Strict Liability Flashcards
Strict liability offences:
Why is this an important topic? → often when you look at a statute you cant see what a mens rea → often the legislature doesn’t set it out
And so that is why this topic is important →
the question is even if the legislature has not expressly required mens rea → is mens rea required to convict someone?
You really need to know that → because if you are the crown you have to establish it → if you are the defence you have to raise reasonable doubt about it
And when you look through the Crimes Act → there are alot of statutory offences that don’t mention mens rea → they are lots that do but there are lots that dont as well
They set out the actus reus and they are silent as to mens rea → and that means that they are potentially one of a number of types of offences.
•Millar v MOT [1986] 1 NZLR 660 sets out three offence classifications for mens rea purposes. What are they?
Miller v MOT → set out three offence classifications for mens rea purposes
What are these offence classifications for mens rea purposes?
Classification: Millar v Mot:
•Mens rea offences
•Strict liability offences
•Absolute liability offences
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•Define these different types of offences
•Truly criminal offences. Require mens rea
•Strict liability offences. Prosecution must prove actus reus but need not prove mens rea in relation to one or more elements of actus reus. Defendant may prove defence of absence of fault. Ie – not negligent.
•Absolute liability offences. Offence complete on proof of actus reus. No requirement to prove mens rea and the accused cannot claim the defence of absence of fault.
Mens rea offences, strict liability offences, and absolute liability offences
We used to just have mens rea offences and absolute liability offences →
and in the case of Civil Aviation v Mckenzie → that was the case that really embraced strict liability
Strict liability → interim mens rea offence
Case where an aircraft was operating in a way where it was alleged that it was causing danger
So it had flown so low that i had dragged these powerlines and people had to scramble away
And the question was → whether you had to prove that the pilot knew what they were doing essentially at the time
And in New Zealand common law development at that time → was a really confusing number of mens rea offences → we had about seven
And they were different combinations of mens rea → and different combinations of the reversal of the burden of proof → or the non reversal of the burden of proof
Or the reversal of the evidentiary burden of proof or not
So they were categories with different reversals of proof → including the evidentiary burden and different forms of mens rea
So basically what Miller v MOT did was → they said we are going to simplify this → and reduce these seven categories to three categories → so merging a number of the categories.
If reading the English cases → have to be very careful → because even though we codified the English Common law → we have been developing in our own little island for years and they have been developing themselves → so we have parted ways
The English → what they call strict liability is actually absolute liability →
English Courts have not invented this halfway house → they have said we are not going to do that → we are not the legislature → we are just judges it is not our job to make up the law
The NZ Courts in the Mckenzie case → followed City of Sainte Marie → which was a Canadian case which kind of invented this halfway house → this interim form of mens rea
Which basically does → all the functions of absolute liability → but is way less harsh
Definition of these types of offences
What are mens rea offences? → You have to prove actus reus and subjective mens rea → but essentially they require some form of mens rea → basically if talking about a mens rea offence → the prosecution has to prove beyond reasonable doubt → defence has to just raise a plausible narrative to the contrary that the jury might accept
Have to prove beyond reasonable doubt that the defendant committed the actus reus with whatever mens rea is required (prosecution) → mens rea offences
Strict liability offences? → The prosecution only has to prove actus reus → don’t have to prove mens rea → but the defendant may raise the defence of absence of fault
Defence of absence of fault → that is essentially a defence of I was not negligent
But the burden of proof for the defence of absence of fault is on the DEFENDANT → not the prosecution
So essentially → the prosecution just proves the actus reus → then its up to the defence to prove that they were not negligent → That they didn’t do the actus reus out of carelessness.
Every time the burden of proof shifts to the defendant → what is the standard of proof? → civil standard = so balance of probabilities → so what you have to establish is that its more probable than not that you were not negligent → don’t have to remove any plausible narrative to that effect.
Absolute liability offences? → Essentially the prosecution only has to prove the actus reus → does the defence have the defence of absence of fault? NO they dont → end of story → you have done it that is it → you are guilty.
When we are talking about mens rea offences → there is a big question as to what the mens rea actually is?
So whether something is a mens rea offence → what that mens rea offence is sometimes defined in the statute and sometimes it isn’t
And when it isn’t → the Courts will presume → there is a presumption of mens rea
Some offences like assault → seem to require only the highest form of mens rea → when you look at the definition of assault → you will see that the legislation specifically requires an intention → so can’t recklessly assault someone → have to be deliberately touching them
But as we have seen → their can be lesser forms of mens rea that are required
Cameron v R [2017] NZSC 89:
•The Supreme Court resurrected a fourth category (presumed mens rea) – at least for certain drug offences: what was it?
