Difference between revisions of "Zimbabwe Criminal Code"
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| − | + | CRIMINAL LAW (CODIFICATION AND REFORM) ACT [CHAPTER 9:23]Act 23/2004 | |
| − | + | '''ACT''' | |
| + | To consolidate and amend the criminal law of Zimbabwe; to amend the Interpretation Act [Chapter 1:01], the Burial and Cremation Act [Chapter 5:03], the Customary Marriages Act [Chapter 5:07], the Marriage Act [Chapter 5:11], the Magistrates Court Act [Chapter 7:10], and the Prisons Act [Chapter 7:11]; to repeal the Aircraft (Offences) Act [Chapter 9:01] and the Concealment of Birth Act [Chapter 9:04]; to amend the Criminal Procedure and Evidence Act [Chapter 9:07]; to repeal Infanticide Act [Chapter 9:12] and the Miscellaneous Offences Act [Chapter 9:15]; to amend the Prevention of Corruption Act [Chapter 9:16], and the Stock Theft Act [Chapter 9:18]; to repeal the Witchcraft Suppression Act [Chapter 9:19] and the Sexual Offences Act [Chapter 9:21]; to amend the Anti-Corruption Commission Act [Chapter 9:22], the Public Order and Security Act [Chapter 11:17], the Police Act [Chapter 11:10], the Inland Waters Shipping Act [Chapter 13:06], the Tourism Act [Chapter 14:20], the Dangerous Drugs Act [Chapter 15:02], to amend the Medicines and Allied Substances Control Act [Chapter 15:03]; the Public Health Act [Chapter 15:09], the Termination of Pregnancy Act [Chapter 15:10], the Housing and Building Act [Chapter 22:07] and the Mental Health Act, 1996; and to provide for matters connected with or incidental to the foregoing. | ||
| − | + | WHEREAS section 18 of the Constitution provides for certain fundamental principles of our criminal justice system including, in particular, the following:? | |
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| − | + | "18.(2) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. | |
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| − | + | (3) Every person who is charged with a criminal | |
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| − | + | (a) shall be presumed to be innocent until he is proved or has pleaded guilty; | |
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(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged; | (b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged; | ||
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and, except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence. | and, except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence. | ||
| − | + | ||
| + | (5) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed. | ||
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| − | + | ||
| + | (8) No person who is tried for a criminal offence shall be compelled to give evidence at the trial."; | ||
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AND WHEREAS it is desirable to codify and, where necessary, reform the common criminal law of Zimbabwe? | AND WHEREAS it is desirable to codify and, where necessary, reform the common criminal law of Zimbabwe? | ||
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(a) in conformity with the fundamental principles set out in the Constitution and other fundamental principles developed over time by our criminal justice system; and | (a) in conformity with the fundamental principles set out in the Constitution and other fundamental principles developed over time by our criminal justice system; and | ||
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(b) in order to set out in a concise and accessible form what conduct our criminal justice system forbids and punishes and what defences can be raised to criminal charges; | (b) in order to set out in a concise and accessible form what conduct our criminal justice system forbids and punishes and what defences can be raised to criminal charges; | ||
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NOW, THEREFORE, be it enacted by the President and the Parliament of Zimbabwe as follows:? | NOW, THEREFORE, be it enacted by the President and the Parliament of Zimbabwe as follows:? | ||
| − | CHAPTER I | + | |
| − | PRELIMINARY | + | == CHAPTER I == |
| − | 1 Short title and date of commencement | + | |
| + | ===PRELIMINARY=== | ||
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| + | '''1 Short title and date of commencement''' | ||
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(1) Subject to subsection (2), this Act may be cited as the Criminal Law (Codification and Reform) Act [Chapter 9:23], and is hereinafter referred to as "this Code". | (1) Subject to subsection (2), this Act may be cited as the Criminal Law (Codification and Reform) Act [Chapter 9:23], and is hereinafter referred to as "this Code". | ||
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(2) References in this Act to "this Code" and in any other enactment to "the Criminal Law Code" shall be construed as references to this Act. | (2) References in this Act to "this Code" and in any other enactment to "the Criminal Law Code" shall be construed as references to this Act. | ||
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(3) This Code shall come into operation on a date to be fixed by the President by notice in a statutory instrument. | (3) This Code shall come into operation on a date to be fixed by the President by notice in a statutory instrument. | ||
| − | 2 Interpretation | + | |
| + | '''2 Interpretation''' | ||
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(1) In this Code? | (1) In this Code? | ||
