Criminal Law and Procedure B Exam Notes
Interpreting Statutory offences Week 3
What is the Mens Rea?
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).
Three types of offences : an overview
1. Offences of MR : MR element
2. Strict liability : No MR, but defendant can raise Honest and Reasonable Mistake of
Fact
3. Absolute liability : P does not have to prove anything re D’s mental state, no HRMF,
but often statutory defence
Actus Reus Elements
Conduct : act or omission
Circumstance : some external factor that makes the conduct criminal
Consequence : the act or omission causes a particular outcome or result
Presumption of MR
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
Displacing presumption of MR
1. Words of the statute
2. Subject matter with which the statute deals
3. Utility of imposing strict liability
Strict liability offences and HRMF Defence
o P must prove D performed AR but does not have to prove MR
o D may raise some evidence (CTM) of HRMF to exculpate him/herself
o If D successfully raises evidence, P has to prove BRD the absence of HRMF
Generally statutory offences of a regulatory nature
, Criminal Law and Procedure B Exam Notes
Strict liability offences of a regulatory nature
o Corporate and prudential regulation
o Environmental protection
o Work health and safety laws
o Customs and border protection legislation
o Copyright law ect.
Rationales
o Aid enforcement of the law
o Put people / corporations on notice
o Encourage prudence ; taking of preventative steps
Senate scrutiny of Bills Committee, Application of Absolute and Strict Liability Offences in
Commonwealth Legislation (2002)
o Where it is difficult to prosecute fault provisions – particularly intent
o To overcome ‘knowledge of law’ issues, where a physical element incorporates a
reference to a legislative provision
o Where it is necessary to protect the general revenue
o To ensure the integrity of a regulatory regime
Burden of proof re HRMF
D bears the evidentiary burden to raise some evidence of the issue : CTM
But if D successfully raises the issue of HRMF, P bears onus of disproving HRMF BRD.
What needs to be proved for HRMF
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)
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)
Ostrowski v Palmer (2004) 218 CLR 493
o D fishing for rock lobsters in a prohibited area. But he believed that where he was
fishing was not a prohibited area.
o D based this belief on info provided by Fisheries Dept, but they had left out the
relevant regs.
Held:
o The offence was one of strict liability and hence the HRMF applied.
o 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
, Criminal Law and Procedure B Exam Notes
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.
Absolute Liability Offence
o Rare
o Clear intention
o Often a statutory defence
Effect of absolute liability
P only has to prove that D performed AR
No opportunity for D to raise argument of HRMF
Note: such offences are rare and often allow for a statutory defence :
o Where statutory defence, D has to prove the defence on the balance of probabilities
Summary
Offences may be categorised as :
1. Subjective MR offence
2. Strict liability
3. Absolute liability offences
In order to find an offence one of strict liability must displace presumption of MR
Where strict liability, D may raise HRMF
MR Offence
o Offence expresses MR : ‘knowingly’, ‘recklessly’
o Significant punishment : e.g. life imprisonment
Strict Liability offence
o Regulatory offences (public health, licencing, pollution offences ect) silent as to MR –
defined by AR only
o Punishment is categorically smaller
Absolute Liability offence
o clear expression by legislative, usually where statutory defence provided
, Criminal Law and Procedure B Exam Notes
o very rare
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
Burden of proof:
There are two types of burden of proof:
Evidentiary (or evidential)
Raising the issue sufficiently to have the judge call on the other side to answer;
enough evidence to make the situation alleged a reasonable possibility – see
CTM [2008] HCA, Khazaal [2012] HCA
Persuasive (or legal)
The burden of proving the existence of the matter.
Or the burden on a party at trial to present sufficient evidence to persuade the fact-
finder, by the applicable standard of proof, of the truth of a fact or assertion and
to convince the fact-finder to interpret the facts in a way that favours the party.
Standard of proof is the amount of evidence necessary to prove an assertion or
claim in a trial. In other words, how much evidence (standard) is required to persuade
the fact finder/ legally proof a matter.
We generally refer to two standards of proof under persuasive (or legal) burden of proof:
- Beyond reasonable doubt
- On the balance of probabilities
Imagine you are talking to your friend (‘friend A’) and then your other friend (‘friend B’)
tells you that some store is selling your most favourite snack for half price. You don’t believe
them, and friend A says ‘that’s bullshit’). You don’t bother to check the store. But then friend
B shows you a photo that says your favourite snack is being sold for half price. You have
some doubts (so your friend B hasn’t proved it yet), but you say ‘that’s enough evidence to
check that store’. Friend A is pissed off, and still argue that’s bullshit, but if they wanna
prove the store doesn’t sell the snack for half price, they must provide evidence and prove
beyond reaosnble doubt.
That’s what we call evidentiary burden of proof. Enough evidence that the other party has to
prove the matter is otherwise (usually P has to prove BRD).
