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PART IX – STRICT AND ABSOLUTE LIABILITY
I Introduction
A Historical Context
Criminal liability attaches to the commission of a prohibited consequence with a particular mental state. In addition to laws creating offences themselves, laws of criminal liability specify how and in what circumstances responsibility attaches to the commission of an offence. Laws of criminal liability are not offences in themselves, but underlie the interpretation and application of specific offences in criminal trials.
The development of legislation as the dominant criminal and regulatory framework has seen issues of criminal liability arise out of the ambiguous or inconsistent language used to construct statutory offences. Statutes pose problems because they do not always structure criminal liability in terms of prohibited consequences and mental states, and depart from the recognised structure of criminal liability at common law.
The issue underlying these problems of interpretation is whether the legislature has defined an offence that does not require the prosecution to prove the existence of a prohibited mens rea, or whether the requirement lingers implicitly.
By the mid 19 th^ century, offences were increasingly defined by statute. For the past century, Australian criminal law has become decreasingly reliant on the common law. Many offences have been created without a component of mens rea (eg, exceeding a speed limitation). However, delimiting offences that do not require mens rea from those that do can be problematic.
Three main structures of criminal liability are presently recognised by the Australian criminal legal tradition. The High Court in He Kaw Teh created a tripartite division of crimes:
- Crimes of mens rea o Defined by reference to consequences and subjective mental standards o The accused cannot be convicted unless they possess the required mental state (eg, intention or recklessness for murder) or some substitute for it (eg, constructive murder)
- Crimes of strict liability o Defined by reference to the doing of the prohibited conduct or the causing of the prohibited consequences o Prima facie, criminal liability attaches proof that the actus reus has been committed (ie, voluntarily) The prosecution need not prove fault Only the physical elements of the crime are necessary to prove o Defined by Parliament in legislation o A general defence exists ( Proudman v Dayman ): Honest and reasonable mistake of fact is legally available to the accused Where the accused is labouring under an honest and reasonable mistake of fact as to circumstances which, if they existed, would have meant no offence was committed, the accused will not be guilty of the offence The onus is on the defence to raise sufficient evidence to be considered relevant; having done so, the onus shifts to the prosecution to disprove the defence beyond reasonable doubt
Where the accused satisfies their burden of proof (to adduce evidence of a mistake), if the prosecution does not disprove the defence, then the accused will be fully exonerated
- Crimes of absolute liability o Defined by reference to the doing of the prohibited conduct or the causing of the prohibited consequences o The conduct or consequences in and of themselves create criminal liability Of course, the accused can still raise arguments to defeat the actus reus Eg, involuntariness, duress, etc o No defence of honest and reasonable mistake of fact applies o Because of the relative ease with which criminal liability attaches to conduct, these offences are rare
B Theoretical Analysis
Several policy arguments exist in favour of the creation of offences of strict and absolute liability:
- The penalties imposed by such offences are not that severe, so it is an acceptable way to regulate social conduct
- The conduct constituting the actus reus must obviously be voluntary; however, dispensing with mens rea means minimum standards of behaviour can be easily imposed and enforced on thoughtless (or resourceful) individuals
- Justifiable to presume fault: regulatory offences need to set minimum standards for the common good
- Prosecutions under strict liability offences are simplified and more efficient, particularly where they are relatively minor
- It can often be difficult to prove a mental state of knowledge of intention; without strict liability crimes, many offenders would go unpunished
Counter-arguments are also able to be formulated:
- The common law is supposed to punish moral blameworthiness, so punishing conduct alone will corrupt the moral authority of the criminal law o Criminal liability should be based on culpable conduct (not conduct per se) o Rebuttal: someone can still be culpable in being careless of thoughtless (ie, not possessing recognised mens rea) – less culpable, perhaps, but still meriting punishment
- It is better that evil should go unpunished than the morally innocent should suffer o Balancing competing considerations of justice can be a difficult normative (and regulatory/legal) exercise
It is rare for statutes to expressly state the kind of liability being imposed. This is partly because legislators don’t categorise offences in the same way as judges and lawyers, and partly because it is presumed that interpretation should ultimately be left to the courts. Arguably, courts are unsuited to this task:
- Courts are reactive (depend on parties to bring a matter before them)
- Decision-making is ad hoc (any interpretation would occur in the context of a given case and not universally)
- The kind of interpretation being urged by legislators is activist (courts should apply law, not unnecessarily create it)
- A is convicted at trial; the Jury are directed that the offences impose strict liability and do not require mens rea
- An appeal to the Victorian Court of Criminal Appeal is dismissed
Issues:
- The accused appeals to the High Court on two primary issues: o Is s 233B(1)(b) an offence of strict liability or mens rea? o Does s 233B(1)(c) require proof that A was knowingly in possession of the prohibited imports (ie, is it an offence of strict liability or mens rea?)
