STRICT LIABILITY - MILLER APPRCH Flashcards
Millar v Ministry of Transport facts
Millar was charged with driving with a disqualified license.
He believed the disqualification had ended due to a misunderstanding with the judge.
Millar v Ministry of Transport issue
The District Court and High Court ruled it as strict liability and said he didn’t prove a lack of fault, so he appealed to the Court of Appeal on mens rea grounds.
Millar v Ministry of Transport held
Millar essentially gives a seven-fold classification of offences which was reduced to the 3 classes as given in Mackenzie system.
Millar clears up any confusion of the classes and gives a step by step approach on how to determine what type of offence you have.
Cameron v R facts
- The defendant and others were found guilty of importing, selling, having possession for sale the class C drug MDA (valued at $36 million).
Cameron v R main points
fourth Class Established: Class Strawbridge.
Mackenzie and Millar were made before the NZ Bill of Rights Act (BORA).
BORA guarantees that individuals are presumed innocent until proven guilty.
Imposing a legal burden in Class 2 may undermine the presumption of innocence.
Cameron’s Approach: May lead to replacing strict liability with the Strawbridge standard for consistency with BORA and Woolmington.
what is step 1 of the Millar approach
is there a clear legislative intent as to which is the three classes the offence belongs to
if no move to step 2
what is step 2 of the Millar approach
is there an overriding judicial history that assigns the offence to one of the there classes
if no
PRESUME ThE OFFENCE IS IN CLASS 1
WHAT IS THE Presumption if THE OFFENCE IS IN CLASS ONE
there is no legislative intent and there is no overriding judicial history
what is step 3 of the miller approach
can the presumption be displaced
- anything weight to do so
- if two, can b displaced
if yes go to step 4
what is step 4 of Millar approach
if presumption displaced usually CLASS 2 or 3
usually if get this far answer will be CLASS 2
what are guidelines to step 4
- if either are reasonable interpretations, adopt to favourable which is CLASS 2
- pwo are prima facie in CLASS 2
- CLASS 3 are rare
- if penalty is severe, shld b CLASS 2
step 5 of Millar approach
since it is class 2, what are the available defences that the accused can use to attempted to prove absence of fault on balance of probabilities
explain what are class 1 offences
MR offences
regular criminal offences requiring AR and MR.
what are three types of mr
implied
expressed
presumed
expressed mr
○ Parliament through its clear statutory language expressing MR is required.
implied mr
Generally have to rely on common law (what courts have said)
what is a tip for the exam regarding step 2 and implied mr
○ Step 2 isn’t normally going to be contentious because not expected to know any precedent that not given in CM - normally just say no but in real world would require research.
what are examples of implied mr
Refusal: Unintentional refusal is unclear.
Publish/Broadcast: Intentional act; it’s unlikely to publish someone as a spy inadvertently (possibly involves an editor).
Possession of Material: In drug cases, possession implies awareness of what you have.
Allows or Permits: Refer to Turner v South Taranaki District Council.
Presumed MR
Nothing weighty enough to displace the presumption that it is not a regular MR offence (Step 3) then it is presumed to be class 1 MR offence.
Weighty enough” = if the offence is a PWO then the presumption may be displaced.
Turner v South Taranaki District Council
facts
Dog bit and wounded a passing pedestrian. Owner charged with being an owner of a dog that attacked a person and with “allowing” the dog in public unmuzzled.
Turner v South Taranaki District Council issue
is MR implied by the statutory language “allowed”?
Turner v South Taranaki District Council held
yes mr is implied, The word “allow” normally connotes actual knowledge of what is being allowed.
“Allow” in a regulatory setting is an implied MR of knowledge.
Police v Lindsay facts
Defendant was charged with 6 breaches of non-molestation order.
Police v Lindsay issue
Can MR be presumed from this offence?
Police v Lindsay
yes mr presumed
Drew parallels to Millar: both defendants ignored legal restrictions (license disqualification and court order).
In Millar, the AR required MR; similarly, it applies here.
Offences that protect private interests and court authority allow for presumed MR.
Police v TVNZ Ltd facts
TVNZ charged for publishing details of a defendant which was a breach of a name suppression order
Police v TVNZ Ltd issue
What type of offence is this?
Police v TVNZ Ltd held
Class #2 Strict Liability (CONTROVERSIAL)
this was possibly the wrong decision should have been a class #1 presumed MR offence
case is prove that presumed MR is not always clear cut.
what is class 2 offences
Strict Liability (PWO Offences)
Renewal of the onus, burden on the accused to proved there was no mens rea on the balance of probabilities
how do you identify a PWO
- not usually found in crimes act
- is a regulation
- is a matter of public welfare
worker safety, environmental protection, resource management,
what about tikanga relation to pwo
tikanga is in the public welfare so a tikanga argument could be used when dealing with the natural environment.
tell v maritime safety facts
Mr. Tell fell asleep at the wheel of his fishing boat. He was charged on the basis that he continued to operate a vessel with “knowledge” that he was likely to fall asleep as per s65(1) of the Maritime Transport Act 1994.
tell v maritime safety issue
What type of offence is this?
tell v maritime safety held
Operating a vessel in a dangerous manner is a Class 2 strict liability offence.
