Strict and Absolute Liability

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Offences of strict and absolute liability have no mens rea requirement. The prosecution simply needs to prove that the accused did the actus reus. In offences of strict liability, the accused will have the option of arguing a honest and reasonable mistake of fact (HRMF) (:Proudman v Dayman.[1]):

  • The accused has an evidentiary burden to prove HRMF.
    • If the offence is statutory, it might be a more onerous burden of proof.
  • The following guidelines apply
    • In determining whether there was a 'sufficient' mistake(: State Rail Authority v Hunter District Water Board.[2]):
      1. A positive belief that the act was permissible will constitute HRMF.
      2. The mere absence of a reason to believe that the facts were otherwise will not constitute a HRMF.
      3. The failure to consider whether the facts were otherwise will not constitute a HRMFe.
    • For the argument to succeed, the action had to have been innocent if the state of affairs were indeed as per the mistaken belief: 'Mayer v Marchant.[3]
    • Mistake must of fact, and not law: Von Lieven v Stewart.[4]
    • Due diligence is irrelevant: Australian Iron & Steel Pty Ltd v Environment Protection Authority (No. 2).[5]
  • If the evidentiary burden is satisfied, the prosecution will need to negate the possibility of a HRMF beyond all reasonable doubt in order to convict.

Absolute liability offences do not allow HRMF to be argued.

This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 388-409; 411-417.

Absolute liability

Absolute liability offences are offences in which there is no mens rea requirement - conviction is secured simply by proving the actus reus.

  • Rationale: requiring proof of actual state of mind of accused at the time of actus reus would impose an onerous burden on the prosecution.
  • The imposition of absolute liability would encourage people to take many precautions and care to avoid the prohibited act, given the social ramifications etc.

Because of its severity, absolute liability offences are quite rare.

Strict Liability

[6] Strict liability offences are similar to absolute liability in that there is no mens rea requirement - conviction is secured simply by proving the actus reus. However, in strict liability offences if the defendant argues that s/he was under an honest, reasonable mistake of fact ('HRMF'), the prosecution will need to negate that claim beyond all reasonable doubt to secure a conviction.

  • Defendant has the evidentiary burden to raise HRMF, otherwise there is no mens rea..
  • Prosecution then has to negative this HRMF beyond reasonable doubt. It it thus a persuasive/probative burden on the prosecution.

The 'defence' of a HRMF originated from Proudman v Dayman:[7]

  • Facts: The defendant was charged with having an unlicensed driver drive their car.
  • Held: The defendant is guilty, unless at the time of the driving, he was under an honest and reasonable belief that the driver was licensed.

Naturally, the next issue in this discussion was what will be sufficient to constitute a mistake. This was outlined in State Rail Authority v Hunter District Water Board:[8].

  1. A positive belief that the act was permissible will constitute a mistake.
  2. The absence of a reason to believe that the facts were otherwise will not constitute a mistake.
    • This is because the purpose of this law is to put more responsibility on people to be active and try do the right thing, not hide behind ignorance.
  3. The failure to consider whether the facts were otherwise will not constitute a mistake.

The next sections examine other rules regarding HRMF.

Mistake Must Render the Action 'Innocent'

[9] In order to rely on HRMF, the action had to have been innocent if the state of affairs were indeed as the defendant thought they were: 'Mayer v Marchant.[10]

Due Diligence is Unrelated to HRMF

[11] No amount of due diligence will amount to HRMF - as long as the offence took place, the defendant is guilty unless there is a positive belief that things are a different way than they actually were (mistaken fact): Australian Iron & Steel Pty Ltd v Environment Protection Authority (No. 2).[12]

  • However, legislation can create a 'due diligence defence'. This is not strict liability, but a statutorily created due diligence defence.
  • The burden is then on the accused to prove due diligence was taken, on the balance of probabilities.

Statutory Mistake of Fact Defences

[13] Statutes can create mistake of facts defences. These usually reverse the evidentiary burden to the accused.