Reasoning:
- How is the liability imposed by an offence to be classified? o Prima facie, there is a presumption that mens rea is required ( Sherras v De Rutzen ) o The presumption of mens rea that all serious criminal offences carry is not lightly displaced, even if the statute suggests a linguistic requirement of mens rea o In considering whether this presumption is rebutted, several interpretative criteria are to be examined Gibbs CJ and Wilson J utilise the same interpretative criteria to reach different conclusions, showing that some variation in interpretation is unavoidable o If the presumption of mens rea is rebutted then a further common law presumption is raised that the defence of honest and reasonable mistake of fact is available ( Proudman v Dayman ) In determining whether this further presumption is sound, the same interpretive criteria are considered If the further presumption is not rebutted, the offence imposes strict liability - The evidentiary burden falls upon the defendant to adduce evidence of a mistake on the balance of probabilities - The legal burden then falls on the prosecution to disprove the defence beyond reasonable doubt If the further presumption is rebutted, the offence is one of absolute liability - The defence of honest and reasonable mistake of fact is not available
- Majority (per Gibbs CJ): o s 233B(1)(b): critical question is whether knowledge of the nature and possible quality of the act is necessary to establish liability Express words/language of statute - To ‘import’ is a purely physical act; it does not connote a requirement of intention - However, the provisions must be read in light of the general principles of criminal responsibility - ‘Knowingly’ is mentioned in (d) - A presumption of mens rea exists ( Sherras ) and this is not easily overturned by lack of references to mental states by the language of the statute - The statute is ambiguous as to the required mental elements Applying the interpretative criteria, the presumption is not displaced - Whether subject matter ‘truly criminal’? ( Sherras ) - Whether absolute liability would assist enforcement? ( Lim Chin Aik )
o Won’t impede efficiency to require MR – without knowledge, it is difficult to prevent importation where inadvertent o Is compliance impossible?
- Prioritises protection of the individual accused over protection of the community
- Too serious consequences for individual to be strict liability o Exceedingly severe punishment suggests it could not be committed negligently
- Presumption of mens rea not to be displaced under s 233B(1)(b), which is therefore an offence of mens rea The mens rea that is required is as follows:
- ‘Import’ requires knowledge that suitcase contained heroin o s 233B(1)(c): cannot be an offence of absolute liability, because it would be ‘absurdly draconian’ Applies interpretative criteria:
- Presence of statutory defence
- Life imprisonment is a serious penalty – that alone means that liability cannot be imposed without guilty intent
- Subject matter of the statute: a ‘grave social evil’ that undeniably needs to be suppressed
- However, if Parliament really wanted to impose severe penalties for trafficker, why would liability be strict? Usually strict and absolute liability offences attract lesser penalties than mens rea crimes
- These are extremely severe penalties, and Parliament may not want to penalise careless importation Concludes: the offence is a full mens rea offence – ‘possession’ requires knowledge that the defendant knew heroin was in his suitcase Cf environmental pollution by companies, where a strict liability penalty is necessary to prevent laziness or wilful blindness by the offender (typically a company)
- Brennan J: o Elaborates further on the principles of statutory interpretation
- Wilson J (dissenting): o Emphasises the ‘monstrous evils that are intrinsically nefarious’, from which the statute’s purpose is to protect the public o s 233B(1)(b) imposes strict liability: Lacking ‘without reasonable excuse’ doesn’t suggest mens rea If anything, the offence is one of absolute liability In light of the serious penalty, it is strict liability Parliament intended to protect the community from a ‘serious social evil’ The provision would be difficult to enforce without strict liability It would be an enormous evidentiary burden if the Crown had to dismiss beyond reasonable doubt any innocent explanation
Decision:
- Majority (Gibbs CJ, Brennan, Mason, Dawson JJ): o s 233B(1)(b) ‘importation’: presumption of mens rea is not rebutted Burden remains on prosecution to prove that the defendant knew he was bringing narcotic goods into Australia beyond reasonable doubt o s 233B(1)(c) ‘possession’: this is a mens rea offence
II Interpretative Criteria
A Overview
A court will have regard to several criteria in determining whether a crime defined by statute is one of mens rea, strict or absolute liability ( He Kaw Teh ):
- The language of the section creating the offence (and relatedly, the context and history of the statute)
- The subject-matter of the statute
- The seriousness of the consequences for the community of the commission of such crimes
- The seriousness of the consequences for the individual of potential conviction
Whether or not the strong presumption in favour of a requirement of mens rea is displaced is determined by reference to these interpretive criteria, which are said to help in identifying the purpose for which the legislature enacted the prohibition.
