strict liability struc and cases

Question 1

structure

Answer 1

1. CLEAR LEGISLATIVE INETNT
2. OVERRIDING JUDICAL HISTORY
3. CAN THE PRESUMPTION B DISPLACED
4. IS IT ABSOLUTE OR STRICT
5. AVAILABLE DEFENCES
   a. reasonable steps
   b. oie
   c. mistake of fact

Question 2

PWO questions

Answer 2

• not usually found in crimes act
• is a regulation
• is a matter of public welfare
  worker safety, environmental protection, resource management

Question 3

pwo cases

Answer 3

tell v maritime safety
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
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
cannabis was discovered in a magazine during a cell search. He claimed he was unaware that the magazine contained cannabis.
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.
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.

Question 4

absolute cases

Answer 4

ahi, dhl, ird, king
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.

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.
failing to furnish a tax return when required is an absolute liability offence. as putting in class 2 would over work the courts as eveyrone could appeal taxes

New Zealand Customs Service v DHL International Ltd
DHL removed packages from customers controlled area prior to being cleared

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
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
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.

Question 5

mistake fact

Answer 5

Keung v police
Defendants personal assistant told him his drivers licenses suspension wasn’t up so he drove. Calculation was wrong.
fact, Keung knew what the disqualification period was but breached it primarily due to a calculation error.

Question 6

mistake law

Answer 6

R v Cave
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.
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.
Booth v Ministry of Transport
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.
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.
Ministry of Transport v Wilke
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.

Question 7

jorgenson catergoies of OIE

Answer 7

1. Mistake of law (or mixed mistake of fact and law) was made
2. considered the legal consequences of his or her actions
3. obtained advice from an appropriate official
4. advise given as reasonable
5. erroneous advice
6. relied on the advise and thereby committed the mistake of law

Question 8

oie cases

Answer 8

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
Parkes v R
A private lawyer is not considered an appropriate official
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