Interpreting Statutory offences Week 3
What is the Mens Rea?
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).
Three types of offences : an overview
1. Offences of MR : MR element
2. Strict liability : No MR, but defendant can raise Honest and Reasonable Mistake of
Fact
3. Absolute liability : P does not have to prove anything re D’s mental state, no HRMF,
but often statutory defence
Actus Reus Elements
Conduct : act or omission
Circumstance : some external factor that makes the conduct criminal
Consequence : the act or omission causes a particular outcome or result
Presumption of MR
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
Displacing presumption of MR
1. Words of the statute
2. Subject matter with which the statute deals
3. Utility of imposing strict liability
Strict liability offences and HRMF Defence
o P must prove D performed AR but does not have to prove MR
o D may raise some evidence (CTM) of HRMF to exculpate him/herself
o If D successfully raises evidence, P has to prove BRD the absence of HRMF
Generally statutory offences of a regulatory nature
, Criminal Law and Procedure B Exam Notes
Strict liability offences of a regulatory nature
o Corporate and prudential regulation
o Environmental protection
o Work health and safety laws
o Customs and border protection legislation
o Copyright law ect.
Rationales
o Aid enforcement of the law
o Put people / corporations on notice
o Encourage prudence ; taking of preventative steps
Senate scrutiny of Bills Committee, Application of Absolute and Strict Liability Offences in
Commonwealth Legislation (2002)
o Where it is difficult to prosecute fault provisions – particularly intent
o To overcome ‘knowledge of law’ issues, where a physical element incorporates a
reference to a legislative provision
o Where it is necessary to protect the general revenue
o To ensure the integrity of a regulatory regime
Burden of proof re HRMF
D bears the evidentiary burden to raise some evidence of the issue : CTM
But if D successfully raises the issue of HRMF, P bears onus of disproving HRMF BRD.
What needs to be proved for HRMF
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)
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)
Ostrowski v Palmer (2004) 218 CLR 493
o D fishing for rock lobsters in a prohibited area. But he believed that where he was
fishing was not a prohibited area.
o D based this belief on info provided by Fisheries Dept, but they had left out the
relevant regs.
Held:
o The offence was one of strict liability and hence the HRMF applied.
o 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
, Criminal Law and Procedure B Exam Notes
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.
Absolute Liability Offence
o Rare
o Clear intention
o Often a statutory defence
Effect of absolute liability
P only has to prove that D performed AR
No opportunity for D to raise argument of HRMF
Note: such offences are rare and often allow for a statutory defence :
o Where statutory defence, D has to prove the defence on the balance of probabilities
Summary
Offences may be categorised as :
1. Subjective MR offence
2. Strict liability
3. Absolute liability offences
In order to find an offence one of strict liability must displace presumption of MR
Where strict liability, D may raise HRMF
MR Offence
o Offence expresses MR : ‘knowingly’, ‘recklessly’
o Significant punishment : e.g. life imprisonment
Strict Liability offence
o Regulatory offences (public health, licencing, pollution offences ect) silent as to MR –
defined by AR only
o Punishment is categorically smaller
Absolute Liability offence
o clear expression by legislative, usually where statutory defence provided
, Criminal Law and Procedure B Exam Notes
o very rare
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
Burden of proof:
There are two types of burden of proof:
Evidentiary (or evidential)
Raising the issue sufficiently to have the judge call on the other side to answer;
enough evidence to make the situation alleged a reasonable possibility – see
CTM [2008] HCA, Khazaal [2012] HCA
Persuasive (or legal)
The burden of proving the existence of the matter.
Or the burden on a party at trial to present sufficient evidence to persuade the fact-
finder, by the applicable standard of proof, of the truth of a fact or assertion and
to convince the fact-finder to interpret the facts in a way that favours the party.
Standard of proof is the amount of evidence necessary to prove an assertion or
claim in a trial. In other words, how much evidence (standard) is required to persuade
the fact finder/ legally proof a matter.
We generally refer to two standards of proof under persuasive (or legal) burden of proof:
- Beyond reasonable doubt
- On the balance of probabilities
Imagine you are talking to your friend (‘friend A’) and then your other friend (‘friend B’)
tells you that some store is selling your most favourite snack for half price. You don’t believe
them, and friend A says ‘that’s bullshit’). You don’t bother to check the store. But then friend
B shows you a photo that says your favourite snack is being sold for half price. You have
some doubts (so your friend B hasn’t proved it yet), but you say ‘that’s enough evidence to
check that store’. Friend A is pissed off, and still argue that’s bullshit, but if they wanna
prove the store doesn’t sell the snack for half price, they must provide evidence and prove
beyond reaosnble doubt.
That’s what we call evidentiary burden of proof. Enough evidence that the other party has to
prove the matter is otherwise (usually P has to prove BRD).