Several arguments are commonly put forward in relation to the criteria:
- The capacity of the individual to do anything to observe the law (if they were unable to act differently, the offence is less likely to be one of strict of absolute liability)
- The ‘truly criminal’ nature of the crime created (if a stigma attaches to conviction, the offence is more likely to require mens rea)
- The ease or difficulty with which the section can be enforced (if adducing evidence of the accused’s mental state would be difficult, the offence is less likely to require mens rea)
- The seriousness of the penalty (the more severe the penalty, the more likely it is that mens rea is required)
- The seriousness of the conduct in society (the greater the social problem posed by the conduct of individuals like the accused, the more likely it is that the offence imposes strict or absolutely liability – presumably, in the hope of preventing or stemming the social problem)
If the strong presumption of mens rea is displaced, then the statutory section does not create a mens rea crime. A further question which arises – whether the crime created is one of strict or absolute liability – is resolved by reference to the same criteria. This is a ‘weak presumption’.
If the weak presumption of strict liability is not displaced, then the offence is one of strict liability (to which, as a matter of law, the defence of mistake applies). The prosecution must prove that:
- The accused did the prohibited act or caused the prohibited consequence; and
- The defence of honest and reasonable mistake of fact is not available, because either – (a) the defence is excluded by the terms of the statute; (b) the defence is not so excluded but, on the facts, the accused did not honestly hold the belief; or (c) the defence is not so excluded and the belief was honestly held but, on the facts, the belief was not reasonable; and
- The accused did the prohibited act or caused the prohibited consequence with the required mental element if any is required by the statutory language o Eg, if the section requires knowledge of a fact or circumstance (drug importation cases)
However, if the presumption is displaced, then the crime imposes absolute liability. The prosecution must only prove that:
- The accused committed the prohibited act or caused the prohibited consequence; and
- No defences created by the terms of the statute are available
The extent to which the prosecution will be able to prove these matters depends on the availability and admissibility of relevant evidence and its treatment by the jury.
B The Language of the Statute
1 Words connoting mentality
Where specific mental requirements like ‘knowledge’ of ‘intentionality’ are laid down by the statute, the offence is one of mens rea. However, the absence of such words does not prima facie indicate that the offence is one of strict liability ( Sweet v Parsley ).
Sweet v Parsley (1970) HL:
Facts:
- A is a sub-tenant at a farm house, and she sub-leases rooms to other tenants
- A leaves the farm, but collects rent from her sub-tenants
- Cannabis is subsequently found at the premises
- A is fined ₤25 for an offence against the Dangerous Drugs Act 1965 (UK), which makes it an on offence for a person to be concerned with the management of any premises used for smoking of cannabis: o s 5: ‘If a person – (a) being the occupier of any premises, permits those premises to be used for the purpose of smoking cannabis or cannabis resin or of dealing in cannabis or cannabis resin (whether by sale or otherwise); or (b) is concerned in the management of any premises used for such purpose as aforesaid; o he shall be guilty of an offence against this Act’
- A appeals to the House of Lords
Issue:
- [Though UK courts do not distinguish between crimes of strict and absolute liability, they can be a valuable source of comparative analysis]
- Can A be found guilty of contravening the offence despite having no knowledge of the presence of illicit substances on her premises?
