Taken in the natural order, these elements are (i) “keeps” and (ii) “room,
office, house or other place”. However, it is easier travelling to first identify a
possible “room, office, house or other place” then to see if the defendant
“keeps” it. By contrast, identifying these elements in the reverse order to this
makes the task of applying law to facts unnecessarily difficult. The point is that
where there is a dependent element and an independent element, list the
independent element before the dependent one.
(4)
Small Size. Make the elements and subelements
as small as possible.
There is no set size for an element so that one version of the elements might
amalgamate into one element what another version treats as three separate
elements. There is, however, a guiding principle: the smaller elements and
subelements are, the easier they are to work with. Think of bite-sized pieces.
(5)
Listing Possibilities. An element may consist of a number of
possibilities. In the example above, an element is that the defendant “keeps” a
“room, office, house or other place” for betting. Here “room,” “office,”
“house,” and “other place” are four possibilities. The defendant has to “keep”
only one of them. So, make this clear when stating the element.
(6)
Disguised Conditional Statement. There is a special case where a rule is
in the form “No person shall do X”. In this form the rule is a disguised
conditional statement. It can be restated in an alternative form as a conditional
statement that has an identical meaning: “If a person does X, the person
commits an offence”. There is an advantage in conceiving the rule in the
second rather than the first form, because the second form clearly displays the
consequences while the first one does not.
Illustration
We can illustrate micro organisation of law by the tort of trespass to land. A
textbook describing trespass might say something like this:
A defendant commits trespass when they intentionally interfere with land to which the plaintiff
has a right of possession and does so without the plaintiff’s permission. A successful defendant
can obtain damages and may, at the court’s discretion, be awarded an injunction. While
trespass protects land from unlawful invasion, land is not confined just to land on the surface. It
also includes some claim to the air space above the surface, some claim to the subsoil, fixtures
(which consist of any items sufficiently affixed to the land) and a possible claim to the middle of
an adjacent stream or road. Land can also exist as strata at common law or under statute.
There are several defences to trespass.
This account is incomplete and selective but it is enough to illustrate the task.
It indicates that trespass has six elements, which in point form consist of land,
possession, interference, intention, permission and defences.
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There are two
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In law, the term defence has two related meanings. A person may defend a
charge or action on the facts by putting forward evidence that indicates that one of
the material facts (a fact that satisfies an element) is not correct. (ii) In the sense in
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