Cameron in 2017 → Supreme Court decision → resurrected a fourth category of mens rea → presumed mens rea → at least for certain drug offences
Cameron was a case that involved drug analogs → what had happened was → the way we dealt with drugs in the old days is we set out the chemical composition of the drugs in the drug offences act → so if you dealt with those drugs it was illegal
So then we have this dance → where people keep inventing substances which mirror the effect of illegal drugs → but not exactly the chemical composition that is prohibited → so the legislature updates the law and includes those chemical compositions
And then people come up with new chemical compositions that are not prohibited → but have these intoxicating effects on humans
Dance between legislature behind trying to keep up with designer drugs or party drugs
So what it did was created these offences called drug analog offences → where you are guilty if you are dealing with a drug that is substantially similar in its chemical composition to one of the prohibited drugs → but it is kind of tricky → how do you know that that drug is prohibited.
Mens rea in relation to drug offences are difficult as well → because people might know the street name of the drug, they might now the effects of the drug → but they may not know the chemical composition of the drug unless they are a chemist. → or have some background in chemistry
So what level of knowledge do they have to have to have the mens rea that they are dealing with a prohibited drug
And drug analogs are particularly tricky → because you really dont know its a prohibited drug until the jury decides the chemical composition is substantially similar
So this case was dealing with these complexities → and the judge that was delivering this case → dealing with drug analog offences under the Misuse of Drugs Act → thought that a solution to it was to come up with a fourth category of mens rea offences
We don’t know whether this category just applies to drug analogs → whether it just applies to drug offences → because of the problem that they present in relation to mens rea → whether it could apply more broadly.
What is this fourth category? → he said it was Strawbridge → in reality it wasn’t
Structure of this fourth category? →
Cameron 4th Category:
•If no evidence pointing to a lack of mens rea then mens rea is presumed
•If there is evidence suggesting a lack of mens rea then the prosecution must prove the relevant mens rea beyond reasonable doubt (in this case: intention or recklessness)
•Most offences have multiple actus reus components. Does an offence always have the same classification for each actus reus component? Ie, if mens rea is required in respect of one component is it required in respect of all the others?
What this category of offence is → that if there is no evidence pointing to a lack of mens rea one way or the other → the prosecution doesn’t need to prove it → we can presume mens rea → that there was mens rea
If there is nothing that clearly suggests that the defendant didn’t know what they were doing → we assume that there’s mens rea
However the defence can raise evidence suggesting a lack of mens on their part → and if they do that → then the prosecution has to do what they normally do → which is disprove mens rea beyond reasonable doubt
What that does is → is its got a reversed evidential burden for mens rea → so it hasn’t reversed the main burden of proof → that still lies on the prosecution → but if there is no evidence of lack of mens rea before the Court then mens rea is assumed
So essentially → it puts the burden on the defendant to put some evidence of lack of mens rea into Court → in which case → the normal burden of proof applies..
So essentially → the evidential burden is on the defendant in relation to mens rea if they discharge that → then the normal burden of proof applies to the normal standard on the prosecution
Most offences have multiple actus reus components. Does an offence always have to have the same classification for each actus reus component? →
In other words → if mens rea is required in respect of one actus reus component → is it the same mens rea for all actus reus components or can it differ?
The answer is NO → you actually have to look at the mens rea for each actus reus component → because it could it be different.
Police v Starkey [1989] 2 NZLR 373: hybrid offence:
Local Elections and Polls Act 1976, s 55:
•Publication of a document (intention)
•Containing an untrue statement (strict liability)
•Defamatory (absolute – question of law)
•Which was calculated to influence the vote of an elector (knowledge)
A classic example of what we might call a hybrid offence is Police v Starky from 1989 → this was an offence under the Local Elections and Poles Act 1976
Section 55 → Set out an offence where you published a document containing an untrue and defamatory statement → which was calculated to influence the vote of an elector → this was an offence.
So you can’t go publishing untrue things about your opponents in the hopes of getting yourself elected → it is a criminal offence
And in this case the Court is looking through all of these different actus reus components and determining what mens rea should accompany each.
And so you cant publish something unless you intend to publish it → disseminate it to the public in some way
However whether the statement is untrue → is strict liability → its either true or not → just a matter of fact → don’t have to prove any mens rea in relation to that
But that is strict liability → you can prove that you took reasonable steps not to publish something that is untrue → so if you have a reasonable basis for thinking it is true that is a defence that you can raise
However whether it is defamatory → there is no defence of negligence in relation to that → that part of the defence is absolute liability → because the Court said it is a question of law whether it is defamatory or not
And then the untrue and defamatory statement has to be calculated to influence the vote of an elector → knowledge is required for that component
So you have to believe that it might change people’s opinions about your opponent.