Reasoning:
- Words like ‘knowledge’ or ‘intentionally’ will normally indicate that the offence requires mens rea o However, the lack of such words does not mean the reverse o It is possible to imply a requirement of intention even where it is not mentioned explicitly by the language in which the statutory provision is worded
- Lord Reid: o A was convicted on the basis that the offence was one of strict liability
Lim chin Aik v R (1963) Privy Council:
Facts:
- A stayed in Singapore after orders were made by the government requiring persons of his status to leave
- However, no provision existed requiring the government to notify affected persons of those orders, or to publish or otherwise publicise those orders
- A was convicted of the offence although he was ignorant of the order made with respect to him
Issue:
- Can A be convicted notwithstanding the fact that, not knowing of the decree, he was unable to comply with it?
Reasoning:
- Generally, courts are far more likely to assume that regulatory offences are crimes of strict liability o They impose a lesser penalty o They are the subject of routine prosecution o Eg, Welsh (overloading a trailer)
- However, the consequences of interpreting the offence as one of strict liability must be considered o Would such a mode of criminal responsibility enable the statute to achieve its goals on the facts of the case? o Could the accused have acted so as to comply with the regulation, if it was a strict requirement?
- ‘But it is not enough… merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something that he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulation.’ o Ie, if strict liability isn’t going to prevent the crime, why impose it? o No social utility would be served
Decision:
- As there was nothing A could have done to change his conduct and so observe the regulation, there would be no benefit to the community were this an offence of strict liability; there is no reason for it to be so
- Conviction quashed
Creas ’ case (1 QB 998) makes for an interesting point of contrast. There, the accused served alcohol to a police officer who was on duty, and was convicted of an offence despite not knowing that he was an officer on duty. Arguably, no practical purpose was served by not requiring mens rea to be proved (if the accused did not know of the police officer’s identity, how can a law prohibiting the serving of alcohol to an active law enforcement officer be complied with?), yet the conviction stood.
At any rate, in Lim Chin Aik , the fact that the accused could not have modified their behaviour so as to have complied with the section was a strong indication that a prohibited mental state was required, mitigating against it being a crime of strict liability. A similar consideration is approached from the perspective of ‘luckless victims’ in Welsh v Donnelly and He Kaw Teh.
2 Seriousness of consequences
Where the consequences for the community are particularly serious – as in the case of pollution, which may poison the environment and global ecosystem – an offence is more likely to impose a harsher form of liability. However, this is only one of several interpretative criteria to be weighed in deciding what kind of liability attaches to a statutory offence ( Allen v United Carpet Mills ).
Allen v United Carpet Mills Pty Ltd (1989) Vic SC:
Facts:
- Three persons were charged with offences against the EPA for discharged latex rubber into a creek, severely polluting it
- The relevant provisions read: o s 39(1): ‘A person shall not cause or permit any waters to be polluted so that the physical, chemical or biological condition of the water is to be changed as to make or be reasonably expected to make those waters… (c) harmful or potentially harmful to… fish or other aquatic life… (e) detrimental to any beneficial use made of those waters.’
- A1 was a truck driver delivering the latex to A2, a carpet manufacturing company that used latex in its business
- A1 incorrectly hooked his delivery truck to A2’s tanks, causing latex to spill over. A hosed this spill over down a storm water drain
- A1 pleaded guilty
- A2, which did not authorise or expect A1 to do as he did pleaded no case to answer
- A3, which owned the truck but gave inadequate instruction to A1 on its use, also pleaded no case to answer
Issue:
- Is the offence a crime of strict or absolute liability?
