Part 2.2 The elements of an offence

Commonwealth Criminal Code: Guide for practitioners 

Part 2.2 provides the framework and conceptual vocabulary of criminal responsibility under the Code. Six distinct modes of criminal culpability are recognised, ranging from liability for intentional wrongs to absolute liability, which penalises inadvertent wrongdoing and permits no defence of reasonable mistake of fact. These six modes of culpability are deployed by the use of a relatively restricted conceptual vocabulary: intention, knowledge, recklessness, negligence, strict liability and absolute liability.4 Offences that impose liability for intention, knowledge, recklessness, and negligence are said to impose liability for fault, while strict and absolute liability are defined as liability without fault. Most offences are a compound of fault elements and physical elements, though a minority dispense with any requirement of fault: Division 6 – Cases where fault elements are not required

  1. More specialised varieties of fault are recognised in particular Code offences: see Part 7.2 of Chapter 2, Theft and other property offences. In general, however, Code offences utilise the four fault concepts when defining offences.

The Code provides extended definitions for each of the four fault concepts. The definitions vary in the degree to which they depart from common understanding and common usage. The technical terminology of the fault elements depends, however, on the foundation provided by undefined concepts commonly used in the moral evaluation of human behaviour.

Vocabulary of the fault elements

Ordinary language

Defined terminology

 

 

1. fault element

5.1

1. meaning (to do an act)

5.2

1. intention

5.2

2. belief

5.2

2. knowledge

5.3

3. awareness

5.3,5.4

3. recklessness

5.4

 

 

4. negligence

5.5

The vocabulary of physical elements is even more restricted, comprising conduct, circumstances and results of conduct.

Vocabulary of the physical elements

Ordinary language

Defined terminology

1. act

4.1

1. physical element

4.1(1)

2. omission to act

4.1

2. conduct

4.1(2)

3. state of affairs

4.1

 

 

4. circumstance of conduct

4.1

 

 

5. result of conduct

4.1

 

 

Unlike the fault elements, the physical elements are defined without technicality: “act”, “omission”, “circumstance” and “result” derive their meaning from ordinary language. The terminology is intended to provide a flexible and idiomatic means for determining whether the behaviour of an offender matches the statutory description of the criminal offence.

The elements of an offence