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.
r v cave issues
Mistake of fact or law?
r v cave
mistake of law, The statute defines “road” as any area accessible to the public. Mr. Cave was aware the paddock was open for public access during the show, so his ignorance of this legal definition constitutes a mistake of law.
Keung v police
Defendants personal assistant told him his drivers licenses suspension wasn’t up so he drove. Calculation was wrong.
Keung v police issue
mistake of fact or law
Keung v police held
fact, Keung knew what the disqualification period was but breached it primarily due to a calculation error.
Booth v Ministry of Transport facts
Booth’s license was suspended but hadn’t been physically taken off him. He thought that meant he was entitled to drive as he still had possession of it.
Booth v Ministry of Transport issue
Mistake of fact or law?
Booth v Ministry of Transport held
was treated as fact but was problematic decision.
was purely a mistake of law, and if it was a mixed mistake of fact and law, such mist be treated as a mistake of law.
Inspector of Factories v Tarbert St Food Center Ltd FACTS
Defendant was a shop owner and wanted to open her shop on a particular day that was restricted by law.
Inspector of Factories v Tarbert St Food Center Ltd issue
Mistake of fact or law?
Inspector of Factories v Tarbert St Food Center Ltd held
Restricted by law, so law
Ministry of Transport v Wilke facts
Defendants license was disqualified from drink driving charges. He thought the suspension would only last 7 months, so drove and was charged with driving whilst disqualified.
Ministry of Transport v Wilke issue
Mistake of fact or law?
Ministry of Transport v Wilke held
mistake of law, He misunderstood the legal impact of judges order.
what can Ministry of Transport v Wilke be distinguished from
Can be distinguished to Keung where the defendant didn’t misunderstand the length but just calculated it wrong, here it was the length itself that was misunderstood which was a fact of law.
Doctrine of Officially Induced Error of Law
An objection to a trial can be raised if the accused reasonably relied on legal advice from an authority, believing it to be true. In such cases, this doctrine may prevent a conviction.
R v Jorgensen
6 categories of an oie
- Mistake of law (or mixed mistake of fact and law) was made
- The accused considered the legal consequences of his or her actions
- The accused obtained advice from an appropriate official
- The advise given as reasonable
- The advice given was erroneous
- The accused relied on the advise and thereby committed the mistake of law
R v Jorgensen is in what context
canadian
what is an example of nz context to that set out in Jorgensen
Tipple v Police
Tipple v Police facts
nvolve accused supplying firearms to unlicensed or unauthorized persons. The gun store had consulted the police and the police said it was okay (for no valid reason).
tipple v police isse
Was OIE used as an excuse?
tipple v police held
oie WAS NOT USED as an excuse
Only example of NZ case satisfying all 6 requirements of a OIE. However, instead section 106 of Sentencing Act 2005 was used instead to discharge without conviction.
shows that the requirements can be argued in NZ)
r v jorgenson facts
The accused was charged with “knowingly” selling obscene material (videos depicting explicit sex and violence) without lawful justification or excuse, despite the material having been approved by the Ontario Film Review Board.
r v Jorgensen
Was OIE used?
r v Jorgensen held
oie was used, 6 steps
It was also stated that oie is not a full defense but rather an excuse; otherwise, it would contradict the principle that a mistake of fact is not a valid defense.
if all 6 elements of the test established in Jorgensen are successful, what do you apply in nz
section 106 Sentencing Act 2002
what is a successful use of section 106 Sentencing Act 2002 look like
discharge without conviction
what is a section ischarge without conviction
meanings that you are guilty of the act however you have. to been convicted of it
what does discharge w/o conviction mean for you criminal record
it will not show up on your criminal record.
when is discharge w/o conviction used?
This approach is often used for first-time offenders whose convictions could severely impact their future. The aim is to prevent them from becoming worse and to support their path to success.
It can be applied whenever the court is not expressly required to impose a minimum sentence.
What is a judicial OIE and when might a court issue one?
A judicial (OIE) may be issued by the court if all elements for a minimum sentence of imprisonment or fine are met, but enforcing the minimum sentence would be unfair or unjust.
However, this has never occurred because minimum sentences are quite rare.
Ministry of Fisheries v NZ Wholesale Seafoods
- Not enough to think the Government wouldn’t prosecute you if you got caught or you do not think they were prosecuting people for breaking that particular rule
MacRae v Buller District Council
- Accused needs a factual foundation for the claim and cannot prove OIE just by badly alleging that they were misled somehow.
Wilson v Auckland City Council
- Just because everyone is doing it does not prove
Crafar v Waikato Regional Council *****
- We haven’t reached the stage in NZ yet that we allow OIE and as far as we can push it is using discharge.
This is the current status of OIE in NZ
Parkes v R
A private lawyer is not considered an appropriate official