Reasoning:
- In deciding what form of offence s 39 creates, Nathan J applies the 4 interpretative criteria discussed in He Kaw Teh : o The language of the statute Wording does not make any reference to mental state The general style of the section seems to imply at least strict liability – ‘shall not cause or permit’ seems to suggest an objective, consequence- based prohibition – expressed in absolute terms Absolute liability will only be implied if strict liability cannot be inferred due to the specific language of the section Here, there is nothing to suggest only strict liability, so absolute liability is a possibility o The subject matter of the statute Polluting public land There is already an incentive against polluting private land (tortious liability), and a similar disincentive is needed in respect of public lands ‘Design, neglect, or sheer inadvertence’ – not just negligent pollution
- The penalty is solely monetary
- The prohibited conduct may be rendered lawful by licensing
Selectrix Pty Ltd v Andrew Humphrys (2001) Vic SC:
Facts:
- Selectrix imports from the USA 118 cylinders of a gas called FR12, manufactured for use as a refrigerant in car air conditioners
- Selectrix advertises the imported FR12 for sale in Australia in local trade journals
- Selectrix are charged with offences under s 13(1) of the Ozone Protection Act 1989 , which provides that a person (including a corporation): o ‘…must not manufacture, import or export a hydrochlorofluorocarbon... unless the person holds a controlled substances license that allows the person to do so’
- Selectrix does not have a controlled substances license
- At first instance, the Magistrate considers whether s 13 is an offence of mens rea, strict liability or absolute liability, and concludes that it is an offence of strict liability ([7]-[8])
- Stuckey, the Chief Executive Officer of Selectrix, testifies that he thought the gas was ‘ozone friendly’, and that he based this belief on the fact that a competitor (BOC) had advertised the gas as environmentally friendly
- Stuckey says that BOC’s advertisement depicted a frog, and that this indicated the gas was environmentally friendly and contained no HCFCs
- Stuckey reasons that he could rely on BOC’s statement to import and resell FR12 himself
- The Magistrate holds that although the defence of honest and reasonable mistake of fact is available to Selectrix, the company’s mistake (through Stuckey, as CEO) was as to the law, rather than fact (he didn’t think he needed a license )
- However, giving Selectrix the benefit of the doubt in this regard and assuming a mistake of fact had been made, the Magistrate proceeds to consider the availability of the defence
- The Magistrate accepts that Stuckey honestly believed the gas was ‘ozone friendly’, but finds that it is not reasonable to base this belief on the advertisement of a competitor
- This honest but nevertheless negligent or careless mistake means that the company cannot rely on the defence of honest and reasonable mistake of fact
- Selectrix is convicted, fined $4 000 and ordered to pay $4 500 in costs
- Selectix appeals the conviction
Issues:
- Is s 13 an offence of mens rea, strict liability or absolute liability?
- Given the Magistrate treated this as a strict liability offence, should A have been able to rely on the defence of honest and reasonable mistake of fact? o Is Stuckey’s belief that FR12 is not a prohibited import reasonable?
Reasoning:
- Hedigan J: at [13]: o ‘One of the problems in the area is that appellate courts have not all spoken with a single voice and the principles are, of course, capable of application to different contexts and, where applicable, must be applied. Both appellant's and respondent's counsel cited and counter-cited various parts of the judgments of Gibbs CJ, Brennan and Dawson JJ in He Kaw Teh ’
- Was the offence one of mens rea because it involved an act of ‘importing’? o Dawson J in He Kaw Teh : ‘it was virtually impossible to conclude that there was no intention to import at the least the container in which the goods were being
brought in’ – the same could be said here o Gibbs CJ: the offence created in Teh was an extremely serious one; however, importation does not necessarily connote knowledge or intention o ‘Whilst it is true that s 50 of the Customs Act 1901 draws no distinction between the meaning of “import” in relation to goods or narcotic substances, other considerations relating to (i) the subject matter, (ii) purpose of the enactment, (iii) the penalties provided, and (iv) the language of the statute itself, are relevant matters to consider.’ o Thus, perhaps if the offence here was more serious, and the penalty greater, it too would require mens rea However, on the facts it is purely regulatory and the consequence – though important to prevent – is relatively minor on its own ‘It is true to say that it may be a matter of serious and significant debate whether or not it is more dangerous to import ozone depleting substances than importing personally affecting substances such as narcotics. Nothing in the evidence was directed to resolving this debate.’
- What is the nature of the interpretative process? o Tension exists between meeting statutory goals and protecting liberty of the accused: ‘…[T]here is a tension between the legislative objective of dealing with a grave social evil and the principle that the protection of the liberty of the subject commonly involves resistance to the finding of guilt of a breach of the criminal law in the absence of a guilty mind.’ o Current formulations of mens rea balance these competing interests: ‘The requirement of mens rea is at once a reflection of the purpose of the statute and humane protection for persons who unwittingly engage in prohibited conduct ...’
