Strict Liability Flashcards
Woolmington
- W shot and killed his wife (whom he was separated from)
- W said that he took his shotgun to show his wife to tell her that he was going to commit suicide if she did not come back to him; when he showed her the gun, it somehow went off; W claimed it was all an accident
- GOLDEN THREAD of ENG Crim law = P has to PROVE D’s guilt BRD
The onus for anything must not be put upon the accused (massive value).
Strict Liability
is the idea of parliament intentionally leaving out (being vague) on MR, so the offence conviction only requires proof of the AR.
Strawbridge
- Defendant cultivated cannabis plant
- She claimed she thought they were mustard seeds.
- Arguing that she didn’t have the MR for the offence
- CREATION of sensible half-way house rule
- Three step process :
○ 1. In the lack of evidence to the contrary, MR will be presumed on proof of the AR being presented by the prosecution.
○ 2. However, it is open to the defendant to provide some evidence (not necessarily enough for proof) that raises reasonable doubt as to whether she had MR (eg, an honest and reasonable mistake). (only an EVIDENTIAL burden)
○ 3. It is then open to the prosecution to attempt to dispel the reasonable doubt created by the defendant’s evidence. If the prosecution cannot do so, the defendant is acquitted. - (never putting full onus on D, just allowing him to raise a reasonable doubt)
- Golden thread reinforced - P has to prove everything, but the P does not need to prove MR unless explicitly the defence has claimed that there was evidence she didn’t know (had no MR)
Strict Liability offences are: Mala prohibitum =
wrong or bad because its prohibited (statute in place saying its bad), not inherently immoral.
As opposed to mala in se (bad in itself, even if there was no law it would still be wrong)
Quasi criminal offences are
regulatory offences
Examples of quasi - criminal offences
Creedon
= - The car failed to give way to the motorcycle at give way sign
- But there was a van obstructing view
- Car collided with a motorcycle
- Judges conclusions:
1. the regulation in question should not be an absolute liability offence, because it does not impose an unvarying obligation on the driver (the obligation only arises if a certain other event occurs -the driver must give way only if another vehicle is approaching)
2. the Strawbridge qualification of absence of MR based on “honest and reasonable mistake” is inappropriate for quasi-criminal offences
- Strawbridge sets up qualification that the defence can prove lack of MR as an honourable mistake
-3. the appropriate qualification here is “absence of fault” (was the accident inevitable or practically impossible to avoid?)
-The question is when the person did everything they couldn’t, and the accident was virtually inevitable
- Judges agreed with Creedon, that he did everything that was reasonably expected, and the accident was inevitable
= Case shows us that MR is NOT irrelevant to quasi-criminal offences
Ministry of Transport v Burnetts Motors Ltd
Timaru case
- Truck going up steep street in Timaru
- Sheep shit falls out the back on the street
- 3-class system adopted in R v City of Sault Ste Marie (SC of Canada) (1 MR offfences, 2 SL offences, 3 absolute offfences)
Evidential Burden
- A preliminary burden of providing some evidence to support a particular proposition. If discharged, then it switches to other party
Eg beginning of criminal trial, the P starts with evidential burden of the offence
Legal burden
- Always rests on the same party
- The ultimate burden to prove a particular issue
Sault Ste Marie classification scheme: adopted in NZ by Civil Aviation Department v MacKenzie
-Aircraft flew too low and clipped wires
-Two fishermen had to run for their life
-When someone makes an absence of fault offence (this is one) how do we deal with it? Is it like Strawbridge, do we put an evidential burden on the accused? Could it be a legal burden? (class 2)
P does not have to prove MR. Proof of AR BRD. Prima facie imports liability. But we leave the door open to the accused to defend themselves, but they have to bear a legal burden to prove absence of fault on a civil standard (not BRD)
PWO
public welfare offences (PWO) are prima facie in Category #2 (SL)
Sault Ste Marie majority’s justifications for imposing a legal burden of proof on the accused for Category 2 offences
- (1) it could always be worse: this scheme is actually beneficial to the accused, because the other alternative is to impose absolute liability for all PWO, because MR for PWO has traditionally been regarded as irrelevant
- (2) the accused knows best what they did: the accused is in the best position to share with the Court what they did (if anything) to avoid violating the PWO; it would be difficult for the prosecution to prove BRD that the accused did nothing to avoid the violation
(3) relax, these are not true crimes: these are just PWO, and Woolmington only applies to “truly criminal” situations
- (2) the accused knows best what they did: the accused is in the best position to share with the Court what they did (if anything) to avoid violating the PWO; it would be difficult for the prosecution to prove BRD that the accused did nothing to avoid the violation
POLICY ARGUMENT for not using Sault Ste Marie’s approach to adopting PWO as class 2:
- There is debate as to whether the courts have the jurisdiction to be able to impose such a burden on the D. Parl has legislated for a legal burden to be imposed on other offences, so it is appropriate for the courts to enforce it on a whole category themselves?
- There is also no clarification on what a PWO actually is.
- People who are charged with category one offences bear NO onus, which are very serious crimes. Therefore, why are we requiring a greater legal burden for offences less serious?
- Woolmington was also not limited. The broad principle in it is held strongly by the courts, therefore why are we limiting it to one offence?
- Strawbridge approach was that the ‘halfway house’ was appropriate and it maintained the golden thread.
Canada is similar but NOT the same
Millar
-Driving while disqualified (= was class 1, court order = class 1)
He said he had reasonable belief that the period had come to an end.
- Introduction of the Millar approach
Explain the Millar approach
STEP 1 = Is there a clear legislative intent (look at the written text) as to which of the three classes the offence belongs to? (looking for MR type words, eg recklessness ect, or is it phrased in a way that says the accused have to provide a lack of fault or no MR at all?)
If no then continue (you will be done is the answer is yes) >
STEP 2 = Is there overriding judicial history (ie, precedent) that assigns the offence to one of the classes? (Do we have any cases that exist that deal with the same offence, and have these cases already been through the process of determining a category.)
If no >
Then we presume the offence is in Class #1 (always go on) (in a case where you are not sure, the presumption will be the safest route = rebuttable or displaceable presumption) >
STEP 3 = Can the presumption be displaced? Is there anything “really weighty enough” to do so? Note: if we can classify the offence as a PWO, the presumption is usually displaced (in a later lecture we will discuss how to recognise a PWO). It has to be a really good reason, eg classify it as a PWO. You can argue any offence is a PWO.
If no, go back to class #1, if yes >
STEP 4 = Is the offence in Class #2 or Class #3?
Usually, if we get this far, the answer will be #2 but still need to explain why:
○ Some guidelines:
i. If either are reasonable interpretations, we should adopt the one more favourable to the accused (which is #2) (Sweet v Parsley)
ii. PWOs are prima facie (there is a presumption) in #2 (MacKenzie)
iii. Class #3s are rare and exceptional (MacKenzie; Millar; Tell)
iv. If the potential penalty is “severe”, it should be a class #2. (They should get a chance to defend themselves)
1) $4000 fine and above = can be considered severe
2) Licence suspension = severe
3) Prison = always severe
If class #2 >
STEP 5 = Since it is a Class #2 offence, what are the available defences that the accused can use to attempt to prove “absence of fault” on a balance of probabilities? This will be discussed in a future lecture
○ In Millar the court determined that driving while disqualified is a class one offence (full MR offence). Traditional offence, not a PWO.