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"accessory", when used in relation to a crime, has the meaning given to it by section two hundred and five; | "accessory", when used in relation to a crime, has the meaning given to it by section two hundred and five; | ||
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"alternatively" and "concurrently", in relation to the charging of a person with two or more crimes, shall be construed in accordance with section two hundred and seventy-nine; | "alternatively" and "concurrently", in relation to the charging of a person with two or more crimes, shall be construed in accordance with section two hundred and seventy-nine; | ||
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"accomplice", when used in relation to a crime, has the meaning given to it by section one hundred and ninety-five; | "accomplice", when used in relation to a crime, has the meaning given to it by section one hundred and ninety-five; | ||
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"accused" means a person accused of committing a crime; | "accused" means a person accused of committing a crime; | ||
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"actual perpetrator" has the meaning given to it by section one hundred and ninety-five; | "actual perpetrator" has the meaning given to it by section one hundred and ninety-five; | ||
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"cause", when used in relation to a consequence ensuing from conduct, means that the conduct has caused the consequence as provided in section eleven; | "cause", when used in relation to a consequence ensuing from conduct, means that the conduct has caused the consequence as provided in section eleven; | ||
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"conduct" includes an act or omission; | "conduct" includes an act or omission; | ||
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"court" means? | "court" means? | ||
(a) the Supreme Court; or | (a) the Supreme Court; or | ||
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(b) the High Court; or | (b) the High Court; or | ||
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(c) a magistrates court; or | (c) a magistrates court; or | ||
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(d) a local court constituted in terms of the Customary Law and Local Courts Act [Chapter 7:05]; or | (d) a local court constituted in terms of the Customary Law and Local Courts Act [Chapter 7:05]; or | ||
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(e) any other court or tribunal; | (e) any other court or tribunal; | ||
| − | + | ||
| + | whichever is hearing or has jurisdiction to hear the matter concerned; | ||
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"crime" means any conduct punishable by this Code or as a criminal offence in any other enactment; | "crime" means any conduct punishable by this Code or as a criminal offence in any other enactment; | ||
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"fixed date" means the date fixed in terms of subsection (3) of section one as the date of commencement of this Code; | "fixed date" means the date fixed in terms of subsection (3) of section one as the date of commencement of this Code; | ||
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"intend", when used in relation to any crime or conduct, means that intention is an essential element of that crime or conduct as provided in section thirteen; | "intend", when used in relation to any crime or conduct, means that intention is an essential element of that crime or conduct as provided in section thirteen; | ||
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"judicial officer" means a judge, president, magistrate, presiding officer or other person presiding over a court or tribunal; | "judicial officer" means a judge, president, magistrate, presiding officer or other person presiding over a court or tribunal; | ||
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"know", when used in relation to any crime or conduct, means that knowledge of the relevant fact or circumstance is an essential element of that crime or conduct as provided in section fourteen; | "know", when used in relation to any crime or conduct, means that knowledge of the relevant fact or circumstance is an essential element of that crime or conduct as provided in section fourteen; | ||
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"level", when used in relation to a fine, means the appropriate level on the standard scale; | "level", when used in relation to a fine, means the appropriate level on the standard scale; | ||
| + | |||
"Minister" means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may, from time to time, assign the administration of this Code; | "Minister" means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may, from time to time, assign the administration of this Code; | ||
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"marriage" means a marriage solemnised under the Marriage Act [Chapter 5:11] or the Customary Marriages Act [Chapter 5:07], or an unregistered customary law marriage, and the words "husband", "spouse" and "wife" shall be construed accordingly; | "marriage" means a marriage solemnised under the Marriage Act [Chapter 5:11] or the Customary Marriages Act [Chapter 5:07], or an unregistered customary law marriage, and the words "husband", "spouse" and "wife" shall be construed accordingly; | ||
