CRIME, LAW AND MORALITY

Transcription

1 LAWS5004 Criminal Law Class 1 CRIME, LAW AND MORALITY (i) Sources of criminal law NSW a CL state; no Criminal Code But most of state s criminal law in the NSW Crimes Act 1900 (e.g. murder, sexual assault) Where Crimes Act is ambiguous, CL may resolve ambiguity (e.g. meaning of act or commission causing death in s 18(1)(a) CA) Some offences (e.g. larceny) and defences (e.g. duress, necessity, mental illness) not provided in legislation, but in the CL (ii) How are the limits of criminal liability determined? Findlay, Odgers and Yeo: - Individual autonomy principle Premised on liberal idea that people should be able to conduct themselves as most they can with minimal prescription For crime to have occurred, person must have freely chosen to cause harm to another/others Alan Norrie: in spirit, [the criminal law] is an enactment of liberal philosophy Individual autonomy principle reflected in criminal law s insistence that only persons who have voluntarily performed the actus reus (AR) of an offence may be held criminally liable Also reflected in: (a) General principle that criminal liability not est. simply by providing BRD that the accused performed an offence s AR (b) The rebuttable presumption that a subjective mens rea (MR) must be proved for statutory offences that are silent as to MR (He Kaw Teh) Intent to cause a consequence or at least awareness that the consequence may eventuate (c) The temporal coincidence rule 1

2 Must be proved that at the time the accused performed the AR, they possessed the relevant MR (see Myers) Relates to notions of individual choice Individual autonomy principle underlies many of the defences that are provided for either by statute or by CL e.g. self-defence, duress, necessity, mental illness - Community welfare principle Whereas IA principle places a priority on the accused s rights (i.e. freedom of choice), CW instead places priority on community protection concerns Objective mental elements (applying to offences such as sexual assault, manslaughter) are more consistent with this principle Objective MR: whether accused has fallen below standard of behaviour that would have been exercised by the reasonable person in the same circumstances CW principle underlies law s insistence that some of those who may have committed criminal offences involuntarily may nevertheless be institutionalised indefinitely (see Bratty) Distinction b/w sane automatism (can be acquitted) and insane automatism (must plead defence of mental illness and are institutionalised indefinitely) Insane automatism = conduct stemmed from a disease of the mind (wide meaning and scope of operation includes epilepsy, dissociative states) Community protection concerns seem partly to explain judge s failure always strictly to apply the temporal coincidence rule (see Thabo Meli) Act and intent must not always coincide when judges are confronted with a case in which a strict application of that rule would create what they consider a very undesirable outcome, they can stretch the rule The current content of the self-induced intoxication defence also heavily influenced by CW principle (see Pt 11A CA) Majewski (UK): Crimes of specific intent (e.g. murder) = Crown must prove that accused intended a specific result (i.e. death) For these crimes, self-induced intoxication is a defence Crimes of basic intent (e.g. sexual assault, involuntary manslaughter) = Crown need not prove that accused intended any specific result, but rather bring about circumstances (e.g. have sexual intercourse without consent) Self-induced intoxication no defence 2

3 Class 2 SCOPE AND PRINCIPLES OF CRIMINAL LAW He Kaw Teh Subjective mens rea - Rebuttable presumption that subjective mens rea is required The less serious the offence, the more easily this presumption is rebutted - Related to principle of legality if you are going to convict someone of an offence, presumably you have to prove that they intended to engage in the relevant wrongdoing (see CTM) - Also related to liberal/individual autonomy concerns that only those who have chosen to cause the relevant harm should be held responsible/punished Objective mens rea - Common justification for not requiring proof of a subjective fault element of an offence is difficulty of proving actual knowledge/intent - Existence of objective fault element strikes a balance between individual autonomy and community welfare concerns Absolute liability - No mens rea requirements - Reflective of community welfare concerns Justins v R Causation - Questionable whether the wife s act of passing Wyle the cup containing Nembutal caused death because of an intervening act of Wylie taking the cup and drinking its contents - Was Wylie s act the product of a genuine voluntary choice? Evidence of Dignitas refusal to assist Wylie s suicide due to dissatisfaction that he had the capacity to decide to commit suicide - Should her motive being to ease Wylie s pain prevent her from being held criminally liable? Criminal law does not consider motive with regards to culpability but does in regards to sentencing Social order is maintained by insisting on INTENTION rather than motive - This case indicative of the criminal law s concern to hold people responsible for acts only when they have genuinely chosen to perform those acts Brown v R Remote harms argument this behaviour could get out of control and someone could die 3

