The law can be complex and confusing. Criminal offences in particular can be hard to understand. Laws vary between states and the wording of statutes can feel like another language. This article breaks down absolute and strict liability.
As the Attorney General notes, absolute liability is comparatively uncommon in state and territory law. Cases can still arise. For help with strict and absolute liability, contact Jameson Law for expert advice.
Understanding Criminal Law
Proving a crime usually has two parts: mens rea and actus reus. Actus reus is the conduct that amounts to the offence. Mens rea is the state of mind or intention when the act was committed.
To find guilt, the prosecution must show the person did the prohibited act and had the necessary mental state connected to that offence. Actus reus is the physical element. Mens rea is what was in the person’s mind. Together they help determine criminal responsibility.
Absolute liability offences
For absolute liability offences the prosecution does not need to prove a mental element to find a person guilty. There is no need to prove intention, knowledge or other fault. The focus is on the actus reus alone.
The accused’s mental state is irrelevant. Even an honest and reasonable mistake does not provide a defence.
Examples can appear in traffic, environmental, work health and safety and other regulatory laws. Penalties vary but often involve fines or prescribed sanctions.
As parliament notes in one discussion paper: “Absolute liability is employed in specific regulatory offences that require individuals involved in activities with potential hazards or harm to exercise utmost care.” Examples include exceeding a posted speed limit, causing pollution, selling alcohol to underage persons, refusing a breath test and disclosing a name in breach of a suppression order. Courts have acknowledged the benefit to the community can outweigh the impact on the accused.
What is the legal basis for an absolute liability offence
According to the Criminal Code 2002, section 24, absolute liability can arise where:
– There are no fault elements required for the physical elements of the offence.
– The defence of honest and reasonable mistake is not available.
Why absolute liability offences exist
Absolute liability offences prioritise public safety, regulatory compliance, simpler prosecution and deterrence where inherently risky activities can harm the public.
By removing the need to prove mens rea, these offences promote swift outcomes where the prosecution only needs to prove the conduct occurred.
This aims to deter harmful conduct while balancing public safety and individual rights in enforcing criminal offences.
Strict liability offences
A strict liability offence is similar to absolute liability because intention, knowledge or fault do not need to be proven. There is one key difference.
Strict liability allows a technical defence that absolute liability does not. Under section 23 of the Criminal Code 2002, strict liability applies where:
– No fault elements are required for the physical elements of the offence.
– The defence of honest and reasonable mistake of fact is available.
As the Attorney General highlights: absolute and strict liability both remove the need to prove intention, knowledge, recklessness, negligence or other fault. The difference is that absolute liability does not permit the reasonable mistake defence.
The honest and reasonable mistake defence
This defence argues the person made an honest and reasonable mistake of fact that led to the prohibited conduct.
It requires showing a genuine belief in a fact and that the belief was reasonable in the circumstances. The person should show they took reasonable steps to ascertain the facts and acted as a responsible, law-abiding citizen would.
If established, it can lead to an acquittal or reduced charges. Application varies by offence and circumstances. Speak with our team at Jameson Law to assess how it may apply.
Honest and reasonable mistake example
If a person is apprehended for driving while their licence was suspended, they face a strict liability charge. If they can show a genuine and reasonable belief that their licence was not suspended, for example they never received a suspension notice, they may have a viable defence.
Need tailored advice on liability or defences. Call (02) 8806 0866 or visit our criminal law page.
