Under the Common Law in Australia, the prosecution is typically required to prove the actus reus and mens rea of an offence beyond reasonable doubt. At its simplest, actus reus refers to the ‘guilty act’ and is the physical conduct that constitutes the alleged offence. The mens rea refers to a ‘guilty mind’ and refers to the requisite mental state required to commit an offence, such as intention or recklessness.
Historically, criminal liability at common law required proof of mens rea. In Williamson v Norris [1899] 1 Q.B 14, Lord Russell CJ stated, “The general rule of the English law is that no crime can be committed unless there is mens rea”. In He Kaw Teh v R (1985) 157 CLR 523 Brennan J explained:
“It is implied as an element of the offence that, at the 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.”
However, there is a particular category of offences in which there is no obligation imposed upon the prosecution to prove a mental element – merely that the accused committed the physical act which constitutes the offence. These are called strict and absolute liability offences.
Absolute Liability Offences
In the ACT, an absolute liability offence is created pursuant to Section 24 of the Criminal Code 2002 (ACT). Federally, an analogous provision can be found in Section 6.2 of the Criminal Code Act 1995 (Cth). These provisions provide that when an offence is prescribed absolute liability there will (a) be no fault element for any of the physical elements of the offence and (b) the defence of honest and reasonable mistake of fact is not available.
This means that the prosecution is not required to prove intention, knowledge, recklessness, negligence or any other variety of fault. Instead, all they are required to do is establish that the physical act or conduct which constitutes an offence against the relevant section occurred, and that the conduct or act was done by the accused. This means that an accused may be found criminally liable in circumstances where they were not even aware that they were breaking the law or had no intention of doing so. The accused’s state of mind and the circumstances surrounding the offending are irrelevant and a person will be convicted regardless of the context.
Examples of absolute liability offences can range from comparatively minor offences such as drink driving or driving under the influence of drugs to far more serious offences including terrorism and national security offences.
Strict Liability Offences
Alternatively, strict liability offences are created pursuant to Section 23 of the Criminal Code 2002 (ACT). Federally, an analogous provision can be found in Section 6.1 of the Criminal Code Act 1995 (Cth). Structurally, these provisions are similar to those regulating absolute liability offences. The crucial exception being that the defence of honest and reasonable mistake of fact is available for these offences.
These offences also only require that the physical act occurred and there is still no need to demonstrate an intention to commit the offence. However, for these offences an honest and reasonable mistake of fact will prevent an offender being convicted. This arises where the accused believed certain facts existed at the time of offending, which if true, would mean they were not committing an offence.
Speeding is a common example of a strict liability offence. To charge an individual with speeding the prosecution is not required to prove a fault element, but rather only the objective fact that the person accused was driving over the designated speed limit. However, the accused could negate liability by demonstrating that the car’s speedometer was inaccurate or otherwise defective and that as a consequence of this they honestly and reasonably believed that they had been driving below the speed limit.
Honest and Reasonable Mistake of Fact
In the ACT, this defence is set out by Section 36 of the Criminal Code 2002 (ACT) where:
- when carrying out the conduct making up the physical element, the person considered whether or not facts existed, and was under a mistaken but reasonable belief about the facts; and
- had the facts existed, the conduct would not have been an offence.
Federally, this provision can be found at Section 9.2 of the Criminal Code Act 1995 (Cth).
To successfully raise the defence of honest and reasonable mistake of fact, the accused person bears the onus of demonstrating that:
- They had made an honest mistake, insofar as the mistake itself was genuine and bona fide. The accused person cannot have been taking advantage of favourable circumstances or otherwise be attempting to excuse deliberate unlawful conduct.
- The mistake must be predicated on a belief that is reasonable in the circumstances. This is not a subjective assessment, but rather, the circumstances must be objectively capable of giving rise to the mistaken belief, and an average, reasonable person would have formed the same mistaken belief in the same circumstances.
- The mistake must be of fact and not of law. Accordingly, ignorance of the law is not a valid excuse for breaking the law. An accused person cannot argue that they were unaware of the existence or substance of a law. Instead, they must establish that their conduct would have been lawful in the circumstances they believed existed.
Sam Hines
