4.1 Physical elements

The list of physical elements which comprise the Code definition of an “offence” is exhaustive. If an element of an offence does not relate to fault it is, necessarily, conduct, circumstance or result. The permissive “may” indicates that there may be offences which include neither circumstances nor results among their defining elements. Examples can be found among the offences of threatening to cause harm, proposed in Model Criminal Code - Ch 5: Non Fatal Offences Against the Person.¹⁸ These offences are not defined by reference to circumstances which accompany, or results which follow the act of threatening another. They are crimes of conduct alone. Though offences of this kind can be found in state or territorial law, they will be rare in the federal offences.  The limits on Commonwealth legislative power imposed  by the Constitution or by convention will usually require federal offences to specify some link of circumstance or consequence between the act of the offender and a constitutionally recognised Commonwealth interest. So, for example, the Code offence of threatening harm, unlike its Model Criminal Code counterpart, does specify a limiting circumstance. The offence is only committed if the person threatened is a Commonwealth official¹⁹ -  that being the circumstantial element of the offence “in which” the conduct of threatening another occurs.

The quoted words, from Part 2.6 – Proof of Criminal Responsibility, distinguish between physical elements on the one hand and on the other, defences, exceptions, exemptions, excuses, qualifications and justifications [hereafter “defences or exceptions”]. The distinction is important for two reasons:

1. Presumptiverules requiring fault have no application to defences or exceptions: They only apply to the physical elements of an offence:

5.6 Offences that do not specify fault elements;

1. Presumptiverules which require the prosecution to bear the evidential burden have no application to defences or exceptions: The prosecution bears an evidential burden only when physical or fault elements  of an offence are in issue: 13.3 Evidential burden of proof - defence.

The distinction between physical elements and defences or exceptions is obviously of considerable potential importance and, equally obviously, a source of potential difficulty. There are comparatively few guides in Chapter 2 itself to assist in drawing that distinction. Of course there are clear  cases. The general defences, such as reasonable mistake of fact, duress and others, are set out in Part 2.3 – Circumstances in which there is no criminal responsibility. Absence of a defence is not an element of an offence. But Chapter 2 is not exhaustive in its statement of defences. More specialised defences are frequently found in Commonwealth offences. Moreover, the differences among defences, exceptions and physical elements of an offence can be contentious. If legislation allows a defendant who has a “reasonable excuse” to escape liability,²⁰ is that a defence, an exception, or a defining element of the offence? Is consent a defence or exception in section 132.8 Dishonest taking or retention of property or is absence of consent a physical element of the offence? Chapter 2 makes no specific provision on issues of this nature, but drafting conventions now followed by Commonwealth Parliamentary Counsel will frequently provide guidance. If a defence is provided it is usually identified as a defence. Exceptions, exemptions and

qualifications are distinguished in many, though not all instances, by a specific direction or indication that the defendant bears the evidentiary burden. Issues of interpretation and characterisation are discussed at greater length   in section 13.3 Evidential burden-defence and the question of fault in relation to defences and exceptions at section 5.6 Offences that do not specify fault elements.

Though “conduct” might seem at first to extend to the acts or omissions of another person, such as the victim of the offence, it is clear that the term refers exclusively to the acts or omissions of the offender.²¹ If acts and omissions of a victim of crime or a third person are elements of an offence, they will be categorised as results or circumstances in which the offender’s  conduct or the results of that conduct occur.

The concept of an “act” is not defined. In jurisdictions which adopted the Griffith Code, jurisprudential dispute over the meaning of that concept has divided courts and scholars for fifty years or more. The Model Criminal Code Officers Committee, which considered the issue at some length, was concerned that definition might risk the creation of new possibilities for confusion or unprofitable dispute, outweighing any possible gain in the resolution of existing controversies.²² Though the Chapter 2 provisions bear some resemblance to s23 of the Griffith Code (Queensland), which has a long and troubled history of conflicting interpretation, the resemblance is distant and caselaw on s23 of the Griffith Code should have no direct bearing on the meaning of “act” in Chapter 2. The definitions of physical elements in Chapter 2 serve a very different set of fault provisions from those in the Griffith Code: see 5.6 - Offences that do not specify fault element. Of the other elements of conduct, “omissions” will only provide a basis for criminal responsibility if the defendant has failed to comply with a legal obligation to act: 4.3 Omissions.  Liability  for a “state of affairs” is an expression derived from the judgement of Brennan  J in He Kaw Teh.²³ The state of being in possession of something is the most frequently encountered example in which a state of affairs counts as a physical element of a crime. Other examples include offences of being found on premises for an unlawful purpose and being drunk and disorderly. Glanville Williams refers to these as instances of “situational liability”;²⁴ elsewhere they are described as “status offences”.²⁵ In general, liability is imposed for the state of affairs because it is both susceptible of proof and because it provides a more or less reliable basis for an adverse inference concerning the offender’s past, present or future conduct. There are many instances in current legislation permitting inferences of commercial intent from possession of trafficable quantities of prohibited drugs.