4 - Limited applicability when criminalising behaviour Ashworth and Horder: minimalist approach to criminalization To criminalise a certain kind of conduct is to declare that it is a public wrong that should not be done, to institute a threat of punishment in order to supply a pragmatic reason for not doing it, and to censure those who nevertheless do it This use of state power calls for justification The principle of individual autonomy Each individual should be treated as responsible for his/her own behaviour Individuals should be protected from official censure, through the criminal law, unless they can be shown to have chosen the conduct for which they are being held liable - Problem: the capacities assumed by the law may not be present in those who are too young/are mentally disordered The principle of welfare Focuses on the fact that there are inequalities in society that can impact upon the genuineness of a particular person s choice - Different to community welfare approach in which protection of community the dominant consideration taken into account when determining criminal liability and the attribution of criminal responsibility Sometimes people are constrained by their circumstances, have not made a genuine choice, and should not be held to be criminally responsible The law should respond to those issues of differential power and privilege Some criminalisation accepted as the only justifiable means of upholding certain social practices as necessary for the general good - Problem: decisions by the wider community may threaten basic interests of individuals, unless there is a recognition of a set of protected rights NB: the criminal law has been influenced by both liberalism and community protection concerns, producing chaotic results - e.g. Pt 11A CA - self-induced intoxication Three conditions for criminalisation Harmfulness: the state is justified in criminalising any conduct that causes harm to others or creates an unacceptable risk of harm to others: John Stuart Mill - Problem: can a satisfactory line be drawn through such things as physical harm, harm to property, harm to feelings, and indirect harm? Wrongfulness: in the sense of culpably assailing a person s interests, or abusing them by using them as a means to another s satisfaction 4

5 - Problem: there may be morally wrong conduct (e.g. forms of lying or sexual infidelity) which, for other reasons, should not be criminalised Publicness: general obligations of citizens that are so important that the criminal sanction may be justified to reinforce them; the victim is not an individual but the community as a whole - Problem: how can we tell which wrongs done to individuals are sufficiently public to warrant the condemnation of the criminal law? Adultery is wrongful but does not have a public element to it However, even if all 3 of these elements are satisfied, the argument for criminalisation has not been made out The minimalist approach Onus on the state to justify criminalisation Four main components: a) The principle of respect for human rights i.e. criminal laws should respect human rights protections b) The right not to be subjected to State punishment The element of public censure and the overriding of other rights means that strong justifications for criminalisation conduct are called for, and the burden of proof should lie on those who would impose criminal liability Much stronger justification should be required where the offence is to be punishable with imprisonment c) The principle that the criminal law should not be invoked unless other techniques are inappropriate (criminalisation as a last resort) Criminalisation should be reserved for the most serious invasions of interests Alternatives are civil liability and administrative regulation d) The principle that conduct should not be criminalised if the effects of doing so would be counterproductive If the criminalisation of certain conduct, such as the possession of soft drugs or various vice offences, gives rise to social consequences that can be worse than the mischief at which the law aims to deter Morally wrong behaviour Devlin: society is entitled to use the criminal law against behaviour which may threaten its existence there is a common morality which ensures the cohesion of society; any deviation from this common morality is capable of affecting society injuriously; therefore it may be justifiable and necessary to penalise immoral behaviour - Problem: immorality is defined and measured according to the feelings of ordinary people, which may be the expression of prejudice rather than moral judgment 5

6 - Also is there such thing as a common morality? Moral views on sexual matters are particularly varied. Brown v R Lord Templeman (the majority): - Sado-masochistic sexual behaviour should be unlawful because it is dangerous to society generally - Cruelty is uncivilised and society is entitled and bound to protect itself against the cult of violence Other arguments by the majority based on risk : 1. Necessary to criminalise the appellants behaviour because of the risk that if it were to continue, other people may draw inspiration from this behaviour and abuse children 2. These appellants could end up killing someone due to the unpredictably dangerous and increasing barbarity of the behaviour Lord Mustill (the minority): - Sadism is not praiseworthy, however moral objection and repugnance are not enough to justify criminalising this behaviour - the State should interfere with the rights of an individual to live as he or she may choose no more than is necessary to achieve a proper balance between the special interests of the individual and the general interests of the populace at large - It is not for the Parliament to decide the greatness of the risk that this behaviour will lead to the occurrence of further harm Ashworth and Horder s approach: the state only intervenes when a person s behaviour prevents other people from exercising similar freedom - Limited role of paternalism: Sometimes children need to be protected even though they seem to have made a voluntary decision to do something In favour of an age of consent for sexual activity *Remote harms Some conduct that is not wrongful or harmful in itself (e.g. dangerous driving) is criminalised because of the consequences that may flow from it (e.g. death, serious injury) - Problem: intervening acts that break the chain of causation the person who does that voluntary act is the one that should be penalised However the general harm that may result if no criminal laws are in place (particular w/ regards to gun possession/ownership) tells in favour of criminalisation 6

