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What is Absolute Liability in Criminal Law?

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The law can be quite complex and confusing. Criminal offences in particular can be hard to understand. The laws vary from state to state and the wording of statutes can sound like it’s written in another language sometimes! This article will break down the notion of absolute and strict liability.

As the Attorney General notes, ‘Absolute liability is comparatively uncommon in state and territorial law.’ However, cases may still arise. For any help with strict and absolute liability, don’t hesitate to contact Jameson Law today for expert legal advice.

Understanding Criminal Law

Proving a crime consists of two parts: the mens rea and the actus reus. The Actus Reus refers to the actual action or behaviour that counts as a criminal offence. It’s about what the person did or didn’t do. Mens rea, on the other hand, deals with the person’s state of mind or intention when they committed the offence. It’s about what they were thinking or what they meant to do.

To figure out if someone is guilty of a crime, both actus reus and mens rea are taken into account. The prosecution needs to show that the person not only did the forbidden act (actus reus) but also had the necessary mental state (mens rea) connected to that offence.

Essentially, the Actus reus focuses on the physical side of things, while mens rea looks at what was going on in the person’s head. Together, they help determine if someone should be held accountable for a criminal offence.

Absolute liability offences

Absolute liability offences are offences where the prosecution does not need to establish a mental element of mens rea of a crime to find an individual guilty. These offences do not require proof of intention, knowledge, or any other mental state. The focus is solely on the actus reus, or the prohibited act itself.

In the context of absolute liability offences, the absence of mens rea means that the accused’s mental state or intention is irrelevant in determining guilt. Thus, even if the act is an honest and reasonable mistake on the part of the plaintiff, this is irrelevant.

Absolute liability offences can be found in various areas of law, such as traffic offences, environmental regulations, occupational health and safety, and other regulatory breaches. Penalties for absolute liability offences can vary depending on the specific offence, and they often involve fines or other 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, surpassing the standard of reasonable care.

These offences encompass situations like surpassing the speed limit of 60 kilometres per hour in a designated 60-kilometre zone, causing pollution to bodies of water, selling alcohol to underage individuals, refusing or neglecting to undergo breath testing, and disclosing a name in violation of a suppression order.

In these instances, the courts have acknowledged that the advantages to the community outweigh any potential adverse effects on the accused individual.”

What is the legal basis for an Absolute liability Offence?

According to the Criminal Code 2002, Section 24, absolute liability offences can occur in the following circumstances – 

-For the physical elements of the related offence, there must be no fault elements (mental requirements related to the offence such as proving intent)

-The defence of honest and reasonable mistakes is not applicable

Why do absolute liability offences exist?

Absolute liability offences exist in NSW law to prioritize public safety, ensure regulatory compliance, simplify prosecution, and enhance deterrence. These offences are applied when engaging in an inherently dangerous activity poses a risk to the public.

In an instance where an offence occurred, the focus is placed on the actus reus, or the prohibited act itself, regardless of the accused’s mental state or intention at the time the offence occurred.

In such a case, By removing the requirement to prove mens rea, these offences promote swift and efficient justice, as the prosecution only needs to provide sufficient evidence that the offence took place.

This approach aims to deter individuals from engaging in conduct that could potentially harm others, while still maintaining a fair balance between public safety and individual rights in the enforcement of criminal offences.

Strict liability offences

A strict liability offence refers to a legal situation where a person can be held liable for committing an offence without the need to prove any intention, knowledge, or fault on their part. It is similar to an absolute liability offence, but a strict liability offence houses one key difference.

Strict liability offences provide the opportunity for the utilization of a technical defence – which an absolute liability offence does not. According to Section 23 of the Criminal Code 2002, specific conditions must be fulfilled for a strict liability offence to be established:

-The offence lacks any required fault elements (such as intention, recklessness, or knowledge) concerning the physical aspects of the offence.

-The defence of an honest and reasonable mistake of fact is available in such cases.

As the Attorney General Highlights: “Absolute liability and strict liability are alike in the absence of any requirement that the prosecution proves intention, knowledge, recklessness, negligence or any other variety of fault.” The sole difference between these modes of criminal responsibility is that an absolute liability offence does not even permit a defence of reasonable mistake of fact.

The honest and reasonable mistake defence

This defence allows an accused person to argue that they made an honest and reasonable mistake of fact, which led to their engagement in the prohibited activity or violation of the law.

For this defence to be successful, several elements must be demonstrated. Firstly, the mistake must be honest, meaning the accused genuinely believed a certain fact to be true. Secondly, the mistake must be reasonable, implying that a reasonable person in the same circumstances would have made the same error. The accused must show that they took reasonable steps to ascertain the facts and acted in a manner consistent with a responsible and law-abiding citizen.

If the defence is successfully established, it can lead to an acquittal or a reduction in the severity of the charges. However, the exact application of the defence may vary depending on the specific offence and circumstances of the case. Contact one of our legal experts at Jameson today to understand how an honest and reasonable mistake offence may apply to your circumstance.

Honest and reasonable mistake example

if an individual is apprehended for driving while their driving privileges were suspended, they face charges of a strict liability offence. However, if they can effectively present evidence demonstrating their genuine and reasonable belief that their license was not suspended – that they never received a license suspension in the mail – then they may potentially mount a successful defence against the charges.


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