Crimina WEEK 3
l Law B Statutory Interpretation and
Mens Rea summary
NOTE
I had to simplify things a bit, discussions can get too complicated and it’s difficult to explain
everything here. Of course, I couldn’t discuss all the content here and I focused on what I thought you
may need clarification.
If you found an error, please let me know and I will update the document.
INTRO TO STRICT LIABLITY
Week 3 content is mainly about strict liability and a bit of absolute liability. But I will focus on strict
liability.
Generally, in offences that we were discussing, there was an MR element. For instance, ‘knowledge’
of consent in sexual assault.
Here is another example:
Section 37(1A) Crimes Act
37 Choking, suffocation and strangulation
(1A) A person is guilty of an offence if the person intentionally chokes, suffocates or strangles
another person without the other person's consent.
Maximum penalty--imprisonment for 5 years.
You can see an MR element is attached to each relevant AR element. Unlike these offences, offences
of strict and absolute liability don’t have an MR element.
That’s how, we have 3 categories of offences based on MR:
, 1. Offences of MR
– Has MR element. Usually subjective MR standard, i.e. intent, knowledge, recklessness and
occasionally negligence such as in involuntary manslaughter.
2. Strict liability*
– No MR element to prove, but defendant can raise HRMF (Honest and Reasonable Mistake of Fact
defence)
3. Absolute liability*
– P does not have to prove anything re D’s mental state, and there is no HRMF, but often statutory
defence
Now, let’s see what does it mean when an offence doesn’t have an MR element.
To do so, we box the offence, break down AR elements and requisite MR elements, similar to the
offence in s 37 (chocking, suffocation, and strangulation) that we did above.
Road Transport Act 2013 s53
EXAMPLE 1
53 Driver must be licensed
(1) A person must not, unless exempted by the regulations: (a) drive a motor vehicle on any road or
road related area without being licensed for that purpose
Maximum penalty: 20 penalty units.
Road Transport Act 2013 s 53
EXAMPLE 1 CONTD
Conduct Circumstance Consequence
AR 1. Driving a motor vehicle on a road 2. Unlicensed NA
MR Intent ? NA
The starting point in all the statutory offences is to assume that there is an MR element attaching to
each AR elements of the offence. This presumption in the criminal law, is based on the guilty mind is
an essential part of any crime.
You should first outline the AR elements. For each AR elements, there must be a relevant MR
element attached to it. For instance, in the example above, under ‘conduct’ component, for AR
element of ‘driving a motor vehicle on the road’ we have MR element of ‘intent’ (generally, as we
discussed in the seminar, the AR for the conduct component is generally ‘intent’).
But once you write down all the elements of this crime, you will realise that the MR element under
‘licensed’ is missing. Meaning, this offence doesn’t have an MR element for circumstance, which
l Law B Statutory Interpretation and
Mens Rea summary
NOTE
I had to simplify things a bit, discussions can get too complicated and it’s difficult to explain
everything here. Of course, I couldn’t discuss all the content here and I focused on what I thought you
may need clarification.
If you found an error, please let me know and I will update the document.
INTRO TO STRICT LIABLITY
Week 3 content is mainly about strict liability and a bit of absolute liability. But I will focus on strict
liability.
Generally, in offences that we were discussing, there was an MR element. For instance, ‘knowledge’
of consent in sexual assault.
Here is another example:
Section 37(1A) Crimes Act
37 Choking, suffocation and strangulation
(1A) A person is guilty of an offence if the person intentionally chokes, suffocates or strangles
another person without the other person's consent.
Maximum penalty--imprisonment for 5 years.
You can see an MR element is attached to each relevant AR element. Unlike these offences, offences
of strict and absolute liability don’t have an MR element.
That’s how, we have 3 categories of offences based on MR:
, 1. Offences of MR
– Has MR element. Usually subjective MR standard, i.e. intent, knowledge, recklessness and
occasionally negligence such as in involuntary manslaughter.
2. Strict liability*
– No MR element to prove, but defendant can raise HRMF (Honest and Reasonable Mistake of Fact
defence)
3. Absolute liability*
– P does not have to prove anything re D’s mental state, and there is no HRMF, but often statutory
defence
Now, let’s see what does it mean when an offence doesn’t have an MR element.
To do so, we box the offence, break down AR elements and requisite MR elements, similar to the
offence in s 37 (chocking, suffocation, and strangulation) that we did above.
Road Transport Act 2013 s53
EXAMPLE 1
53 Driver must be licensed
(1) A person must not, unless exempted by the regulations: (a) drive a motor vehicle on any road or
road related area without being licensed for that purpose
Maximum penalty: 20 penalty units.
Road Transport Act 2013 s 53
EXAMPLE 1 CONTD
Conduct Circumstance Consequence
AR 1. Driving a motor vehicle on a road 2. Unlicensed NA
MR Intent ? NA
The starting point in all the statutory offences is to assume that there is an MR element attaching to
each AR elements of the offence. This presumption in the criminal law, is based on the guilty mind is
an essential part of any crime.
You should first outline the AR elements. For each AR elements, there must be a relevant MR
element attached to it. For instance, in the example above, under ‘conduct’ component, for AR
element of ‘driving a motor vehicle on the road’ we have MR element of ‘intent’ (generally, as we
discussed in the seminar, the AR for the conduct component is generally ‘intent’).
But once you write down all the elements of this crime, you will realise that the MR element under
‘licensed’ is missing. Meaning, this offence doesn’t have an MR element for circumstance, which
