A common law principle
Strict and Absolute Liability
There is a common law presumption that, mens rea, an evil intention, or a
knowledge of the wrongfulness of the act, is an essential ingredient in every offence’.
The general requirement of mens rea is said to be ‘one of the most fundamental protections in criminal law’,
and it reflects the idea that it is generally neither fair, nor useful, to subject people to criminal punishment for unintended actions or unforeseen consequences unless these resulted from an unjustified risk (ie recklessness).
Ashworth and Horder write: The essence of the principle of mens rea
is that criminal liability should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences it may have, that they can fairly be said to have chosen the behaviour and consequences.
Some criminal offences, however, do not require proof of fault —
these are described as strict liability and absolute liability offences. The Terms of Reference for this Inquiry ask the ALRC to consider laws that apply strict or
absolute liability to all physical elements of a criminal offence.
However, at this stage of its inquiry, the ALRC is interested in submissions on offences with any strict or absolute liability element which people consider to be unjustified.
This chapter discusses the source and rationale of the mens rea principle; how
the principle is protected from statutory encroachment; and when it may be
justified to create a criminal offence that does not require proof of fault.
The ALRC calls for submissions on two questions.–
What general principles or criteria should be applied to help
determine whether a law that imposes strict or absolute liability
fora criminal offence is justified?
Which Commonwealth laws unjustifiably impose strict or absolute liability
for a criminal offence, and why are these laws unjustified?
In Australia, criminal offences are generally characterised in one of three ways:
mens rea offences— the prosecution must prove a physical element (actus reus)
and a mental element (mens rea); strict liability offences—
the prosecution is not required to prove fault, but there is a defence of reasonable mistake available; and absolute liability offences—
proof of fault is not required and no defences are available.
In He Kaw Teh v R(1985),
Brennan J explained the operation of mens rea as an element in criminal offences: It is implied as an element of the offence that, at t he time when the person who commits the actus reus does the physical act involved, he either—
(a) knows the circumstances which make the doing of that act an offence; or
(b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.
Historically, criminal liabi lity at common law necessarily involved proof of
In Williamson v Norris (1899), Lord Russell CJ said:
The general rule of the English law is that no crime can be committed unless there is mens rea. In his Commentaries on the Laws of England (1765), William Blackstone wrote that, to‘ constitute a crime against human laws, there must be first a vicious will, and secondly, an unlawful act consequent upon such vicious will’.
However, as discussed further below, strict liability offences were increasingly
developed in the mid to late 19th century, particularly so-called ‘regulatory offences’.
In Australia, the common law presumption of fault-based liability is also reflected in statute. Section 5.6 of the Criminal Code(Cth) creates a rebuttable
presumption that, to establish guilt, fault must be proven for each physical element of a Commonwealth offence.
Protections from statutory encroachments Australian Constitution
The Australian Constitution does not expressly require that criminal offences
include the element of mens rea.
Principle of legality
The principle of legality provides some protection to the principle of mens rea.
When interpreting a statute, courts will presume that Parliament did not
intend to create a strict liability offence, unless this intention was made unambiguously clear.
In He Kaw Teh (1985), a majority of the High Court interpreted a provision in the Customs Act 1901 (Cth), which made it an offence to import drugs, as requiring the pro secution to prove that the defendant had an intention to traffic the drugs. Gibbs CJ stated:
t is unlikely that the Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he was doing so.
Justifications for encroachments
Professor Richard Singer has written that defences of strict liability crimes
essentially rest on four grounds: only strict criminal liability can deter profit-
driven manufacturers and capitalists from ignoring the well-being of the consuming public; the inquiry into mens rea would exhaust courts, which have to deal with thousands of ‘minor’ infractions every day;
the imposition of strict liability is not inconsistent with the moral underpinnings of the criminal law generally because the penalties are small, and conviction carries no social stigma; the legislature intended to create strict liability, and can constitutionally do so.
Ashworthand Horder write: The main argument [for strict liability offences]
is a form of protectionism or‘ social defence’.
It maintains that one of the primary aims of the criminal law is the
protection of fundamental social interests. Why should this function
be abandoned when the violation of those interests resulted from some accident or mistake by D?
Strict liability offences began to be developed in the mid to late 19th century.
Regulatory offences were created that were designed to protect individuals from the risks that came with greater industrialisation and mass consumerism. For example, Professor Richard Singer highlights England’s Sale of Food and Drug Act 1860 as one of the first legislative moves towards strict liability.
A landmark English strict liability case is R v Woodrow
(1846) in which a tobacco supplier was convicted of selling adulterated tobacco despite having no knowledge of this fact. 19 On appeal, the Court of Exchequer held that while a conviction was appropriate, so too was a smaller penalty.
R v Woodrow
and subsequent decisions marked the ‘conscious beginning in England of the movement to do away with the requirement of mens rea for petty police offences’.
Some may argue that because it is easier to convict a person of a strict liability
offence, strict liability offences are a more effective deterrent to criminal conduct
For example, people may be less likely to drive dangerously if they know they can be convicted of a driving offence whether or not it can be shown that they intended todrive dangerously.
Another reason sometimes given to justify strict liability offences is that it is
onerous on the prosecution to prove the state of mind of the accused.
‘The inquiry into mens rea would exhaust courts, which have to deal with thousands of “minor” infractions every day.
Strict and Absolute liability
In some cases strict or absolute liability offences may also assist prosecuting
agencies where offences need to be dealt with expeditiously to ensure public
confidence in the regulatory regime
The Commonwealth Guide to Framing Offences 2011 provides that the application of strict and absolute liability to all physical elements of a criminal offence should only be considered appropriate where: The punishment of offences not involving fault is likely to significantly enhance the effectiveness of the enforcement regime in deterring offences. There are legitimate grounds for penalising persons lacking ‘fault’, for example because they will be placed on notice to guard against the possibility of any contravention. In the case of absolute liability, there should also be legitimate grounds for penalising a person who made an honest and reasonable mistake of fact.
Although some laws that apply strict or absolute liability to all physical elements of a criminal offence may be justified, the ALRC invites submissions identifying laws that are not justified, and explaining why these laws are not justified.