Why do we have strict and absolute liability offences?
•Fundamental principle: Actus non facit reun nisi mens sit rea: The act does not make it criminal unless the mind is also criminal.
•Presumption of innocence contained in section 25(c) of the Bill of Rights act 1990 (but see section 5 of the Act).
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•However, strict liability offences permit the conviction and punishment of a person not proven to be at fault unless that person establishes a defence.
Another question → why do we have them?
Strict and absolute liability offences → do challenge some fundamental precepts in the criminal law → so fundamental principle of actus non facit reum nisi mens sit rea → the act does not make it criminal unless the mind is also criminal
And there is the presumption of innocence → contained in section 25(c) of the NZBORA 1990 → which of course is qualified by section 5
So these are sort of fundamental principles of the criminal law → not guilty until your proven to be guilty and part of that is proving mens rea → in other words moral culpability
But strict liability and absolute liability offences → allow us to convict people and punish them when they’re not proven to have any mens rea and they’re not proven to really be at fault
The strict liability → unless they go on to establish a defence
For absolute liability → across the board
So these types of offences arguably breach these fundamental principles → so why do we have them?
What is it about these offences which are different? → Some offences we don’t think are truly criminal → they are just regulatory type of offences → but there is still a public interest in these things being enforced
Strict and absolute liability → has been justified for public regulatory type offences
Public regulatory type of offences → offences that really started emerging in the 19th century when we had rapid industrialization and there was suddenly a huge concern about public health and safety → then this proliferation of what you might say are really quite minor offences
They don’t look like criminal offences → but using the criminal law to enforce them → so they don’t carry high levels of moral stigma or high levels of punishment → but there is a strong public interest in enforcing them .
Justified for public regulatory offences:
Emerged in the 19th century – rapid industrialisation and a corresponding concern about public health and safety.
•Tend to involve specialised activities: the facts and motives of the accused are more likely to be within their knowledge than that of the prosecution.
•Activities regulated are “risk creating” and voluntary. If people choose to undertake those types of activities then they should have an incentive to take precautions to minimise or eliminate the risks.
•The costs of controlling the activity should be born by those who conduct the activity as a production expense rather than the general public.
•Greater ability to punish corporate activity. Large scale dangerous industrial activities largely carried out by corporations.
•Strong public safety interest
•Difficulty in enforcement
And so there are lots of attractions to reversing the burden of proof in respect of these types of offences → because it is really hard to enforce them if you require high mens rea standards
Many of them involve voluntary activities where the person who is undertaking the activity knows more about their activities than any outsider does
So if we require high standards of mens rea and put the burden on the prosecution to prove that → it is going to be really hard to enforce these offences
So we are requiring the prosecution to go in and show intention beyond reasonable doubt → the person who knows what they have been doing is the defendant
So in other words → it creates a huge burden → an enforcement burden →
These activities are often risk creating → they create risks to the public and the person creating the risk is profiting from that -
So people think → if you choose to undertake that type of activity → then you should bear the burden of taking precautions to minimise or eliminate the risks to the public.
And you should prove that in Court → so if you do something that harms the public → we will prosecute → and then it’s your job to show how you have tried to not be negligent → to not hurt people → what precautions have you taken?
And so you should bear the risks of enforcing the activity in a sense like a production expense rather than taxpayers paying the Crown or the police to go and enforce the activities
And a lot of these activities are undertaken by corporations → particularly large scale dangerous industrial activities
And companies present particular challenges in terms of the criminal law → famously said that companies → which are legal people → have no soul to damn and no body to kick → cant prove mens rea on part of a thing that doesn’t have a mind and doesn’t think
So it’s kind of easy in relation to regulatory offences → we can just prove that somebody who represented the company did the wrong thing and then the company can show what precautions it took to prevent that from happening
Much easier than us going in and trying to prove that somebody who represented the company had a particular state of mind on behalf of the company.
So they’re basically offences where they are public regulatory offences → there is a strong public safety interest but there is difficulties in enforcing them.
In Addition…
•Not as much moral stigma attached to conviction.
•Punishments are not as onerous.
•Describe what must be established to establish the defence of absence of fault?
•Who bears the burden of proof and to what standard?
The punishments aren’t very onerous → and there is not that much moral stigma attached to conviction.
So doesn’t really matter if we are convicting people and in fact they didn’t know what they were doing → they have really no moral fault
The answer is no → we don’t care as much about the traditional protections of the criminal law.
The type of offence that is likely to be strict liability → public regulatory offences.
