(weeks 1,2 and 9 not examinable)
What is the MR? Can it be displaced?
(week 3)
There is a presumption in the criminal law that a guilty mind is an essential part of any
crime. The presumption however may be displaced : (HKT)
Sometimes the MR in statutory offences is clear as the intention of parliament is
expressly stated. But often statutory offences are defined with only respect to external
elements (AR).
What type of offence is it?
(week 3)
Offences of MR
● MR element.
● Intent, recklessness, knowledge.
Strict liability
● No MR element, but the defendant can raise HRMF.
● Punishment is categorically smaller
● P must prove D performed AR but does not have to prove MR.
● D may raise some evidence (CTM) of HRMF to exculpate him/herself.
● If D successfully raises evidence, P has to prove BRD the absence of HRMF.
- Examples include: riding on public transport without paying, speeding, harming
Aboriginal places or objects.
- Honest and reasonable mistake of fact
1. D had an honest belief (affirmative belief) in a particular statement of
affairs
What does ‘honest’ mean?
o The belief that must make the mistake innocent (Mayer v Merchant)
2. Constitutes a mistake of fact (not of law) (Ostrowski v Palmer)
What does ‘mistake’ mean?
o SRA v Hunter District Water Board
3. This mistake was reasonable
o The mistake must be reasonable (the objective test).
→ D bears the evidentiary burden to raise some evidence of the issue: see
CTM. But, if D successfully raises the issue of HRMF, P bears onus of disproving
HRMF BRD, ie P has the probative burden.
,Absolute liability
● P does not have to prove anything re D’s mental state, no HRMF, but often statutory
defence.
● clear expression by legislative, usually where statutory defence provided
● very rare
● Where statutory defence, D has to prove the defence on the balance of
probabilities
- Example : offences of people smuggling : AL applies to the element of the
offence
(Often only one component is SL or AL, not the whole ‘offence’. So, the question then is: “What
is the MR required in relation to each AR element”)
When using liability :
1. words of the statute : whether the words of the offence provision makes
expressly or by necessary implication, require an MR element
2. an examination of the purpose of the offence, whether real crime or regulation
(examine severity of punishment) : subject matter with which the statute deals
3. utility of imposing strict liability : would that particular provision encourage
people to take action or take steps to prevent the behaviour from happening
,Is it a public order offence?
(week 4)
There is no set definition of a public order offence. However they can be described as
offences that regulate, control and criminalise behaviour in public. The focus is on
behaviour that is indecent, insulting, abusive, offensive and / or risky. It captures a
diverse set of offences from trivial offences of a regulatory character (e.g. littering) to
serious violent offences (e.g. riot and affray).
● often public order offences are underpinned by contests over what public space
is for
● public order offences may be about reinforcing middle class morality than about
public safety
● public order offences continue to impact certain social groups more than others,
notably homeless people, young people, and Torres Strait Islander communities.
Public order offences as police powers
Public order offences are often used to control and regulate situations, people or groups
rather than to control the offending behaviour. Many offences are highly discretionary
giving police broad discretion on whether to intervene or not. As a consequence, there
is a blurring of substantive criminal offences and police powers in this area of law.
Summary Offences Act 1988 (NSW)
o s 4 offensive conduct
o s 4A offensive language
o collectively = ‘offensive behaviour’
Offensive behaviour AR
Actus reus for s 4 Offensive Conduct and s 4A Offensive Behaviour :
AR 1 = words / conduct
- Language = using words / speech
o Stutsel v Reid
- Conduct = more than mere words
o Pfeiffer
o Pregelji
AR 2 = Offensive
- For behaviour to be offensive, it must be likely to ‘arouse anger, resentment,
disgust, or outrage in the mind of a reasonable man’ : (Inglis v Fish [1961] ;
Ball v McIntyre (1966))
, - What is offence changes overtime with community standards : (Police v
Butler ; Jolly v R)
- Characteristics of the reasonable person : (Ball v McIntyre (1966))
o ‘Tolerant person’
o Contemporary viewpoint
- Does anyone actually need to be offended : (Connolly v Willis)
o No one needs to be present at the time of the offence
o Prosecution doesn’t need to prove that someone was offended
These cases are often highly discretionary, and rarely subject to judicial scrutiny. It often
means that police and magistrates are the ones who decide what is offensive.
AR 3 = Proximity
Under s 4 : offensive conduct, ‘in or near, or within view or hearing from, a public place
or school’
Under s 4 : offensive language, ‘in or near, or within hearing from, a public place or
school’
Definition of public place and school in s 3 SOA
Offensive behaviour MR
He Kaw Teh : Presumption of MR, but can be displaced by looking at words of statute,
subject matter + utility of making offence SL.
Jeffs v Graham: Crown must prove BRD that the person charged had voluntarily
engaged in the conduct complained of.
