Why does it matter if strict liability and absolute liability are different?  If the charge is an absolute liability offence then there is virtually no defence to the charge, other than to say that you were not at the crime scene at all or the alleged 'crime' didn't happen in fact. 

It is important to get advice from a lawyer who knows what he is talking about from the start.



What is an offence of strict liability?

Generally, a criminal offence requires mens rea.  Mens rea is a latin phrase that means a guilty mind, that is the state of mind required to commit the crime. Traffic offences are often strict liability offences, so this means that the Police only need to prove that you did speed, not that you intended to speed.

This does not mean that there are no defences to a defence of strict liability.

For instance, in the example given above, a person might check their car and find that the speedometer in their car was incorrect.  This is known as an honest and reasonable mistake of fact.  That is, they honestly believed that they were travelling at the speed limit, and it is reasonable for a person to believe their speedometer if they are only travelling a small amount over the speed limit.  Even if their speedometer was wrong, it would not be reasonable if they were travelling significantly over the speed limit for the person to trust the speedometer, a reasonable person would wonder why they were flying past the other drivers.  It is also still necessary for the Police to prove the offence, so a person might challenge the reliability of the speed camera that the Police are depending upon.




What is absolute liability?

Absolute liability is different to strict liability.  No mens rea is required for both, but in the case of absolute liability there is no defence apart from an act of God.  

In this case a defence of honest and reasonable mistake is not allowed, so for instance even if the speedometer was wrong that wouldn't matter.  Speeding offences are not offences of absolute liability, but if they were, the defences of honest and reasonable mistake would be lost.  It would still be necessary for the Police to prove the crime, so for instance a faulty speed camera would be a defence, but the defendant could only attack whether or not the crime actually occurred.  




Absolute liability is usually reserved for serious crimes, and crimes where providing mens rea or defending honest and reasonable mistake would be difficult such as environmental crimes, or laws surrounding public health.

To continue the driving example, in NSW obstructing a public road with a vehicle is an offence of absolute liability, so as long as the criteria have been met (that the vehicle was obstructing a public road, that a notice was affixed to the vehicle etc.) the owner of the vehicle has no defence.  A more serious example of an absolute liability crime is rescuing a prisoner from criminal detention, the defence of honest and reasonable mistake of fact (I didn't realise that they were in criminal detention) is not a defence.

The Court will hold the Police or prosecution to a higher standard of proof if the crime is a crime of absolute liability.




Bruce Coode

What should I do?

Don't guess at these things or research them yourself.  The defences that you can give to either a strict liability or absolute liability offence are limited, and if you start off with the wrong defence you might unwittingly admit to something that makes it impossible to later defend yourself.  Bruce Coode has been defending criminal clients for over forty years and is very experienced at dealing with the nuances between different defences and situations.  He will speak to you in plain English.  Your first half hour appointment is free, and during that time he can tell you what he can do and how much that will cost.  Call and make an appointment today on 02 47 315 999.




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