- Was the mistake one of fact or law? o ‘In my view, the mistake in this case was in respect of a mixed fact and law issue. The respondent argued that Mr Stuckey’s evidence carried the matter no further than a belief that the goods were “ozone friendly”. It was put that this was not a mistake as to an exculpatory fact because it was not a mistake as to whether the substance was an HCFC being only a mistake as to the qualities of the substance, eg as to a mistake as to whether heroin was harmful’ o No conclusion is drawn on the matter
- Was the offence actually one of absolute liability? o Subject matter ‘This statute could not be regarded as being other than concerned with the protection of public health and the environment’ (as suggested by s 3 [aims] and the second reading speech) ‘The view of Brennan J [in He Kaw Teh ] was that the purpose of the statute is the surest guide to the mental element required. I conclude that this legislation falls into the category of public safety legislation that is intended to protect all Australians. The potential risk to public health and the environment arising from uncontrolled importation of HCFCs is self-evident.’ o Language Other sections of the Act employed words which might reasonably be regarded as importing mens rea – ‘knowingly’, ‘intentionally’ or ‘without reasonable excuse’ There was a distinct linguistic contrast between s 13 other parts of the Act
o His belief is also supported by the fact that the other cars also accelerated after Snell Rd o He only overtook after he had covered some distance after Snell Rd because of his uncertainty about the speed limit
- On this basis, Grant claims that he made an honest and reasonable mistake of fact
Issue:
- Is the offence one of strict or absolute liability?
Reasoning:
- Magistrate: acquittal o If the offence is one of strict liability, the defence is potentially available o However, if the section creates absolute liability, no defence is available o The Magistrate characterises s 1001 as an offence of strict liability o The accused introduced sufficient evidence to prima facie raise the defence o Kearon, the prosecutor, failed to prove beyond reasonable doubt that the accused was not labouring under an honest and reasonable mistake of fact
- Brooking J: absolute liability o The learned Magistrate was incorrect o Here, there are two kinds of mistake operating: A belief as to the applicable speed limit (G thought it was 110kmh -1) A belief as to the speed he was travelling (an error in the speedometer) o The subject matter and character of the offence makes it seem that Parliament intended absolute liability ‘I think the intention here is that motorists shall at their peril be aware of the applicable speed limit, and shall then at their peril so govern their speed as to keep within it’ o The consequences for the community are serious Road safety has an important effect on public welfare It better serves the enforcement of the Act to be an offence of absolute liability Speeding motor vehicles have become ‘machines of destruction’ Given the routine nature of prosecution, courts cannot be clogged with claims of mistake o The consequences for the individual are minor The severity of the penalty is low There is no stigma attached to conviction It is a summary offence It is therefore highly unlikely to be a strict liability offence
Decision:
- Section 1001 creates an offence of absolute liability
III Defences
A Honest and Reasonable Mistake of Fact
1 Definition
Prima face, the defence of honest and reasonable mistake of fact is available in respect of all crimes of strict liability ( Proudman v Dayman ).
The presumption in favour of the defence is weak, and can be rebutted by the language of the statute ( He Kaw Teh ). If the presumption is rebutted, the defence will not be available to the accused (as in Kearon v Grant ).
Proudman v Dayman (1941) HCA:
Facts:
- A is charged with an offence under s 30 of the Road Traffic Act (SA) which makes it an offence for a person to permit an unlicensed driver to drive a motor vehicle on any road
- A claims that she believed on reasonable grounds that the person she permitted to drive her car was licensed
- A is convicted at trail (in the Magistrates’ Court)
- A appeals to the Supreme Court of South Australia, the Full Court of the Supreme Court of South Australia, and finally to the High Court of Australia
Issue:
- Can the accused be guilty of ‘permitting an unlicensed driver to drive a motor vehicle on any road’, despite not being aware that the driver was unlicensed?
Reasoning:
- Dixon J: lays out the general doctrine o ‘As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence’ o ‘It is one thing to deny that a necessary ingredient of the offence is a positive knowledge of the fact that the driver holds no subsisting license. It is another thing to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive.’
- The strength of the presumption that the defence is available varies
- There must be a mistake made (mere inadvertence will not suffice) o Ignorance of the fact (rather than a mistaken belief in a fact) may not be sufficient to establish the defence of HRMF. This proposition has inconclusive authority: see Proudman
- The mistake must pertain to facts, not law o The accused must believe in facts which, if true rather than mistaken, would make the accused legally innocent
‘Wilful blindness’ in respect of the true state of facts may exclude the accused from relying on their honest belief in another, incorrect state of facts. However, wilful blindness does not necessarily preclude reliance on the defence; if it was reasonable to hold the mistaken belief, then, if honest, it will still afford a defence.
