STRICT LIABILITY - DEFENCES, ERROR LAW, MISTAKE Flashcards
what is step 5
What are the available defenses in the face of a strict liability offence to prove lack of fault?
when to use step 5
if it is a class 2 offence
An objective standard of the reasonable person
would a reasonable person in the circumstances have committed that same fault. If unreasonable then you cannot prove the defence, if reasonable could be proved.
“In the particular industry’ objective standard of the reasonable person
Objective test + Subjective factor of industry
- If a courier driver, test would be what would a reasonable courier driver do.
2 major variants of successful defenses for no-fault
(1) Absence of Fault (impossible to comply despite the persons best efforts to comply)
(2) Mistakes
explain (1) Absence of Fault (impossible to comply despite the persons best efforts to comply)
variants of successful defenses for no-fault
The accused was aware of the relevant facts and took good faith, reasonable steps to avoid the prohibited act but still fell short of compliance. This could be due to internal reasons (e.g., physical limitations) or external factors (e.g., adverse weather conditions like a storm).
what to ask yourself for (1) Absence of Fault (impossible to comply despite the persons best efforts to comply)
variants of successful defenses for no-fault
Did the accused do everything a reasonable person could be expected to do in the circumstances to comply with the law?
how to deal with absence of fault in an opinion
think creatively about what could have been done differently.
are mistakes of law valid defences
not valid defenses
explain mistakes
variants of successful defenses for no-fault
The accused made an honest and reasonable mistake (not aware of all the relevant facts and law)
are mistakes of fact valid defences
yes valid defences
Golden Thread Principle in woolmington
the prosecution bears the burden of proof in criminal trials, is the no-fault defence a violation of the presumption of innocence
Vicarious Lability
Committed by someone acting in the capacity of working for a company/corporate body
vicarious liability in relation to New Zealand Customs Service v DHL International Ltd
Must prove that it was without the companies direction, approval and company was not in a position to stop it.
If within scope of employee’s duty then difficult to prove
when using mistake of fact in class one
mistake only needs to be subjectively honest to raise reasonable doubt
when using mistake of fact in class 2
mistake has to be subjectively honest and objectively reasonable
when using mistake of fact in class 3
no chance to give a defence
what is a mistake of law
- Person has an incorrect belief about the legal effect of a known fact or situation
what is a mistake of fat
- Occurs when the accused incorrectly believes some (non-legal) fact to be true and if that fact were true in actuality, no offence would have been committed
Crimes Act section 25:
the fact the offender is ignorant of the law is not an excuse for any offence committed by him or her”
what is promoted when mistake of law is not a valid excuse
promotes knowledge of the law because there is a presumption (legal fiction) that everyone knows what the law is
is your can choose if it is a mistake of law or fact…
Where you cannot decide between the two you can state it is a mixed mistake of law and fact. However, if doing so you must treat it as a mistake of law and therefore there is no defence.
BOOTH
R v Cave facts
Mr. Cave was charged for drink driving when he moved his car to a different part of a paddock carpark (after a ag show). He believed that paddock was not a road so he would not be charged.