7 Ashworth and Horder s approach: should only criminalise activity not harmful in itself but might lead to further harmful acts if the damage that is going to arise is grave and the significance of the risk that it will materialise - There is some, though limited role, for the criminalisation of remote harms NB: the main determinants of criminalisation continue to be political opportunism and power, as opposed to concepts such as harm, wrongdoing and offensiveness Summary Must have harmfulness, wrongfulness and publicness in order to criminalise behaviour, then apply the minimalist approach Ashworth and Horder s overall approach: - Common morality cannot influence the content of the criminal law as it is based more on prejudice - Paternalism has a minor role to play, as does the state s ability to criminalise remote harms Is this approach too liberal? - Not enough emphasis on community concerns and welfare? - Possibly exaggerates the extent to which individuals make voluntary, genuine choices Rush and Yeo: jurisdiction The question of jurisdiction addresses the power (authority, legitimacy or justification) of law for decisions made in the name of law Interpretation of the general principles of criminal responsibility provides one dominant way of constructing the meaning or value of current criminal law The power and authority of criminal law is presumed to derive from the law itself; can also be argued that criminal law recognises the social values of the Australian community 7

8 Class 3 THE ELEMENTS OF CRIMINAL OFFENCES I (i) Generally In theory, the burden of proof should be completely on the prosecution: a D is innocent until proven guilty by the Crown - In pre-enlightenment England, no attention was paid to the rights of the accused - Sir Michael Foster, 1762: In every murder case, in every charge of murder, the fact of killing being first proved [i.e. once the actus reus has been established], all the circumstances of accident, necessity or infirmity must be proved by the prisoner because the law presumes the fact to have been founded in malice Woolmington v DPP (1935): English courts departed from the position that the accused had to prove that he/she did not have the necessary mens rea establishing the golden thread principle However, in several cases, the D will have the onus of rebutting a presumption of guilt (e.g. drug possession). (ii) Woolmington and evidential burdens Woolmington v DPP (1935) Facts: - The D was accused for murdering his wife and appeared to be guilty on the facts. The trial judge instructed the jury that they should find him guilty unless he can convince them he is innocent. Held: - The judge giving such a direction means that the judge has decided the outcome of the case, which is not the common law. - Viscount Sankey: identified the golden thread of criminal law - the prosecution has to prove in a positive way each element of an offence/the accused s guilt beyond reasonable doubt Subject to the defence of insanity [mental illness] and any statutory exception Beyond Reasonable Doubt 8

9 It has been repeatedly stressed by appellate courts that a judge cannot attempt to explain to the jury what beyond a reasonable doubt is - it means exactly that. A trial where a judge attempted to further explain to the jury what beyond reasonable doubt means will be a miscarriage of justice (see Green [1971]) Essentially, all judges can say is that BRD does not require you to be absolutely certain, and the standard is stricter than the civil standard (the BoP) The golden thread in practice If a statute states specifically that the burden of proof is reversed, then effect will be given to that statutory command With regards to the defence of insanity/mental illness, it is the responsibility of the accused to prove it on the balance of probabilities - i.e. that they did not know the nature or quality of the act they were doing, or alternatively, that their ability to tell the difference b/w right and wrong had been destroyed see M Naghten, Porter On its face, the golden thread appears to be highly protective of accused persons rights, but the major exceptions had been subject to criticism - Ashworth: The Woolmington decision left it open to parliament to override the principle wherever it wanted to It did not explain why the accused person should have to prove the insanity defence It said nothing about why the presumption of innocence is so important The golden thread has been abrogated by various legislation: - Absolute and strict liability offences are clear violations of the golden thread. - Drugs legislation is a controversial example of a statutory reversal of the burden of proof - if the accused has possession of more than a specified amount of a given drug, then the accused is presumed to intend to supply the drug, unless this presumption is rebutted The golden thread is also under assault from the courts themselves - In a growing number of instances, they are imposing an evidential burden of proof on the accused Additionally, in sexual assault trials, where the victim and the accused frequently give conflicting versions of the event (one of sexual intercourse without consent, and the other of consent and cooperation), the effect of the golden thread is that the jury must be instructed that, if in doubt as to which version is true, they must give the defendant the benefit of doubt and acquit Degrees of burdens of proof The persuasive burden: - General burden of proof 9