‘Blind spot’ in the criminal law as sections 4 and 4A are silent as to the MR
What is the MR? Can it be displaced?
(week 3)
There is a presumption in the criminal law that a guilty mind is an essential part of any
crime. The presumption however may be displaced : (HKT)
Sometimes the MR in statutory offences is clear as the intention of parliament is
expressly stated. But often statutory offences are defined with only respect to external
elements (AR).
What type of offence is it?
(week 3)
Offences of MR
● MR element.
● Intent, recklessness, knowledge.
Strict liability
● No MR element, but the defendant can raise HRMF.
● Punishment is categorically smaller
● P must prove D performed AR but does not have to prove MR.
● D may raise some evidence (CTM) of HRMF to exculpate him/herself.
● If D successfully raises evidence, P has to prove BRD the absence of HRMF.
- Examples include: riding on public transport without paying, speeding, harming
Aboriginal places or objects.
- Honest and reasonable mistake of fact
1. D had an honest belief (affirmative belief) in a particular statement of
affairs
What does ‘honest’ mean?
o The belief that must make the mistake innocent (Mayer v Merchant)
2. Constitutes a mistake of fact (not of law) (Ostrowski v Palmer)
What does ‘mistake’ mean?
o SRA v Hunter District Water Board
3. This mistake was reasonable
o The mistake must be reasonable (the objective test).
→ D bears the evidentiary burden to raise some evidence of the issue: see
CTM. But, if D successfully raises the issue of HRMF, P bears onus of disproving
HRMF BRD, ie P has the probative burden.
,Absolute liability
● P does not have to prove anything re D’s mental state, no HRMF, but often statutory
defence.
● clear expression by legislative, usually where statutory defence provided
● very rare
● Where statutory defence, D has to prove the defence on the balance of
probabilities
- Example : offences of people smuggling : AL applies to the element of the
offence
(Often only one component is SL or AL, not the whole ‘offence’. So, the question then is: “What
is the MR required in relation to each AR element”)
When using liability :
1. words of the statute : whether the words of the offence provision makes
expressly or by necessary implication, require an MR element
2. an examination of the purpose of the offence, whether real crime or regulation
(examine severity of punishment) : subject matter with which the statute deals
3. utility of imposing strict liability : would that particular provision encourage
people to take action or take steps to prevent the behaviour from happening
,Is it a public order offence?
(week 4)
There is no set definition of a public order offence. However they can be described as
offences that regulate, control and criminalise behaviour in public. The focus is on
behaviour that is indecent, insulting, abusive, offensive and / or risky. It captures a
diverse set of offences from trivial offences of a regulatory character (e.g. littering) to
serious violent offences (e.g. riot and affray).
● often public order offences are underpinned by contests over what public space
is for
● public order offences may be about reinforcing middle class morality than about
public safety
● public order offences continue to impact certain social groups more than others,
notably homeless people, young people, and Torres Strait Islander communities.
Public order offences as police powers
Public order offences are often used to control and regulate situations, people or groups
rather than to control the offending behaviour. Many offences are highly discretionary
giving police broad discretion on whether to intervene or not. As a consequence, there
is a blurring of substantive criminal offences and police powers in this area of law.
Summary Offences Act 1988 (NSW)
o s 4 offensive conduct
o s 4A offensive language
o collectively = ‘offensive behaviour’
Offensive behaviour AR
Actus reus for s 4 Offensive Conduct and s 4A Offensive Behaviour :
AR 1 = words / conduct
- Language = using words / speech
o Stutsel v Reid
- Conduct = more than mere words
o Pfeiffer
o Pregelji
AR 2 = Offensive
- For behaviour to be offensive, it must be likely to ‘arouse anger, resentment,
disgust, or outrage in the mind of a reasonable man’ : (Inglis v Fish [1961] ;
Ball v McIntyre (1966))
, - What is offence changes overtime with community standards : (Police v
Butler ; Jolly v R)
- Characteristics of the reasonable person : (Ball v McIntyre (1966))
o ‘Tolerant person’
o Contemporary viewpoint
- Does anyone actually need to be offended : (Connolly v Willis)
o No one needs to be present at the time of the offence
o Prosecution doesn’t need to prove that someone was offended
These cases are often highly discretionary, and rarely subject to judicial scrutiny. It often
means that police and magistrates are the ones who decide what is offensive.
AR 3 = Proximity
Under s 4 : offensive conduct, ‘in or near, or within view or hearing from, a public place
or school’
Under s 4 : offensive language, ‘in or near, or within hearing from, a public place or
school’
Definition of public place and school in s 3 SOA
Offensive behaviour MR
He Kaw Teh : Presumption of MR, but can be displaced by looking at words of statute,
subject matter + utility of making offence SL.
Jeffs v Graham: Crown must prove BRD that the person charged had voluntarily
engaged in the conduct complained of.
‘Blind spot’ in the criminal law as sections 4 and 4A are silent as to the MR
