.
 The part of the record of conversation “You didn’t have your shorts down at all, like around your knees?” and “No”, does not suffer from the same ambiguity notwithstanding the question has been interpreted as “you did not take your shorts down below your knees”; there are other portions of conversation on the same subject matter; it is not clear whether this part refers to the entire alleged episode. In my view the overall context is however clear. It is potentially highly probative for the Crown in the circumstances of this case. I decline to exclude this part of the Record of Interview (T29).
 These reasons will be forwarded to both counsel, noting the trial is to commence 9 July 2012.
 S 192(5) Criminal Code.
 The Queen v Geoffrey Gordon (unreported), 21 June 2011, SCC 2093963, T at 13.
  NSWCCA 90.
 Note also the commentary to this effect in Odgers, ‘Principles of Federal Criminal Law,’ Second Edition at 151.
 Special leave to appeal to the High Court was refused in O’Meara v The Queen  HCA SL6, however the construction of fault elements was not the subject of the special leave application.
 Explanatory Memorandum to Criminal Code Amendment (Criminal Responsibility Reform) Bill (No 2) 2005.
 Eg. s 321S Crimes Act (Vic) states that “the offence of attempt at common law is abolished”.
 The Criminal Code (NT) came into force 1 January 1984.
 See generally the discussion in Hulley v Hill (1993) 69 A Crim R 52 on the abolition of a range of common law doctrines. Section 4 of the Criminal Code “Attempts to commit offences” governs Part II Criminal Code offences. It is the immediate precursor to attempts under Part IIAA, but still applies to offences governed by Part II.
 (2010) 241 CLR 177, French CJ at 209.
 See eg Evans (1987) 48 SASR 35; Khan  1 WLR 813. In New South Wales, as a matter of statutory interpretation the Court has however determined ‘unreasonable mistake’ as incapable of constituting mens rea for attempted sexual assault, even when it is sufficient for the completed offence. WO v Director of Public Prosecutions (NSW)  NSWCCA 275.
 (1987) 48 SASR 35.
 (1992) 175 CLR 495, at 501, (dealing with attempted murder).
 Ian Leader-Elliott, ‘The Commonwealth Criminal Code’, ‘A Guide for Practitioners’ at 237 citing Georgianni (1985) 156 CLR 473 and Knight (above).
 (2005) 157 A Crim R 300.
 In other contexts, it has been held one or more of the formulations of recklessness being put to the jury is sufficient: Banditt v The Queen (2005) 224 CLR 262, although the fault element is recklessness whichever formulation is used.
 At page 22.
 S 43AN(1)(a) Criminal Code.
 S 43AN(2).
 S 43AN(2); s 43AX.
 Specifically provided for in s (1)(a) Criminal Code.
 For example s 174F Driving a motor vehicle causing death or serious harm, is expressly declared to be an offence of strict liability.
 House of Representatives, 24 November 1999, Attorney General Mr Williams, Second Reading speech 12463 – 12467.
 House of Representatives, 9 October 2000, House of Representatives, 21109 – 211119, 11 October 2000, 21304 – 21323.
 Mr Slipper, House of Representatives, 11 October 2011, 21323 – 21334.
 Ian Leader-Elliot, “Framing preparatory inchoate offences in the Criminal Code: The identity crime debacle” (2011) 35 Crim LJ 80 contains an overview of what is available.
 Ian Leader-Elliot, March 2002 at 245-247.
  NSWDC 168.
  2 Qd R 732, citing R v Lindsay  Qd R 386.