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"person", in relation to a person against whose property or other interests a crime is committed, includes the State; | "person", in relation to a person against whose property or other interests a crime is committed, includes the State; | ||
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"police" means the Police Force or a police officer; | "police" means the Police Force or a police officer; | ||
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"police officer" includes a Police Constabulary member or a special constable as defined in section 2 of the Police Act [Chapter 11:10]; | "police officer" includes a Police Constabulary member or a special constable as defined in section 2 of the Police Act [Chapter 11:10]; | ||
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"realise", when used in connection with the existence or otherwise of a real risk or possibility in relation to any crime or conduct, means that realisation of a real risk or possibility is an essential element of that crime or conduct, as provided in section fifteen; | "realise", when used in connection with the existence or otherwise of a real risk or possibility in relation to any crime or conduct, means that realisation of a real risk or possibility is an essential element of that crime or conduct, as provided in section fifteen; | ||
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"standard scale" means the standard scale of fines referred to in section two hundred and eighty and the First Schedule; | "standard scale" means the standard scale of fines referred to in section two hundred and eighty and the First Schedule; | ||
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"unregistered customary law marriage" means a marriage celebrated according to customary law but not solemnised in terms of the Customary Marriages Act [Chapter 5:07]. | "unregistered customary law marriage" means a marriage celebrated according to customary law but not solemnised in terms of the Customary Marriages Act [Chapter 5:07]. | ||
| + | |||
(2) A reference in this Code or any other enactment to any of the crimes mentioned in the first column of the Second Schedule shall be construed as referring to those crimes as defined in the provisions of this Code mentioned opposite thereto in the second column. | (2) A reference in this Code or any other enactment to any of the crimes mentioned in the first column of the Second Schedule shall be construed as referring to those crimes as defined in the provisions of this Code mentioned opposite thereto in the second column. | ||
| + | |||
(3) Where the determination of the age of a person is relevant for the purposes of this Code, a person shall be deemed to have attained a specified age on the commencement of the relevant anniversary of the day of his or her birth. | (3) Where the determination of the age of a person is relevant for the purposes of this Code, a person shall be deemed to have attained a specified age on the commencement of the relevant anniversary of the day of his or her birth. | ||
| − | 3 Roman-Dutch criminal law no longer to apply | + | |
| + | '''3 Roman-Dutch criminal law no longer to apply''' | ||
| + | |||
(1) The non-statutory Roman-Dutch criminal law in force in the Colony of the Cape of Good Hope on the 10th June, 1891, as subsequently modified in Zimbabwe, shall no longer apply within Zimbabwe to the extent that this Code expressly or impliedly enacts, re-enacts, amends, modifies or repeals that law. | (1) The non-statutory Roman-Dutch criminal law in force in the Colony of the Cape of Good Hope on the 10th June, 1891, as subsequently modified in Zimbabwe, shall no longer apply within Zimbabwe to the extent that this Code expressly or impliedly enacts, re-enacts, amends, modifies or repeals that law. | ||
| + | |||
(2) Subsection (1) shall not prevent a court, when interpreting any provision of this Code, from obtaining guidance from judicial decisions and legal writings on relevant aspects of? | (2) Subsection (1) shall not prevent a court, when interpreting any provision of this Code, from obtaining guidance from judicial decisions and legal writings on relevant aspects of? | ||
| + | |||
(a) the criminal law referred to in subsection (1); or | (a) the criminal law referred to in subsection (1); or | ||
| + | |||
(b) the criminal law that is or was in force in any country other than Zimbabwe. | (b) the criminal law that is or was in force in any country other than Zimbabwe. | ||
| − | 4 Application of Code to other enactments | + | |
| + | '''4 Application of Code to other enactments''' | ||
| + | |||
(1) Subject to subsection (2), nothing in this Code shall affect the liability, trial and punishment of any person for a crime in terms of any other enactment. | (1) Subject to subsection (2), nothing in this Code shall affect the liability, trial and punishment of any person for a crime in terms of any other enactment. | ||
| + | |||
(2) Unless otherwise expressly provided in the enactment concerned, section five and Chapters II and XII to XVI of this Code shall apply to the determination of criminal liability of a person in terms of any other enactment. | (2) Unless otherwise expressly provided in the enactment concerned, section five and Chapters II and XII to XVI of this Code shall apply to the determination of criminal liability of a person in terms of any other enactment. | ||
