Strict Liability & Absolute Liability Offences – Criminal Law

Law involves various technicalities that can be difficult for a common citizen to understand. However, criminal offences and their prosecution commonly follow similar overarching guiding principles. The significant difference is how each specific state handles the case. If you are facing charges of strict liability offence or absolute liability offence in the Australian Capital Territory, it’s crucial to get a better understanding of the two offences.

Absolute Liability Offence

Although rare, absolute liability offences can occur, it’s crucial to know your next legal steps. According to the Criminal Code 2002, Section 24, absolute liability offences can occur in the following circumstances – 

• For the physical elements of the related offence, there must be no fault elements (mental requirements related to the offence such as proving intent)
• The defence of honest and reasonable mistakes is not applicable.

Strict Liability Offence

Unlike absolute liability offences, strict liability creates the possibility of a technical defence. Moreover, according to the Criminal Code 2002, Section 23, a strict liability defence is applicable only when it meets the following requirements – 

• No fault elements exist – it includes recklessness, intention, knowledge, etc. on the part of the accused) – responsible for the physical elements of the offence
• The defence of reasonable and honest mistake exists

Hence, to make things simpler, while absolute liability offences usually depend on the physical element of the offence, strict liability offences create an opportunity for defence where the accused can justify and prove that it was an honest and reasonable mistake.

An excellent example to describe such a case would be an individual caught driving while their license – their legal right to drive – was suspended for whatever reasons. The police will charge them with a strict liability offence. In the event that they can successfully bring sufficient evidence that they were mistaken – not aware about their license suspension – they may be able to successfully defend their case.

The defence of honest and reasonable mistake

An honest and reasonable mistake can be a defence for an offender facing charges of strict liability offence in Court. It describes a situation where the accused was under the impression of certain facts at the time of the offence, which, if true, would mean he didn’t commit the offence.

In order to successfully raise the defence of honest and reasonable mistake, the accused must fulfil the following requirements –

• The mistake was entirely honest, with no intention involved. The accused must have committed a genuine mistake and prove it in Court to be eligible for a defence of honest and reasonable mistake.
• The belief relied on favourable circumstances, i.e. the mistake would’ve been reasonable in the assumed situation. Circumstances must objectively give rise to the mistaken belief, proving that any other individual could have formed the same belief in the same situation. However, the Court will not recognise any individual idiosyncrasies in this case.
• The mistake is legible and not any ignorance of the law. An accused person trying to raise the defence must show that they were not mistaken regarding the law and any relevant legal requirements, but rather the circumstances made it seem like the case was within legal boundaries. 

Burden of Proof

The prosecution will have the onus of proving the offence – whether it is an absolute liability or strict liability charge. This is the burden of proof. However, the prosecution will only need to prove that the offence occurred. Meanwhile, it is up to the offender to prove their intentions behind the offence – or lack thereof.

Then, the prosecution must prove this beyond a reasonable doubt. This is the standard of proof. The Court will not declare the offender guilty until the burden and standard of proof are met. In the case that the prosecution is unable to do so, the Court will find the offender not guilty. However, in the case that the prosecution succeeds in proving the offence beyond a reasonable doubt, the offender can raise the defence of honest and reasonable mistakes. Once that happens, the onus will again rely on the prosecution to prove the defendant’s lack of mistaken belief beyond a reasonable doubt.

Reasonable situations

There are many reasonable situations where the Court can find the defence of honest and reasonable mistake applicable. One of which is driving with a suspended license. In a situation where the driver was unaware of the suspension of his license and is caught driving, the Court will recognise a strict liability charge.

The defence can demonstrate that their genuine yet mistaken belief was that their license was still valid at the time of the offence. This can possibly happen if a person changes their residential address and hence, fails to receive the notifications of their license suspension to their new address. Therefore, the individual wouldn’t be aware of the suspension and may stay under the belief that they are licensed.

No-fault liability

Both – strict liability and absolute liability – come under the no-fault liability principle. It states that if a person or an organisation is in possession of any dangerous/hazardous substance of non-natural use, and if that substance creates any danger, the person or organisation will be liable for the other party’s loss. Such substances can include any harmful chemicals or gas. The rule implies that if a person or organisation is a part of the situation described, they will be liable for the losses even if there was no negligence on their part. This is also commonly known as the rule of strict liability.

The three important requirements for such a charge are –

• The individual brought the dangerous substance to someone else’s property.
• The substance is of non-natural use.
• The substance escaped (intentionally or unintentionally) and caused damage.

Exceptions to the rule of strict liability 

Despite the set requirements of the rule of strict liability, here are four exceptions – 

• Plaintiff’s fault or negligence – For example, the plaintiff’s horse escaped into the defendant’s land and consumed the leaves of a wild tree, leading to its death. The Court will not hold the defendant liable for the damage as it could’ve been avoided if the plaintiff’s horse had not escaped into the defendant’s land. Hence, due to the burden of fault on the plaintiff’s part, the rule of strict liability will not be applicable.
• Natural events – Any damage due to unpredictable and uncontrollable natural disasters that no one can prevent. It includes heavy rainfall that can cause flooding, damage to physical property, etc. 
• Mutual Consent – Both parties consented to bring the dangerous substance for mutual benefit. Hence, if it causes damage, either party cannot claim damages from the other. 
• Stranger – If a stranger caused the damages over whom the defendant had no control, then the rule of strict liability will not apply, and the defendant will not be liable for the damages.

The major difference

To overview, in strict liability, an individual can be liable for damages. However, in an absolute liability, an organisation (commercial objective) can be liable for the damages. Moreover, in strict liability, the “escape” of the dangerous substance is necessary to hold a person liable for damages. However, in absolute liability, an organisation can be responsible even without the escape of the dangerous substance.

Lastly, there are certain exceptions available to an individual in a strict liability offence, where the offender can use the opportunity to defend themselves. However, in absolute liability, no such opportunities are available, leaving the offender with no defences in Court. Hence, the lack of flexibility in absolute liability charges makes the case even more complicated for the offender – or in this case, an organisation. Unlike absolute liability charges, a strict liability offence allows the offender to defend themselves in court with adequate evidence.

Build your defence with United Legal

While you can’t get a lot out of absolute liability offences due to the limitations of defence, it is still possible to work around a strict liability defence. If you can successfully establish that you were under a mistaken yet honest and reasonable belief that led to the offence, you may be able to defend the charge. However, the process isn’t easy and navigating the complexities can be difficult

Moreover, you will need to provide enough evidence to establish that you made an honest and reasonable mistake associated with the facts that created the offence.

You need a strong defence, a coherent strategy and an experienced lawyer. Navigating through the law with limited knowledge can be risky and lead to adverse results due to the factors involved in criminal cases. Hence, to give you the best opportunity to successfully defend yourself against a strict liability charge, we have a team of experienced lawyers dedicated to your legal rights. Our lawyers will create a defence strategy to help us represent you in court and help you win your case. If you require any more information, get in touch with our dedicated team of Canberra’s best lawyers.

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