10 - The burden of proof of persuading the jury to believe the allegation beyond all reasonable doubt. - It is the usual burden of proof required by the prosecution as per the golden thread principle. Evidentiary burden: - Before a judge in a criminal trial will leave an issue with the jury (e.g. self-defence), the accused must persuade the judge that there is enough evidence to support that issue - Whether an evidentiary burden of proof has been satisfied is determined by the judge What is enough evidence? Such evidence as, taken at its highest, persuades the judge that it is open to the jury to have a reasonable doubt as to whether, for example, the accused WAS acting in self-defence at the time of the guilty act - After such a determination, the burden of proof shifts to the prosecution - they have a persuasive burden of proof to refute the contention The P must prove, BRD, the actus reus and mens rea of the offence, as well as the fact that the accused was NOT acting in self-defence - Note: evidential burden is not a full burden of proof like the persuasive one is - it is merely a burden to produce some evidence which might dispute a presumption the court is under. - The defendant usually has such an evidentiary burden for things like an honest and reasonable mistake of fact - merely to bring some evidence which suggests there might have been HRMF. (iii) He Kaw Teh and the presumption that a subjective mental element standard applies for legislative offences He Kaw Teh (1985) Principle: - Gibbs CJ, Mason J agreeing: when definitions of offences are silent in regards to mens rea, there is still a (rebuttable) presumption that the legislature intended for (subjective) mens rea to be required for the accused to have committed the offence, which the prosecution must prove - Different MR requirements for different AR elements; For the act/omission, there is a strong presumption in favour of subjective fault usually that of intent The standard for the circumstances is usually that of knowledge, also described as an absence of a reasonable and honest mistake of fact (the prosecution must prove, BRD, that there was no HRMF) 10

11 The standard for the consequences is usually that of recklessness (i.e. knowledge as to the possibility or even probability of the consequences) Facts: - D came into the airport with a bag in which 2.7kg of heroin was hidden in the false bottom. Charged with possessing (s 233(b)(1)(c) Customs Act 1901 (Cth)) and importing (s 233(b)(1)(b)) heroin. Claimed that he did not know about and did not intend to bring the heroin. - Trial judge told jury that the accused would only be able to avoid being convicted of the importation offence if he proved, on the BoP, that he honestly and reasonably believed that there was no heroin in the suitcase Reversed the onus of proof and made the mens rea standard objective Legal issue: - Question of what happens when the legislation is silent in regards to mens rea Results/reasoning: - Words of the statute should ordinarily assist in determining the relevant mens rea - When legislation is silent as to mens rea, there is still a presumption that mens rea is required (i.e. some degree of awareness of what is going on will still be required). - The standard of mens rea (i.e. intent, knowledge/recklessness, negligence) thus needs to be determined Gibbs CJ, Mason J agreeing: - Mens rea standards: Subjective mens rea standard = must prove actual knowledge/intent Rebuttable presumption in favour of subjective mens rea The more serious the offence, and the graver the consequences of conviction, the less likely that the presumption will be rebutted Strict liability standard = must prove lack of HRMF Applies if it will assist in the enforcement of the legislation (i.e. having a deterrent effect; because of the difficulty of proving a subjective mens rea standard), and whether the words of the statute are indicative of parliament s intention to have an objective MR standard Absolute liability standard = no MR whatsoever - In this case, the offences were importation and possession of narcotics. This means: The relevant elements of the actus reus are the act (carrying, bringing in) and the circumstances (the item being a narcotic). There is no consequence. Since there is a circumstances component, the prosecution had to prove that the D, at time when he had physical custody of narcotic goods, he had actual knowledge of the existence and nature, or likely existence and nature, of narcotic goods in his bag. 11