The legislative purpose is to ensure public safety by sanctioning those who unnecessarily endanger people or property.
Jackson v Attorney-General facts
Jackson, a prisoner, was charged under section 32(1)(g) of the Penal Institutions Act 1954 after cannabis was discovered in a magazine during a cell search. He claimed he was unaware that the magazine contained cannabis.
Jackson v Attorney-General issue
what type of offence was this?
Jackson v Attorney-General held
Class 2 Strict Liability
Prison discipline offenses under the Penal Institutions Act 1954 are public welfare offenses (PWOs) because a well-managed prison is crucial for public safety and social order, helping to deter bad behavior.
Stevenson v R facts
S pleaded guilty to two charges of attempting to enter into arrangement with a person under 18 to provide commercial sexual services.
Stevenson v R issue
What type of offence is this?
Stevenson v R held
Class 2 Strict Liability
Court found clear legislative intent that engaging in an act of prostitution under the age of 18 is a PWO because it is a matter of public safety.
what is class number 3
Absolute Liability
explain absolute liability offences
- Absolute liability offences mean that MR is completely irrelevant
describe class 2 offences
Renewal of the onus, burden on the accused to proved there was no mens rea on the balance of probabilities
The majority of the time you’ll settle on class 3 is when
at STEP 2 where there is overriding judicial history (precedent):
Most decisions were made before the Millar General Approach in 1986.
If the Millar approach had been applied, some offenses might have been classified as strict liability.
AHI Operations Ltd v Department of Labour facts
An employee was seriously injured while operating a machine owned by the defendant. The employee had removed the guard of the dangerous machine on an earlier occasion, and he had been warned not to.
AHI Operations Ltd v Department of Labour issue
The issue is whether absolute liability can be assigned when the employee deliberately acted against a warning in this case.
AHI Operations Ltd v Department of Labour held
An employer failing to ensure that a dangerous part of industrial machinery is fenced is an absolute liability offence.
Although recognized as a PWO, was placed in class 3 due to clear legislative intent and overriding judicial history.
IRD v Thomas facts
The respondent was not capable of completing her own tax return and she had relied on her accountant to do so for the last 20 years. The return was not completed on time.
IRD v Thomas held
yes absolute liability offence
failing to furnish a tax return when required is an absolute liability offence.
class 2 offence it would be absurd by allowing tax payers to avoid punishment and essentially gain extension if they could prove it was by fault of the accountant. This lead to the clear legislative intent of s 143 of the Tax Administration Act 1994.
IRD v Thomas issue
Is this an absolute liability offence?
Barrow v Van Den Beld facts
Charged for the importation of indecent films into NZ
Barrow v Van Den Beld issue
Is this an absolute liability offence?
Barrow v Van Den Beld held
yes absolute liability offence,
importation restriction cases are absolute liability cases.
Based on overriding judicial history of Fraser v Beckett
Boyes v NZ Customs facts
Charged for the importation of two instruction manuals for the manufacturing of illicit drugs.
Boyes v NZ Customs issue
Is this an absolute liability offence?
Boyes v NZ Customs held
yes absolute liability offence,
importation restriction cases are absolute liability cases
Based on overriding judicial history of Fraser v Beckett
what did the case of boyes v nz customs question
The case questioned if knowledge of the goods’ nature implied knowledge of their prohibition. It ruled that knowing one means knowing the other, aligning with the maxim “ignorance of the law is no excuse.”
New Zealand Customs Service v DHL International Ltd facts
DHL removed packages from customers controlled area prior to being cleared
New Zealand Customs Service v DHL International Ltd issue
Is this an absolute liability offence?
New Zealand Customs Service v DHL International Ltd facts
Not AL, Removing goods from a customs controlled area is a class 2 strict liability offence.
The case also clarified that in vicarious liability, it must be proven that the company did not direct or approve the employee’s actions, which is difficult if the offense occurred within the employee’s work scope.
King v South Waikato District Council facts
King is charged for being the owner of a dog that attacks. Two attacks occurred (1) to a neighbors rabbit and (2) to another dog whilst in the pound.
King v South Waikato District Council issue
Is this an absolute liability offence?
King v South Waikato District Council held
not absolute liability, Being the owner of a dog that attacks is a strict liability offence.
When a dog attacks, it’s not clear that the owner is responsible if the dog is out of control. Here, the second attack happened while the dog was at the pound, so the owner had no control. This should be a strict liability case, allowing a defense for the defendant.
step 4 reason 1
Universal principle of beneficial interpretation (Sweet v Parsley)
If both interpretations are reasonable, we should choose the one favoring the accused, which would be class 2, as it allows for a defense.
step 4 reason 2
Mackenzie states that PWO offences are presumed to be in class 2
is displaced when
this presumption is displaced only if it is clear that absolute liability was intended (this should have been picked up at step 1).
step 4 reason 4
If the maximum possible penalty is severe the offence should not be in class 3.
We do not want to give a severe punishment without giving chance to prove a defence.
fines and infringement fees
when they are applicable they are essential when deciphering if class 2 or 3 as class 2 requires a harsh maximum punishment
but can also not effect the class