  • In such cases, the accused has a complete burden of proof rather than a mere evidentiary burden which the prosecution then has to disprove.
  • This may also lead the court to consider the offence as one of absolute liability subject to that defence: Holloway v Gilport Pty Ltd.[14]

Mistakes of Law

[15] The court does not recognise honest and reasonable mistake of law, however reasonable these may be: Von Lieven v Stewart.[16]

  • Whilst the common law cannot currently provide for a mistake of law defence, statute can create a mistake of law defence if it so wishes.

This was discussed in Ostrowski v Palmer:[17]

  • Facts: the defendant fished in a place prohibited by regulation. Before that, he specifically went and got a list of the prohibited places, and the place he fished at (erroneously) wasn't on it. He claimed that there was a mistake.
  • Held: the mistake was a mistake of law rather than fact. The respondent didn't have an erroneous belief, he knew where he was fishing etc. What he didn't know was that it was illegal to fish there, and that's a legal issue.

And also in Strathfield MC v Elvy:[18]

  • Facts: the defendant was a council member who didn't reveal that he had a monetary interest in a matter considered by the council (development plan close to his property). The defendant claimed that he thought about the issue, and concluded that the plan won't affect his property and therefore there's no reason to disclose.
  • Held: the mistake was the result of 'an error of judgment or opinion upon a mixed question of fact and law'.

Lastly, Pollard v Commonwealth DPP considered mistakes of law which were adopted due to bad legal advice:[19]

  • Facts: the defendant committed past offences and then got legal advice to see whether those were offences of 'dishonesty' which would prohibit him from doing certain things. He was advised that they weren't (it is an extremely gray area). Turns out they were offences of dishonesty, and thus his later actions were also offences.
  • Held: incorrect legal advice is still a mistake of law, which is irrelevant.

Mistakes of Law and Terrorism

[20] In some offences, the words of the statute specifically state that a mistake of law might be an excuse. The common example is theft, where a person is not held accountable if s/he legitimately (though unreasonably) believed that they had a legal right to it.

For some terrorist offences created the Criminal Code (Cth), mistakes of law (ie, that the regulation has not been made) are a valid excuse.

Enforcement of Strict and Absolute Liability Offences

[21] In practice, many strict or absolute liability offences are enforced not by the police and the courts but by specialist agencies (eg, environment or industrial protection etc). However, these agencies don't really take advantage of this 'dilution' of the mens rea requirement, because they rarely actually prosecute.

  • This kind of makes the idea behind making offences strict or absolute liability futile.
  • In some way, the fact that offences are strict or absolute liability gives the accused an advantage:
    • Because of the apparent harshness, the agencies are more reluctant to prosecute.
    • There are no harsher and more lenient penalties according to the amount of fault, because fault is irrelevant.
  • Overall, it inspires the notion that these offences aren't real crimes.

These issues are discussed by Carson:[22]

  • Moral fault still serves as a useful purpose as it ensures that punishment under the Factories Act is not imposed purely retrospective grounds even though the criminal law's traditional concern with mens rea is incorporated into the enforcement process.
  • While the inspectorate's concern with general aspects of "moral fault" further mitigates the harshness of strict liability, it does not reduce conviction and punishment to ritualised vengeance on the part of the state.

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. (1941) 67 CLR 536.
  2. (1992) 65 A Crim R 101.
  3. (1973) 5 SASR 567.
  4. (1990) 21 NSWLR 52.
  5. (1992) 29 NSWLR 497.
  6. Textbook, pp. 388-90.
  7. (1941) 67 CLR 536.
  8. (1992) 65 A Crim R 101.
  9. Textbook, pp. 390-1.
  10. (1973) 5 SASR 567.
  11. Textbook, pp. 390-1.
  12. (1992) 29 NSWLR 497.
  13. Textbook, pp. 392-3.
  14. (1995) 79 Crim R 76.
  15. Textbook, pp. 392-3.
  16. (1990) 21 NSWLR 52.
  17. (2004) 218 CLR 493.
  18. (1992) 25 NSWLR 745.
  19. (1992) 28 NSWLR 659.
  20. Textbook, pp. 394-5.
  21. Textbook, p. 395.
  22. WG Crason, 'Some Sociological Aspects of Strict Liability and the Enforcement of Factory Legislation', (1970) 33 Mod LR in Textbook, pp. 395--7.
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