12 Not too hard to prove actual knowledge in a case such as this because juries can be trusted to disbelieve accused persons implausible claims that they did not know the heroin was there; and a strict liability standard would not have much of a deterrent effect because you can only deter chosen conduct; plus the statute was silent as to mens rea and was not indicative of parliament s intention to apply an objective standard; thus subjective standard should apply Brennan J: - There are three types of AR elements (act/omission, circumstance, result) - Different mens rea/mental state standards apply to the different elements of the actus reus/proscribed conduct For the act/omission, there is a strong presumption in favour of subjective fault If this presumption is rebutted, the MR standard becomes that of absolute liability NB: not an authoritative viewpoint because circumstance element is generally what makes conduct criminal; yet Brennan J appears to be suggesting that the strong presumption in favour of act/omission element of AR gives conduct its criminality - Whatever the nature of the presumption, the factors that Gibbs CJ identified are those to be taken account of when determining if a presumption has been rebutted Class 4 THE ELEMENTS OF CRIMINAL OFFENCES II (i) Generally Significance of Hew Kaw Teh - Delineation of three types of AR elements and associated MR: 1. Act/omission E.g. sexual intercourse part of sexual assault offence 2. Circumstance Gives the conduct its criminal element E.g. absence of consent in sexual assault offence When legislation is silent: rebuttable presumption in favour of subjective fault 3. Result E.g. death of a person in offence of murder/manslaughter 12

13 - How to ascertain MR standard for a circumstance element of AR when the legislature is silent as to the applicable MR: Apply Gibbs CJ s approach: 1. There is a rebuttable presumption in favour of subjective fault (no distinction to be drawn b/w integral and attendant circumstances unlike Brennan J) 2. Whether it has been displaced depends on the presence of these criteria: (a) Seriousness of the offence and the gravity of consequences for those convicted of it (b) Whether strict liability standard will have a deterrent effect (c) Whether subjective fault is too difficult to prove (d) Statute s actual words He Kaw Teh: the words prohibited substance suggests that the person had to be proved to have known not only that the substance was in their possession, but also that it was prohibited (e) The statute s subject matter and purpose Tends to point in favour of rebuttal of presumption (f) Statutory context He Kaw Teh: subjective fault required for possession in order to bring it into harmony with the importation offence 3. If it has been rebutted, a further presumption arises in favour of strict (as opposed to absolute) liability standard and this presumption is a very STRONG presumption (CTM; Hawthorne; Wampfler) 4. Whether THIS presumption has been rebutted again depends on the presence of the aforementioned criteria laid out by Gibbs CJ - He Kaw Teh also provides a framework for analysing statutory criminal offences created under NSW legislation. Statutory criminal offences were thus divided into three categories: 1. Offences where the prosecution is obligated to prove subjective mens rea. 2. Offences where mens rea is presumed unless there is proof of an honest and reasonable mistake of fact (called strict liability offences). 3. Offences where mens rea plays no part (called absolute liability offences) (ii) Strict liability and the honest and reasonable mistake of fact defence Difference b/w strict and absolute liability: - In offences of strict liability, the accused will have the option of arguing a honest and reasonable mistake of fact (HRMF) The accused has an evidentiary burden to prove HRMF. If the offence is statutory, it might be a more onerous burden of proof. 13

14 - Absolute liability: it is enough just to prove that the circumstance existed Origins of HRMF defence: Proudman v Dayman (1941) Principle: - To rely upon HRMF defence, need to have had a positive belief on reasonable grounds that the particular circumstance exist Facts: - The D was charged with permitting an unlicensed driver to drive their car. Relevant circumstance was that the driver was unlicensed Issue: - Is this a strict or absolute liability element? If absolute liability: P simply has to prove absence of license If strict liability: P has to prove absence of an honest and reasonable but a mistaken belief that the driver was licensed Results/reasoning: - Dixon J: strict liability element - As a general rue an honest and reasonable belief in a state of facts which, if they existed, would make the D s act innocent affords an excuse for doing what would otherwise be an offence Applicability of strict liability presumption from He Kaw Teh No sufficient reason to consider that this presumption had been rebutted (based on Gibbs CJ s criteria) - On the facts of this case + evidence raised in trial, clear that the accused could not rely upon the HRMF defence b/c she did not say that she had a positive belief that the relevant circumstance existed rather evidence demonstrated that she had probably not considered the relevant matter at all Rare that courts will impose absolute liability: Tolson (1889) Principle: - Need the clearest and most indisputable evidence of a legislative intention to apply an absolute liability standard before the courts will find that there is an absolute liability standard Facts: - Prohibited circumstance: already having a living husband when marrying another man Issue: 14

