Criminal Law and Procedure B – Week 3 PDF

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Criminal Law and Procedure B – Week 3 Interpreting Statutory Offences – Lecture

Statutory Offences: 

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Sometimes, the MR in statutory offences is clear. The intention of parliament is expressly stated. For example, s 18 Murder spells out the MR standards: “With reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person”. But often, statutory offences are defined only with respect to the external elements (AR); That is, they are SILENT as to MR.

Three Types of Offences: 1. Offences of MR – Mens Rea element 2. Strict Liability – No Mens Rea, but defendant can raise honest and reasonable mistake of fact (HRMF) 3. Absolute Liability – Prosecution does not have to prove anything re defendant’s mental state, no HRMF, but often statutory defence

Identification tips:  

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MR Offence: Offence expresses MR: ‘knowingly’, ‘recklessly’ – significant punishment e.g. life imprisonment Strict Liability Offence: Regulatory Offences (public heath, licensing, pollution offences etc) silent as to MR – defined by AR only – punishment is categorically smaller e.g. fines and HRMF - In order to find an offence one of strict liability must displace the presumption of MR - Where strict liability, defendant may raise HRMF Absolute Liability Offence: No Mens Rea, no HRMF, sometimes statutory offence – clear expression by legislature, usually where statutory defence provided – very rare - If it is an absolute liability, is there a statutory defence that applies? Possible Mens Rea = Knowledge, Recklessness, HRMF

Actus Reus Elements:   

Conduct – Act or omission, e.g. hitting a person Circumstance – some external factor that makes the conduct criminal, e.g. without consent of the other person Consequence – the act or omission causes a particular outcome or result, e.g. occasioning GBH; polluting a waterway

If you can recognise the relevant AR category you can work out the associated MR:

Presumption of MR:  

There is a presumption in the criminal law that a guilty mind is an essential part of any crime. That presumption may, however, be displaced: HKT

Displacing Presumption of MR – He Kaw Tah (1985) 1. Words of the statue 2. Subject matter with which the statue deals 3. Utility of imposing strict liability - He Kaw The (1985)

Strict Liability:   

Prosecution must prove defendant performed Actus Reus elements but does not have to prove Mens Rea Defendant may raise some evidence of HRMF to exculpate him/herself If defendant successfully raises evidence, prosecution has to prove beyond reasonable doubt the absence of HRMF – origins from Proudman v Dayma n Examples: 1. Riding on public transport without paying a fare 2. Unlawfully taking undersized crayfish 3. Causing pollution in waterways 4. Driving in excess of the speed limit 5. Harming or desecrating Aboriginal objects or places

HRMF Defence: 1. Defendant had an honest belief in a particular state of affairs 2. Constitutes a mistake of fact (not law) 3. This mistake was reasonable (objective test) Defining Key Terms: 

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Mistake: SRA v Hunter District Water Board 1. A positive belief that the act was permissible will constitute HRMF 2. The mere absence of a reason to believe that the facts were otherwise will not constitute HRMF 3. The failure to consider whether the facts were otherwise will not constitute a HRMF Honest: the belief must make the mistake innocent (Mayer v Merchant) 1. The action had to have been innocent if the state of affairs were indeed as the defendant thought they were The mistake must be Reasonable: objective test Ostrowski v Palmer (2004) 218 CLR 493 1. Defendant fishing for rock lobsters in a prohibited area. But he believed that where he was fishing was not a prohibited area 2. Defendant based this belief on info provided by Fisheries Dept, but they had left out the relevant regs. 3. The offence was one of strict liability and hence the HRMF applied. 4. Palmer’s mistake was a mistake of law – he did not know that a regulation had been made which rendered his action unlawful: ...[Palmer] knew he held a commercial fishing licence; he knew he was fishing for rock lobsters; and he

knew where he was fishing. What he did not know was that there was a regulation prohibiting his conduct. He was fishing where he intended to fish; he did not know there was a law against it. (CB 226)

Absolute Liability:   

Rare Clear intention Often a statutory defence

Examples – Criminal Code (Cth) EXAMPLE 1 73.1 Offence of people smuggling(1) A person (the first person ) is guilty of an offence if:(a) the first person organises or facilitates the entry of another person (the other person ) into a foreign country (whether or not via Australia); and(b)the entry of the other person into the foreign country does not comply with the requirements under that country's law for entry into the country; and(c) the other person is not a citizen or permanent resident of the foreign country.(2) absolute liability applies to the paragraph (1)(c) element of the offence Effect of absolute liability    

Prosecution has to prove defendant performed the AR No opportunity for defendant to raise argument of HRMF NB. Such offences are rare and often allow for a statutory defence Where statutory defence, defendant has to prove the defence on balance of probabilities (higher than ‘raise some evidence of the issues’ with HRMF)

He Kaw Teh Case...