Defence of Absence of Fault:
•Must be proven that the the defendant exercised a reasonable level of care to avoid the occurrence of the actus reus. In other words, they were not negligent.
•Burden of proof on the defendant to the balance of probabilities (but see Cameron, at [63]).
Eg Finau v Department of Labour [1984] 2 NZLR 396
What has to be established to prove absence of fault? →
Who has the burden of proof and to what standard? On the defence on the balance of probabilities?
But what does the defence have to prove? → they exercised a reasonable level of care to avoid the occurrence of the actus reus. → which is effectively they were not negligent in producing what happened
And the burden of proof is on the defendant to the balance of probabilities → they are obliged to show that it’s more probable than not that the occurrence of the actus reus wasn’t something that they could have reasonably prevented
So it is objective.
But see the suggestion in Cameron v R [2017] NZSC 89, [63]:
•“Given that MacKenzie and Millar predate the enactment of the New Zealand Bill of Rights Act 1990, the onus of proof issue may require reconsideration, a reconsideration which is not required in this case, because we do not see the offences in question here as subject to strict liability.”
The SC did raise this question about whether or not the presumption of innocence in the NZBORA → means that we need to reconsider putting the burden of proof on the defendant
Judge in this case just raised that as a possibility and didn’t answer it → said → essentially judges develop these kinds of offences before the BOR was enacted now that we have this presumption of innocence maybe its not appropriate to put the burden on the defendant
But he said i’m not going to decide that question its just an obiter remark → that is to be decided on another day
•Does the defence have to establish a lack of negligence only at the moment that they performed the actus reus?
•The defendant must take all reasonable steps to avoid an offence – meaning that it is not sufficient to prove that the defendant was not at fault in the moment when the offending occurred: Tifaga v Department of Labour [1980] 2 NZLR 235
Does the defence have to establish a lack of negligence only at the moment they performed the actus reus?
Can be the lead up to the actus reus → the defendant must take all reasonable steps to avoid an offence…
•Does the test for the defence take into account personal characteristics of the accused? In other words, is the test what we could reasonably expect of that particular accused in the circumstances?
Does the test for the defence take into account personal characteristics of the accused…
Answer is NO → it is what a reasonable person in those circumstances would have done → we don’t modify that standard for personal characteristics of the defendant
Justice Richardson in Civil Aviation → a high standard of care…
Richardson J in civil aviation department v MacKenzie [1983] NZLR 78 (CA):
“a high standard of care is properly expected of a defendant in such a case and he must prove that he did what a reasonable man would have done. It would not in our view be appropriate to have a variable standard of negligence depending on subjective considerations affecting the individual concerned, as was suggested in argument at one point.”
Does the test for the defence take into account personal characteristics of the accused…
Answer is NO → it is what a reasonable person in those circumstances would have done → we don’t modify that standard for personal characteristics of the defendant
Justice Richardson in Civil Aviation → a high standard of care…
Buchanans Foundry v Dept of Labour [1996] 3 NZLR 112:
•Offence of strict liability. Defence of total absence of fault - employer must prove that he took “all practicable steps”.
old case but still significant in this context is Buchanan’s Foundry v Dept of Labour →
That was a case involving an offence of strict liability → and basically it was a case involving an industrial accident
One of the employers was badly injured → as a result of a furnace that he was operating → and he was wearing what was meant to be a hazard suit to protect him
But it wasn’t able to protect him from the kind of hazard that he faced.
And the Courts discussed what we meant by the defence of total absence of fault
The employer had to show that they took all reasonable steps or all practical steps to protect their employee.
•Not to be judged with benefit of hindsight, but on the basis of what was known at the relevant time.
•Object of defence not “for snaring the diligent and socially responsible.”
•(Also stated in Department of Health v Multichem Laboratories [1987] 1 NZLR 334)
And the Court made some important statements of principle → they said we dont look at this question with hindsight
We are looking at what was reasonable at the time the employer was acting → and the object of this defence → is not to snare to the diligent and socially responsible
The Courts said there was no perfect hazard suit available to the employer → so they made a decision based on the facts known to them to choose one type of hazard suit →
Unfortunately what happened to the employee involved a a different type of hazard → so they didn’t have the capacity to provide a suit that protected from all hazards
The question really is → were they responsible in the circumstances, were they doing their best in the circumstances? →
and the answer is if they have made an effort → and they did what looked reasonable to them at that point in time or what looks reasonable → then the fact that they haven’t in hindsight → would have been better to make a different decision doesn’t mean they can’t raise this defence
So you can make mistakes and still be reasonable → as long as your misapprehensions your decisions were reasonable at the time.