See note.²⁶  Though circumstances are not defined in the Code, the definition in the Macquarie Dictionary - “condition, with respect to time, place, manner, agent, etc, which accompanies, determines, or modifies a fact or event” - accords with usage in the Code: “facts” and “acts” correspond and an “event” is a happening, occurrence or result. ²⁷

CIRCUMSTANCES WHICH ACCOMPANY CONDUCT AND CIRCUMSTANCES WHICH ACCOMPANY RESULTS

In most situations, circumstantial elements of an offence will accompany the conduct of the offender. Frequently, the incriminating circumstance will be distinguished from the offender’s act in order to distinguish between a fault element which applies to the act and the fault element which applies to the circumstance.   So, for example,   the offence of threatening harm to a Commonwealth public official under s147.2 of the Code is constituted by the act of threatening a person in circumstances where that person is a Commonwealth official. The threat must be intentional, but liability is absolute with respect   to the circumstance - the requirement that the official be employed by the Commonwealth. Circumstantial elements of an offence can  also accompany the results of conduct, rather than the acts, omissions or states of affairs which constitute that conduct. This possibility can be illustrated by an offence aimed at computer hackers, taken from  the Code provisions on cybercrime: Part-10.7 Computer Offences. Section 477.1 prohibits conduct which results in impairment of computer data. As in the previous example of threatening an official, circumstantial limits will be imposed on the offence to keep it within accepted constitutional limits. The data must belong to the Commonwealth or some other specified link to Commonwealth interests must be shown. It is quite possible, in this offence, for the incriminating circumstance to accompany the result of conduct, rather than the conduct itself. Computer offences, unlike offences of threatening or causing physical harm to individuals, will commonly involve action at a distance and substantial delays between the harm and the act which causes the harm. Suppose a computer virus is launched in June and set for activation when an unwitting computer operator types the word “Christmas.” If the Commonwealth data destroyed in the ensuing computer crash did not come into existence until October and damage occurred on December 25, the circumstantial element that it was Commonwealth data which was destroyed does not accompany the hacker’s conduct, which occurred six months previously. It is not a circumstance “in which conduct occurs” but, rather, a circumstance “in which a result occurs”.

Though Chapter 2 has nothing to say on the topic of causation, since applications of the concept are practically confined to particular offences involving damage or injury, a standard definition has been employed throughout the Code. A typical instance occurs in Part 7.8 – Causing harm to and impersonation and obstruction of, Commonwealth public officials. Section 146.2, which deals with causing harm to Commonwealth official, states  that “a person’s conduct is taken to cause harm if it substantially contributes to harm.” The Code adopts the same definition of causation in Part 10.7 Computer Offences.²⁸ It is a restatement of a principle of Australian common law which would be implied in any event, without specific statutory provision.

It is evident from the definitions of “intention” (s5.2); “knowledge” (s5.3); “recklessness” (s5.4) and “negligence” (s5.5) that the “results” of conduct may include anticipated results as well as actual results and anticipated circumstances as well as actual circumstances. These extensions of the definitions to include fault relative to future anticipated events and circumstances are of importance in a range of offences which impose liability for offences of recklessly  endangering  property  or  persons.²⁹  Liability can be imposed for recklessness with respect to a risk that a result or circumstance will eventuate. The offences involving unauthorised damage to computer data take this form.³⁰ The offence extends to unauthorised modification of data by a person who is reckless with respect to the risk that access to data or the operation of data will be impaired.³¹

17. Consider, for example, instances of absolute liability for a state of affairs. The decision of the English Court of Criminal Appeal in Larsonneur (1933) 24 Crim App R 74 enunciated what is perhaps, the nearest example. Discussed: Lanham, “Larsonneur Revisited” [1976] Crim LR 276; Doegar, “Strict Liability in Criminal Law and Larsonneur Reassessed” [1998] Crim LR 791; Correspondence, [1999] Crim LR 100, JC Smith, R Doegar.

18. MCC - Ch5: 5.1.20 - Threat to kill; 5.1.21 - Threat to cause serious harm.

19. Criminal Code Act 1995, s147.2 - Threatening to cause harm to a Commonwealth public official

20. Frequent use is made of “reasonable excuse” in defining the scope of Commonwealth offences. The Migration Act 1958 (Cth) as amended by the Migration Legislation Amendment (Application of Criminal Code) Act 2001 (Cth) includes many instances.

21. It is implicit in the Code that physical elements and fault elements are restricted in application to the conduct of the offender and the circumstances and results of the offender’s conduct. The restriction is obvious in the case of fault elements. The “physical elements” of crime, which comprise “conduct”, “circumstances” and “results” refer to: (1) physical elements for which a fault element is specified (Ch 2 s3.1); (2) physical elements for which a fault element is implied by the Code (Ch 2 s5.6) and (3) physical elements for which strict or absolute liability is imposed (Ch 2 ss6.1, 6.2). The restriction is implied in the case a physical elements. Since all applications of the terminology of “physical elements” involve culpability for a criminal offence, it follows that the term ‘conduct’ is restricted to the defendant’s conduct and has no application to the behaviour of victims or other innocents.

22. MCC - Chapter 2: General Principles of Criminal Responsibility, Final Report 1992, 9-13. 23 (1985)

23. A Crim R 203, 233.

24. G Williams, Textbook of Criminal Law (2 ed, 1983) 156-158.

25. B Fisse, Howard’s Criminal Law (1990) 11-12. Status offences are notorious for the injustice which may be involved when liability is imposed for a state of affairs over which the offender had no control. The case of Larsonneur (1933) 24 Crim App R 774, is the most frequently cited example. Under s4.2, conduct cannot be a physical element of crime unless it is voluntary. In cases where liability is imposed for a state of affairs, no liability is incurred unless the state of affairs “is one over which the person is capable of exercising control”.

26. Section 4.1(1) once defined “circumstance” more narrowly as “a circumstance in which conduct occurs”. The definition was amended to its present form by the Cybercrime Act 2001 (Cth), Sched- ule 1, s3.

27. Compare Queensland Criminal Code 1899, s23 : “…an event which occurs by accident”.

28. CC s476.2 Meaning of unauthorised access, modification or impairment.

29. See, for familiar examples involving risks to persons, Model Criminal Code – Chapter 5: Offences Against the Person, Division 7 – Endangerment.

30. CC Ch 10 National Infrastructure, Part 10.7 – Computer offences.

31. See CC s477.2 Unauthorised modification of data to cause impairment.