10/16/18
Agenda
• Strict liability offences
CRIMINAL LAW LECTURE WEEK 8:
STRICT LIABILITY OFFENCES
• Proudman Defence
• Absolute liability offences
• Assignment Feedback
Q: Can one’s
conduct be
criminal when the
accused acts
without any level
of intent?
Statutory offences fall into one of three categories
1.
Crime involves a subjective fault element (eg, mens rea)
Crime is one of strict liability
3. Crime is one of absolute liability
2.
A: Yes, they are
called Strict and
Absolute liability
offences
Determining whether a crime is one of strict
or absolute liability
Relevant Factors
• Statutory language
• Legislative intent
• Maximum penalty
• Harm sought to be prevented by statute
• Aspect of moral culpability
*note test would be different in the code jurisdictions
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He Kaw Teh v The Queen (1985) 157 CLR 52
The Proudman Defence to Strict Liability Offences:
Honest and Reasonable Mistake
Proudman v Dayman (1941) 67 CLR 536 at 540
“It is one think to deny that a necessary ingredient of the offence is positive knowledge of the
fact that the driver holds no subsisting licence. It is another to say that an honest belief
founded on reasonable grounds that he is licensed cannot exculpate a person who permits
him to drive. As a general rule an honest and reason able 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.”
What will be sufficient to constitute a mistake
within the Proudman defence?
•
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.
Ostrowski v Palmer (2004) 78 ALJR 957
A number of components exist at common law:
•
There must be a mistake and not mere ignorance;
•
The mistake must be one of fact and not law;
•
The mistake must be honest and reasonable; and
•
The mistake must render the accused’s act innocent.
•
One exception: where it is not possible to ascertain the law (see, Lim Chin Aik v The Queen [1963] AC 160)
See, State Rail Authority of NSW v Hunter District Water Board (1992) 65 A Crim R 101;
Ostrowski v Palmer (2004) 78 ALJR 957
Absolute Liability
R v Clarke (2008) 100 SASR 363; [2008] SASC 100
The effect of absolute liability is to place a legal obligation of extreme (not merely
reasonable) care on individuals who are engaged in potentially hazardous or
harmful activity.
Because of the harshness of holding a person criminally responsible in the absence
of any fault on his or her part, the courts may take into account whether any
purpose will be served by characterising the offence as one of absolute liability,
which could be just as effectively served by characterising the offence as one of
strict liability.
Bronitt & McSherry, Principles of Criminal Law 4th edn (2017)
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Example of an Absolute Liability Offence
Environment Protection Act 1970 (Vic)
s. 39 Pollution of waters
(1) A person shall not pollute any waters so that the condition of the waters is so changed
as to make or be reasonably expected to make those waters—
(a) noxious or poisonous;
(b) harmful or potentially harmful to the health, welfare, safety or property of human
beings;
(c) poisonous, harmful or potentially harmful to animals, birds, wildlife, fish or other
aquatic life;
(d) poisonous, harmful or potentially harmful to plants or other vegetation; or
(e) detrimental to any beneficial use made of those waters.
See, Allen v United Carpet Mills Pty Ltd [1989] VR 323
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