- Caralis v Smith (where the accused persons were prevented from pleasing mistake because they deliberately failed to make enquiries so as to maintain their mistaken beliefs, even after their suspicions had been aroused).
7 Application: Sexual Offences
Consider the operation of the defence of honest and reasonable mistake of fact in the context of sexual offences:
- R v Kennedy [1981] VR 565 [noted in WW 14.50] o Here, the accused was charged with taking a person under 18 years of age out of the possession and against the will of the person having lawful charge of her with intent that she be carnally known (this offence has since been replaced by s 56); the maximum penalty is 5 years imprisonment o Result: absolute liability offence
- Would the outcome have been different if Kennedy was decided after He Kaw Teh? o Probably: severe sanction suggests mens rea is required o Similarly, reference to a specific ‘intent’ seems to indicate that ‘intent that she be carnally known’ is an element of the mens rea of the offence o However, on the facts the outcome may have been the same
- The House of Lords has recently rejected the proposition that special rules of construction apply to age-based sexual offences: o B (a minor) v DPP [2000] 1 All ER 833 (HL) [WW14.42C]
B Reasonable Care and Due Diligence
A defence of ‘taking all reasonable care and diligence is within the scope of the concept of honest and reasonable mistake of fact’ ( Allen v UCM ). Thus, criminal liability will not arise where the accused takes all reasonable care (or exercises due diligence) yet still makes a mistake of fact leading to the commission of an offence of strict liability.
C Reasonable Cause or Excuse
The relevant section may define specific defences applicable to the offence in question. Most commonly, a consequence will be prohibited subject to the qualification ‘without reasonable excuse’ or ‘without reasonable cause’. Such a qualification suggests that, where the accused has a reasonable cause of excuse for acting in the way they did, they will be acquitted of the relevant offence.
This is a specific statutory defence that must be explicitly stated to be available: it is not a general defence to strict liability offences available at common law.
If the defence is available, then the question arises, ‘what amounts to a reasonable cause or excuse?’
- The scope of ‘reasonable excuse’ or ‘cause’ is unclear and undefined
- Whether a person has such a reasonable cause or excuse is a question of fact for the jury
- A reasonable cause may be based on a mistaken belief; however, that mistake and the cause arising from it must still be objectively ‘ reasonable ’
- A reasonable mistake of law amounts to a ‘reasonable cause’ ( Bacon – although on the facts the mistake was unreasonable and hence the defence was not made out)
- ‘Reasonable excuse’ also entails the inclusion of common law defences (eg, infancy, insanity, duress: He Kaw Teh and Brown ) [???]
R v Bacon (1977) NSW CCA:
Facts:
- The five accused parties want to protect a group of buildings in Kings Cross from development (and demolition) and support residents resisting eviction against allegedly unscrupulous tactics the developer is using to evict them
- Each accused therefore conclude that they should squat in one of the buildings scheduled for demolition
- They are each charged with a summary offence under s 50 of the Summary Offences Act 1970 (NSW), which states that: o ‘A person who enters or remains in or upon any part of a building or structure, or any land occupied or used in connection therewith, and has no reasonable cause for so doing is guilty of an offence.’
- All are convicted at trial and fined $40 each
- Each of the five Accused genuinely believe in the validity and propriety of their actions
- One of the Accused, Teresa Brennan, had installed her own furnishings in the building
- She was given no opportunity to remove her personal property when the police officer demanded that they leave or face arrest
Issue:
- Given these findings of fact, did the prosecution prove beyond reasonable doubt that the accused remained on the premises with ‘no reasonable cause’? o Did the accused have reasonable cause for remaining on the premises such as to negative criminal liability under the Act?
Reasoning:
- Prima facie, the accused were trespassing
- Can their beliefs amount to reasonable cause such as to exculpate their conduct? o They can’t plead necessity – ‘if homelessness were a defence to trespass, no door would remain shut’ o There is no reasonable cause, despite their principled objections to the development Even if they believed in a right to live in the building in protest, policy reasons militate against its recognition as a reasonable cause The accused should not be able to take the law into their own hands However, it would have been a valid excuse if they believed that they had good title (and hence were allowed to stay on the property) As this was clearly not the case, the four of the accused without possessions on the premises had no reasonable cause for there remaining
