3.1 Elements

The Code distinguishes between the commission of an “offence” and the attribution of criminal responsibility for that offence. It envisages, in other words, that there will be offences for which no-one is criminally responsible: the structure of responsibility is binary. If the prosecution establishes the necessary elements, there is an “offence”, though liability may be avoided   by reliance on one of the defences, excuses or exceptions to liability. These are collectively described in Part 2.3 as Circumstances in which there is no criminal responsibility.⁵ It is implicit in the structure of criminal responsibility proposed in the Code that none of the defences requires a person charged with an offence to meet the demanding requirement that conduct be justified before a defence could succeed. Successful reliance on a defence excuses the defendant from criminal responsibility. In the conventional distinction between justification and excuse, conduct is not justified unless it was the “right thing to do in  the  circumstances.”⁶ If conduct is justified, rather than merely excused, it would be inappropriate to speak of an “offence” committed by the accused. Excuses, invoked by an offender who concedes that an offence may have been committed, permit an individualised assessment of responsibility for wrongdoing. The defence of “lawful authority” in section 10.5 makes the point explicitly in its declaration that criminal responsibility is not incurred “if the conduct constituting the offence is justified or excused by or under a law.” The only references to justification in Chapter 2 occur in s5.4, in the definition of recklessness, and in s10.5 Lawful authority, which makes a point of conflating justification and excuse.

The Code reference to “physical” elements corresponds to the more usual term - “external elements”⁷ There is no apparent distinction in meaning between the expressions. The reference to physical elements of an offence should not obscure the reality that those physical elements will frequently include intangible factors.  Physical elements include, in particular, the  state of mind of a victim of crime, a witness or one of the imaginary arbiters of conduct who define standards of wrongdoing in the criminal law. Any of these intangible states of mind or opinion can be a defining physical element of a criminal offence. So, for example, absence of consent is a physical element in a number of the property offences in Chapter 7 - The proper administration of Government. In common law rape and its statutory variants, the issue of consent is said to involve the victim’s “state of mind” at the time of the offence.⁸ In complicity, a principal offender’s state of mind is a physical element when the guilt of an accomplice falls to be considered.⁹ Similarly,  the aesthetic or moral reactions of “ordinary decent people”, which define indecency at common law, are physical elements of offences involving indecent conduct.¹⁰ Physical elements of offences will also include a varied host of intangibles, such as ownership of property, marital status and absence of authorisation or entitlement in cybercrime.

The Code term, “fault elements” displaces the uncertainties of common law references to “mens rea.” It is equivalent in meaning to the commonly employed textbook reference to the “mental element” in crime though “fault” is more accurately descriptive. Instances of criminal negligence will often involve circumstances in which the fault of the offender is to be found precisely in the complete absence of anything that could be described as a state of mind: the reference to “fault” is more inclusive in its implied reference

to the blameworthiness of conduct which violates standards of appropriate behaviour.¹¹ A degree of strain or arbitrariness is inevitable when the elements of an offence must be divided between categories of physical and fault elements. The departure from appropriate standards of care which constitutes negligence and the absence of justification for risk which is necessary for recklessness could, perhaps, have been formulated as physical elements of offences. Recklessness, in particular, is a compound concept, which joins a state of mind to a departure from acceptable standards of conduct: 5.4 Recklessness.

Of course, the Code is explicit and conclusive in its characterisation of recklessness and negligence as fault elements: 5.1 Fault elements. The point is of more than merely theoretical interest, however, in the analysis of other compound concepts. Dishonesty, as defined in Chapters 7 and 10 of the Code, requires proof of a departure from the standards of ordinary people, coupled with knowledge that ordinary people would consider the conduct dishonest.¹² Though dishonesty is often described as a “fault element” it is, in fact, a compound of the fault element of knowledge coupled with a physical element of departure from ordinary standards. This characterisation of dishonesty has significant consequences in the analysis of corporate criminal liability, where the issue is discussed at greater length: 12.3-K.

The Code treats strict liability and absolute liability alike as instances of liability “without fault”: 6.1 Strict liability; 6.2 Absolute liability. Neither strict nor absolute liability requires proof of intention, knowledge, recklessness or negligence. Common law authorities are divided on the question whether offences of strict liability, which do permit a defence of reasonable mistake  of fact to defeat criminal liability, must be taken to require proof of “mens rea”. Brennan J, the most prominent judicial proponent of the view that strict liability offences do require proof of common law mens rea, argued that the defence of reasonable mistake of fact could only be understood as a denial of mens rea.¹³ The Code provisions in Division 6 take the opposite view. They classify strict and absolute liability, with blunt and explicit precision, as liability without fault.

Most offences which require proof of fault will distinguish among physical elements those which require proof of intention as distinct from knowledge, recklessness or negligence. The designation of fault elements may be explicit as, for example, in the cybercrime offences in Chapter 10 - National Infrastructure.14 These typically require proof of knowledge that the prohibited conduct is unauthorised, coupled with requirements of intention or recklessness with respect to other physical elements of the offence. When no specific provision is made for fault elements, s5.6 provides statutory presumptions which imply requirements of intention or recklessness: 5.6 Offences that do not specify fault elements.

5. However, Part 2.3 is not exhaustive in its catalogue of conditions which defeat an attribution of criminal responsibility. Many defences and exceptions to criminal responsibility are found else- where in the Code and in other Commonwealth criminal laws.

6. The view that defences which justify should be distinguished from those which merely excuse, draws its most significant support from the work of George Fletcher in two major studies, Rethink- ing Criminal Law (1978) ch10 and A Crime of Self Defence: Bernhard Goetz and the Law on Trial (1988) and numerous journal articles. Among Australian authorities, Stanley Yeo, Compulsion in The Criminal Law (1990) 105-112 presents an extended argument that the distinction is fundamental to an understanding of criminal responsibility. B Fisse, Howard’s Criminal Law (1990) ignores the distinction; E Colvin, Principles of Criminal Law (2nd Ed 1991) 208-211, writing from a Canadian perspective, argues that it is alien to the common law as does JC Smith, Justification and Excuse in the Criminal Law (1989).

7. See Brennan J, in He Taw Teh (1985) 15 A Crim R 203, 233, who attributes the expression to Dixon CJ in Vallance (1961) 108 CLR 56 at 59. See also Fisse, Howard’s Criminal Law (1990) 12.

8. Model Criminal Code: Chapter 5 - Sexual Offences Against the Person, Report 1999, 33, 43: “con- sent should be seen as a positive state of mind”.

9. Chapter 2 – General Principles of Criminal Responsibility, s11.2(a), (b).

10. Harkin (1989) 38 A Crim R 296, 300 per Lee J: conduct is indecent if a “respectable” or “right- thinking” or “right-minded” or “decent-minded” person would take it to be indecent.

11. Fisse, Howard’s Criminal Law (1990) 12.

12. CC 130.3 Dishonesty; 470.2 Dishonesty.

13. He Kaw Teh (1985) 15 A Crim R 203, 246.