Absolute/Strict Liability and Presumed/Implied Mens Rea.

Question 1

What question to ask if their is no Mens rea element in the offence?

Answer 1

Ask the question: is it a truly criminal offence.

Question 2

If the offence is NOT truly criminals, what are the 2 options for proceeding forward in prosecution?

Answer 2

1. Absolute Liability.

2. Strict Liability.

Question 3

If the offence IS truly criminal, what are the two options for proceeding forward in the prosection?

Answer 3

1. Implied Mens Rea

2. Presumed Mens Rea.

Question 4

Outcome of Absolute liability offences?

Answer 4

Only the AR element of the offence needs to be met for liability

Question 5

Why does absolute liability not require any Mens Rea?

Answer 5

Most AL offences are general public welfare offences. The consequences of the damages is high, therefore the prevention of the damages (the end result of prosecution is more important than the offenders Mens Rea.

Question 6

Common examples of AL offences?

Answer 6

Traffic offences, Heath and safety offences for work places, littering.

Question 7

What is the difference between a strict liability offence and a absolute liability offence?

Answer 7

Strict liability offences gives the D a chance to avoid liability if they can prove ‘total absence of fault’.

Question 8

How to prove absence of fault in SL offences?

Answer 8

Either:

• They could not have prevented the AR
• Caused the AR but did so w/o being at fault.

Question 9

Case of unsuccessful defense on SL?

Answer 9

[Tifanga]- Visa expired D can’t afford to leave the country, but D was aware that he had to leave the country after 6 months and did not plan ahead. D could not show an absence of fault.

Question 10

Case of successful defense of SL?

Answer 10

[Finau]- Visa expired, D couldn’t leave the country due to medical compilations. It was ruled by the court as an absence of fault.

Question 11

How to differentiate between absolute and strict liability?

Answer 11

AL only applies if “parliament clearly intends it, or if it is a regulation”. You could perhaps also argue that the offence needs to be AL because of an ‘overwhelming national interest’

Question 12

The 2 options if no mens rea in the offence and the offence is ‘truly criminal’?

Answer 12

1. Implied Mens Rea

2. Presumed Mens Rea

Question 13

What is implied Mens rea?

Answer 13

When a Mens rea element is read in to the offence which the P is required to prove D had.

Question 14

What case argues which MR should be read in for Implied Mens Rea cases?

Answer 14

[Cameron]- Intention foremost, recklessness to a lesser extent.

Question 15

What do the parties have to prove in Implied Mens Rea cases?

Answer 15

P must prove AR and IPMR. If P cant prove IPMR the D can argue P didn’t prove all elements of the offence. It is P’s job to realize they have to prove intention and D must know and hold D to this account.

Question 16

What is Presumed Mens rea?

Answer 16

Presuming the Mens rea has been met but allowing a defense of ‘honest belief on reasonable grounds’.

Question 17

Two main cases for presumed MR

Answer 17

1. Strawbridge

2. Cameron

Question 18

Facts of Strawbridge?

Answer 18

D is women who plants mustard sees, which she doesn’t realize is cannibis. Charged with cultivating cannabis which had no Mens Rea.

Question 19

Ratio of Strawbridge in the HC?

Answer 19

High Court. Trial judge says their is no MR and since it’s not ‘truly criminal’, judge treated it as AL. Judge was like wtf, lets take this too the Court of Appeal, jury guilted really didn’t have a choice.

Question 20

Decision of Strawbridge in the COA?

Answer 20

‘parliament could not have intended something with a sentence of 14 years. We think it is important the GOVT makes it clear that’s what they intend, we can’t believe parliament has done this. SO….
- In the absence of evidence to the contrary, knowledge (or intent) on her part will be presumed. But if there is some evidence that the accused honestly believed on reasonable grounds that her act was innocent then she is entitled to be acquitted.

Question 21

Ratio of Strawbridge in COA?

Answer 21

1. P does not have to prove MR, it is presumed.

2. D has to argue that there is evidence D had an honest belief that is was not cannibis then she can be acquitted.

Question 22

Ratio for Presumed Mens Rea defense [Strawbridge] ?

Answer 22

“In the absence of evidence to the contrary, knowledge (or intent) on her part will be presumed.. If their is some evidence that D “honestly believed “ on reasonable grounds their act was innocent D is entitled to acquittal.

Question 23

Guidance Cameron gives on presumed Mens rea?

Answer 23

Cameron guides us to only use Presumed Mens rea (note that Cameron does not talk about implied Mens Rea.

Question 24

Difference between Implied Mens Rea and Presumed Mens Rea procedurally?

Answer 24

Implied Mens Rea: Courts read in the Mens Rea and P must prove it.
Presumed Mens Rea: court reads in Mens Rea requirement, assuming ut had been met. P doesn’t have to prove, D defends.