Class 2 defences Flashcards
What are the defences or at least points to go over for if it is a PWO
No fault defence, Mistake of fact, Mistake of law, officially induced error of law
What is the no fault defence
They knew what the situation is and they try their best to adhere but because of forces beyond their control they fall short.
The reason the accused fell short may be internal (eg, the accused lacked the physical strength to perform some required task) or external (eg, the weather prevented a required act from being successfully performed)
Key question for no fault defence
did the accused do everything a reasonable person could be expected to do in the circumstances to comply with the law. The accused bears the burden of proof to prove this
Explain vicarious liability
even in an absence of fault an employer may be liable for their employees breach of a class 2 offence
To prove absence of fault, the company must prove that the employee’s act occurred without the company’s direction or approval and in circumstances that were beyond the employer’s reasonable ability to control
Mistake of fact
Accused incorrectly believed a fact to be true, and if it were true no offence would have been committed
e.g. hunter shoots a (protected) kiwi because when he saw it, he believed it was a rat
For Class 1 Offences: Mistake only needs to be
subjectively honest to raise reasonable doubt that MR existed. Mistake does not need to be reasonable
Case on Class 1 offence mistake of fact
Keung v Police: Accused drove while license was suspended because he “got his maths wrong” about how long the suspension was
Clear mistake of fact and because it is a class 1 offence accused only had to prove they were subjectively honest beyond reasonable doubt. Would have to also be reasonable if it was class 2
For Class 2 Offences:
Mistake must be subjectively honest and objectively reasonable. Must be proven by accused on balance of probabilities
Mistake of law
A mistake of law occurs when the accused has an incorrect belief about the legal effect of a known fact or situation (e.g., a hunter shoots a (protected) kiwi because he believes it is legal to hunt kiwi)
Is mistake of law a defence
No because it would make learning the law a disadvantage
Mistake of law case where (drove in a paddock while drunk)
Cave:
The judge held that Mr Cave’s mistake was essentially one of law in not understanding the scope of the Land Transport Act. It is the law that defines what a road is; it is not factually self-evident.
accused mistakenly thought his driving disqualification would not commence until his license was taken off him
Booth
Purely a mistake of law even though it was argued to be both (even if it was both still would be no defence)
What is an official induced error in law
OIE may provide an exception to the rule that a mistake of law is no defence if someone like a lawyer gives wrong information on a la
What are the 6 Canadian case requirements for OIE
Jorgenson: Requirements of OIE
1. A mistake of law (or a mixed mistake of fact and law) was made
2. The accused considered the legal consequences of his or her actions. By requiring that an accused must have considered whether her conduct might be illegal and sought advice as a consequence.
3. The accused obtained advice from an appropriate official (note that a private lawyer is not an appropriate official
4. The advice given was reasonable. This is an objective test. if an appropriate official is consulted, the advice obtained will be presumed to be reasonable unless it appears on its face to be utterly unreasonable.
5. The advice given was wrong
The accused relied on the advice and thereby committed the mistake of law. The accused must demonstrate reliance on the official advice. Proving that the advice was obtained before the actions in question were commenced