| − | 5 Territoriality of crimes | + | |
| + | '''5 Territoriality of crimes''' | ||
| + | |||
(1) A person may be tried, convicted and punished for a crime, whether in terms of this Code or any other enactment, where the crime or an essential element of the crime was? | (1) A person may be tried, convicted and punished for a crime, whether in terms of this Code or any other enactment, where the crime or an essential element of the crime was? | ||
| + | |||
(a) committed wholly inside Zimbabwe; or | (a) committed wholly inside Zimbabwe; or | ||
| + | |||
(b) committed partly outside Zimbabwe, if the conduct that completed the crime took place inside Zimbabwe; or | (b) committed partly outside Zimbabwe, if the conduct that completed the crime took place inside Zimbabwe; or | ||
| + | |||
(c) committed wholly or partly outside Zimbabwe, if the crime? | (c) committed wholly or partly outside Zimbabwe, if the crime? | ||
| + | |||
(i) is a crime against public security in Zimbabwe or against the safety of the State of Zimbabwe; or | (i) is a crime against public security in Zimbabwe or against the safety of the State of Zimbabwe; or | ||
| + | |||
(ii) is a crime which? | (ii) is a crime which? | ||
| + | |||
A. has produced a harmful effect in Zimbabwe; or | A. has produced a harmful effect in Zimbabwe; or | ||
| + | |||
B. was intended to produce a harmful effect in Zimbabwe; or | B. was intended to produce a harmful effect in Zimbabwe; or | ||
| + | |||
C. was committed with the realisation that there was a real risk or possibility that it might produce a harmful effect in Zimbabwe. | C. was committed with the realisation that there was a real risk or possibility that it might produce a harmful effect in Zimbabwe. | ||
| + | |||
(2) This section does not limit the effect of any enactment which? | (2) This section does not limit the effect of any enactment which? | ||
| + | |||
(a) regulates the territorial jurisdiction of any court; or | (a) regulates the territorial jurisdiction of any court; or | ||
| + | |||
(b) makes special provision for the trial, conviction or punishment of particular extra-territorial crimes. | (b) makes special provision for the trial, conviction or punishment of particular extra-territorial crimes. | ||
| − | CHAPTER II | + | |
| − | ELEMENTS OF CRIMINAL LIABILITY | + | == CHAPTER II == |
| − | PART I | + | |
| − | CRIMINAL CAPACITY | + | ===ELEMENTS OF CRIMINAL LIABILITY=== |
| − | 6 Children under seven years of age not criminally liable | + | |
| + | '''PART I''' | ||
| + | |||
| + | '''CRIMINAL CAPACITY''' | ||
| + | |||
| + | '''6 Children under seven years of age not criminally liable''' | ||
| + | |||
A child below the age of seven years shall be deemed to lack criminal capacity and shall not be tried for or convicted of any crime which he or she is alleged to have committed before attaining that age. | A child below the age of seven years shall be deemed to lack criminal capacity and shall not be tried for or convicted of any crime which he or she is alleged to have committed before attaining that age. | ||
| − | 7 Criminal capacity of children between seven and fourteen years of age | + | |
| + | '''7 Criminal capacity of children between seven and fourteen years of age''' | ||
| + | |||
A child who is of or over the age of seven years but below the age of fourteen years at the time of the conduct constituting any crime which he or she is alleged to have committed shall be presumed, unless the contrary is proved beyond a reasonable doubt? | A child who is of or over the age of seven years but below the age of fourteen years at the time of the conduct constituting any crime which he or she is alleged to have committed shall be presumed, unless the contrary is proved beyond a reasonable doubt? | ||
| + | |||
(a) to lack the capacity to form the intention necessary to commit the crime; or | (a) to lack the capacity to form the intention necessary to commit the crime; or | ||
| + | |||
(b) where negligence is an element of the crime concerned, to lack the capacity to behave in the way that a reasonable adult would have behaved in the circumstances. | (b) where negligence is an element of the crime concerned, to lack the capacity to behave in the way that a reasonable adult would have behaved in the circumstances. | ||
| − | 8 No presumption of criminal incapacity for persons over the age of fourteen years | + | |
| + | '''8 No presumption of criminal incapacity for persons over the age of fourteen years''' | ||
| + | |||
For the avoidance of doubt it is declared that no person who is of or over the age of fourteen years shall be presumed to lack the capacity to form the necessary intention to commit any crime or, where negligence is an element of the crime concerned, to behave in the way that a reasonable person would have behaved in the circumstances of the crime. | For the avoidance of doubt it is declared that no person who is of or over the age of fourteen years shall be presumed to lack the capacity to form the necessary intention to commit any crime or, where negligence is an element of the crime concerned, to behave in the way that a reasonable person would have behaved in the circumstances of the crime. | ||
| − | PART II | + | |
| − | CRIMINAL CONDUCT | + | '''PART II''' |
| − | 9 Liability for criminal conduct | + | |
| + | '''CRIMINAL CONDUCT''' | ||
| + | |||
