We typically associate the word ‘criminal’ with things people do and cause; however, many offence provisions concern the surrounding context. Criminalisation based primarily on the circumstances that accompany otherwise mundane actions has proved to be an irresistible convenience in modern statutes. Despite (or perhaps because of) the absence of any need to prove voluntariness or causation, circumstance elements are arguably the most fraught physical element in Australian criminal law.
Like the previous chapters on conduct and results, this chapter’s analysis of circumstance elements first explains why they are problematic. It then sets out the general criminal law’s requirements for circumstances and the main scenarios where a person will not be criminally responsible for them.