15 - Was circumstance one with a strict or absolute liability standard? Results/reasoning: - D had formed a positive belief that first husband was dead; reasonable for there to be a presumption in favour of strict liability Wampfler Facts: - Accused had been convicted of offence of publishing an indecent article Issue: - Absolute liability MR standard that article was indecent? - Strict liability MR standard that article was indecent? Must prove BRD the absence of an HRMF that the article was decent Held: - Presumption in favour of a strict standard had not been rebutted - There is a discernible trend in modern authorities away from construing statutes as creating absolute liability Hawthorn Facts: - D charged w/ selling (act/omission AR element) adulterated food (circumstance element) Held: - Not enough just to prove that the food in fact was adulterated (absolute liability standard did not apply) - What did apply was a strict liability standard the Crown was required to disprove the HRMF defence because absolute liability would be a manifest injustice People would be convicted even if they believed on honest and reasonable grounds that the food was unadulterated - If the legislature wishes to impose such an unjust consequence, let it say so directly CTM Principle: - Strength of the presumption of strict liability standard may vary according to the subject matter of the legislation SL standard generally a strong presumption - If Parliament does not want those acting under an HRMF acquitted, it must make its intention plain by express language or necessary implication [35] Various issues connected with the HRMF defence: 15

16 He Kaw Teh evidentiary burden Principle(s): - Provided that the evidentiary burden is satisfied, the prosecution will need to negate the possibility of a HRMF beyond all reasonable doubt in order to convict - Evidentiary burden satisfied if the trial judge is persuaded that it is open to the jury to have a reasonable doubt as to whether the accused had made an HRMF SRA v Hunter District Water Board positive belief Principle(s): - In determining whether there was a sufficient mistake, must have had a positive belief that the act was permissible to constitute HRMF. - The mere absence of a reason to believe that the facts were otherwise will not constitute a HRMF. - The failure to consider whether the facts were otherwise will not constitute a HRMF Facts: - SRA prosecuted for polluting waters when an underground pipe failed and oil escaped into a creek. Argued HRMF; said they had no reason to belief that the faulty pipes that had led to the pollution were, in fact, faulty depot manager understood that the relevant systems were working and he had never observed any previous leakage etc. - Trial judge said HRMF not available because SRA claimed ot have no positive belief in the integrity of the pipes. Results/reasoning: - Three different types of belief (Gleeson CJ): 1. Person positively believes in innocent circumstances; has taken steps to satisfy themselves of the existence of the innocent circumstances Will always have HRMF defence available to them 2. Person who has thought about whether the innocent circumstances exist but only in a general way Depends upon the purpose of the statute; but in practice defence is not available as the purpose of the statute is always to criminalise chosen criminal behaviour 3. Person who has not thought about the matter at all Can t rely on HRMF defence (see Proudman v Dayman) Tolson meaning of innocent Principle: - Innocent means innocent of any criminal wrongdoing (as opposed to innocent of charge against the accused) - Affirmed in CTM 16

17 CTM CCA case Facts: - 17-year-old accused charged with having sexual intercourse w/ a child aged Issue: - Whether a strict or absolute mens rea standard applied to the circumstance element Results/reasoning: - An absolute liability standard applied despite strong presumption of strict liability (after subjective mens rea standard presumption has been rebutted) - Considered statutory context and history of provision: The previous position (until 2003): there existed the offence of sexual intercourse with someone under the age of 16 and a statutory defence provided by s 77(2) which meant an accused could be acquitted for having sexual intercourse with someone aged if they could prove on the BoP that the relevant intercourse was not homosexual intercourse, and that they reasonably believed the other person to be 16 or over (statutory exception to Woolmington principle) Then Parliament equalised age of consent for heterosexual and homosexual sex at 16; due to opposition from some parliamentarians, the statutory defence was removed Actual parliamentary intention thus to make this an absolute liability standard (which is why subjective mens rea standard was not raised as a possibility in this case) - Heydon J: inquiry is not what parliament meant to do, it s what the legislation means CTM HCA case Meaning of the statute is different from what parliament intended At least where the relevant statutory provision creates an offence that is truly criminal, the presumption in favour of a strict as opposed to an absolute standard is very strong It will only be displaced if the Parliament spells out in clear terms its intention to do so which they had not done here; therefore a strict standard applies Hodson article on CTM: The case seemed to indirectly challenge the correctness of He Kaw Teh There are no words in the statute providing for subjective fault, so the appellant was right to disclaim any argument that a subjective mens rea standard applied But what He Kaw Teh says is that where a statute is silent as to MR, it will be presumed that a subjective standard DOES apply 17