| + | '''9 Liability for criminal conduct''' | ||
| + | |||
A person shall not be guilty of or liable to be punished for a crime unless? | A person shall not be guilty of or liable to be punished for a crime unless? | ||
| − | + | ||
| − | + | (a) the crime is defined by this Code or any other enactment; and | |
| − | + | ||
| − | + | (b) the person committed the crime or was a party to its commission as provided in this Code or in the enactment concerned; and | |
| − | + | ||
| − | 10 Criminal conduct may consist of acts or omissions | + | (c) his or her liability is based upon voluntary conduct; and |
| + | |||
| + | (d) subject to subsection (5) of section seventeen, the person engaged in the conduct constituting the crime with any of the blameworthy states of mind referred to in sections thirteen to sixteen, as this Code or any other enactment may require; and | ||
| + | |||
| + | (e) his or her liability is based upon unlawful conduct, that is, upon conduct for which there is no lawful excuse affording that person a complete defence to the criminal charge, whether in terms of Chapter XIV or otherwise. | ||
| + | |||
| + | '''10 Criminal conduct may consist of acts or omissions''' | ||
| + | |||
(1) Criminal conduct may consist of either an act or an omission. | (1) Criminal conduct may consist of either an act or an omission. | ||
| + | |||
(2) A person shall not be held criminally liable for an omission nor shall he or she be guilty of the crime to which the omission relates unless? | (2) A person shall not be held criminally liable for an omission nor shall he or she be guilty of the crime to which the omission relates unless? | ||
| + | |||
(a) the crime for which the person is held liable is defined in such a way as to render criminal his or her failure to act; or | (a) the crime for which the person is held liable is defined in such a way as to render criminal his or her failure to act; or | ||
| + | |||
(b) the person had a legal duty to act positively arising from? | (b) the person had a legal duty to act positively arising from? | ||
| + | |||
(i) the existence of a protective or family relationship between himself or herself and another person which required him or her to protect the life, safety or any legal interest of that other person; or | (i) the existence of a protective or family relationship between himself or herself and another person which required him or her to protect the life, safety or any legal interest of that other person; or | ||
| + | |||
(ii) the creation by the person's prior conduct of a situation in which another person's life, safety or legal interest was or might be endangered; or | (ii) the creation by the person's prior conduct of a situation in which another person's life, safety or legal interest was or might be endangered; or | ||
| + | |||
(iii) his or her assuming control, by contract or otherwise, over a situation, whether brought about by him or her or not, in which another person's life, safety or legal interest was or might be endangered; or | (iii) his or her assuming control, by contract or otherwise, over a situation, whether brought about by him or her or not, in which another person's life, safety or legal interest was or might be endangered; or | ||
| + | |||
(iv) his or her holding a public or like office. | (iv) his or her holding a public or like office. | ||
| − | 11 Causation | + | |
| + | '''11 Causation''' | ||
| + | |||
(1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence. | (1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence. | ||
| + | |||
(2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct? | (2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct? | ||
| + | |||
(a) is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and | (a) is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and | ||
| + | |||
(b) is the legal cause of the consequence, that is, the consequence? | (b) is the legal cause of the consequence, that is, the consequence? | ||
| + | |||
(i) was a reasonably foreseeable consequence of his or her conduct; or | (i) was a reasonably foreseeable consequence of his or her conduct; or | ||
| + | |||
(ii) was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct. | (ii) was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct. | ||
| − | PART III | + | |
| − | STATES OF MIND | + | '''PART III''' |
| − | 12 Meaning of subjective state of mind | + | |
| + | '''STATES OF MIND''' | ||
| + | |||
| + | '''12 Meaning of subjective state of mind''' | ||
| + | |||
For the purposes of this Part, a subjective test for a state of mind is a test whereby a court decides whether or not the person concerned actually possessed that state of mind at the relevant time, taking into account all relevant factors that may have influenced that person's state of mind. | For the purposes of this Part, a subjective test for a state of mind is a test whereby a court decides whether or not the person concerned actually possessed that state of mind at the relevant time, taking into account all relevant factors that may have influenced that person's state of mind. | ||
| − | 13 Intention | + | |
| + | '''13 Intention''' | ||
| + | |||
(1) Where intention is an element of any crime, the test is subjective and is whether or not the person whose conduct is in issue intended to engage in the conduct or produce the consequence he or she did. | (1) Where intention is an element of any crime, the test is subjective and is whether or not the person whose conduct is in issue intended to engage in the conduct or produce the consequence he or she did. | ||
| + | |||
(2) Except as may be expressly provided in this Code or in the enactment concerned, the motive or underlying reason for a person's doing or omitting to do any thing, or forming any intention, is immaterial to that person's criminal liability in terms of this Code or any other enactment. | (2) Except as may be expressly provided in this Code or in the enactment concerned, the motive or underlying reason for a person's doing or omitting to do any thing, or forming any intention, is immaterial to that person's criminal liability in terms of this Code or any other enactment. | ||
| − | 14 Knowledge | + | |
| + | '''14 Knowledge''' | ||
| + | |||
Where knowledge is an element of any crime, the test is subjective and is whether or not the person whose conduct is in issue had knowledge of the relevant fact or circumstance. | Where knowledge is an element of any crime, the test is subjective and is whether or not the person whose conduct is in issue had knowledge of the relevant fact or circumstance. | ||
| − | 15 Realisation of real risk or possibility | + | |
| + | '''15 Realisation of real risk or possibility''' | ||
| + | |||
(1) Where realisation of a real risk or possibility is an element of any crime, the test is subjective and consists of the following two components? | (1) Where realisation of a real risk or possibility is an element of any crime, the test is subjective and consists of the following two components? | ||
| + | |||
(a) a component of awareness, that is, whether or not the person whose conduct is in issue realised that there was a risk or possibility, other than a remote risk or possibility, that? | (a) a component of awareness, that is, whether or not the person whose conduct is in issue realised that there was a risk or possibility, other than a remote risk or possibility, that? | ||
| + | |||
(i) his or her conduct might give rise to the relevant consequence; or | (i) his or her conduct might give rise to the relevant consequence; or | ||
| + | |||
(ii) the relevant fact or circumstance existed when he or she engaged in the conduct; | (ii) the relevant fact or circumstance existed when he or she engaged in the conduct; | ||
and | and | ||
| + | |||
(b) a component of recklessness, that is, whether, despite realising the risk or possibility referred to in paragraph (a), the person whose conduct is in issue continued to engage in that conduct. | (b) a component of recklessness, that is, whether, despite realising the risk or possibility referred to in paragraph (a), the person whose conduct is in issue continued to engage in that conduct. | ||
| + | |||
(2) If a crime of which the realisation of a real risk or possibility is an element is so defined in this Code or any other enactment that? | (2) If a crime of which the realisation of a real risk or possibility is an element is so defined in this Code or any other enactment that? | ||
| + | |||
(a) the words describing the component of awareness are omitted, the component of awareness shall be implicit in the word "recklessly" or any derivatives of that word; or | (a) the words describing the component of awareness are omitted, the component of awareness shall be implicit in the word "recklessly" or any derivatives of that word; or | ||
| + | |||
(b) the words describing the component of recklessness are omitted, the component of recklessness shall be implicit in the expression "realise a real risk or possibility" or any derivatives of that expression. | (b) the words describing the component of recklessness are omitted, the component of recklessness shall be implicit in the expression "realise a real risk or possibility" or any derivatives of that expression. | ||
| + | |||
(3) Where, in a prosecution of a crime of which the realisation of a real risk or possibility is an element, the component of awareness is proved, the component of recklessness shall be inferred from the fact that? | (3) Where, in a prosecution of a crime of which the realisation of a real risk or possibility is an element, the component of awareness is proved, the component of recklessness shall be inferred from the fact that? | ||
| + | |||
(a) the relevant consequence actually ensued from the conduct of the accused; or | (a) the relevant consequence actually ensued from the conduct of the accused; or | ||
| + | |||
(b) the relevant fact or circumstance actually existed when the accused engaged in the conduct; | (b) the relevant fact or circumstance actually existed when the accused engaged in the conduct; | ||
| + | |||
as the case may be. | as the case may be. | ||
| + | |||
(4) For the avoidance of doubt it is declared that the test for realisation of a real risk or possibility supersedes the common-law test for constructive or legal intention and its components of foresight of a possibility and recklessness wherever that test was formerly applicable. | (4) For the avoidance of doubt it is declared that the test for realisation of a real risk or possibility supersedes the common-law test for constructive or legal intention and its components of foresight of a possibility and recklessness wherever that test was formerly applicable. | ||
| + | |||
16 Negligence | 16 Negligence | ||
(1) Where negligence is an element of any crime? | (1) Where negligence is an element of any crime? | ||
