Strict liability and honest and reasonable mistake of fact defence

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Evelyn McGee
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1 Strict liability and honest and reasonable mistake of fact defence Case Proudman v Dayman SRA v Hunter District Water Board Proudman v Dayman CTM Note Dixon J held that liability is strict in relation to one of the elements of AR(the driver is unlicensed) while the act of permitting others to drive required the establishment of subjective MR. As a general rule an honest and reasonable mistake in the state of facts which, if they existed, would make the defendant s act innocent, affords an excuse for doing what would otherwise be an offence. (genesis of this defence) A) Must be a positive belief rather than mere ignorance or inadvertence, the belief must relate to elements of the crime B) belief, if fact are true, will render the accused innocent C) Belief must be reasonable Australian Iron & Steel Pty Ltd v Environment Protection Authority (No2) Due diligence is never available as an extension of the reasonable mistake of fact excuse. In other words, with offences of strict liability, if someone brings about actus reus of an offence, they can be acquitted if they acted under reasonable mistake of fact, but not if they were aware of the actual facts but took every precaution that could have been expected of them. Ostrowski HKT Must be a mistake as to fact not of law Accused has evidential burden of proof and prosecution has legal burden to disprove the mistake Murder and Manslaughter Crimes Act 1900 (NSW) 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. 1

2 - All forms of homicide have the same actus reus (an act or omission causing death of a person); it is the MR which is different the more culpable states of mind are reserved for murder (the one exception being constructive murder, which does not require mens rea, but requires that someone dies during the commission of a crime punishable for life for 25 years). o s 18 of the Act defines murder, but does not specifically define manslaughter, leaving manslaughter to be defined by common law. o Manslaughter can be split into voluntary manslaughter (where the person satisfies the actus reus and mens rea for murder but certain defences (provocation, excessive self-defence, diminished responsibility, infanticide) allow it to be knocked down and involuntary manslaughter (unlawful and dangerous act manslaughter; criminal negligence manslaughter and possibly reckless manslaughter). Actus reus (same for all) - Act or omission - Causing - Death - Of a person capable of being killed Act or omission o Volition: an act must be willed/voluntary (notion of volition is covered in more detail previously). There is presumption of capacity and volition i.e. that accused s act was conscious and willed (Bratty v Attorney-General for Northern Ireland [1963] AC 386; Falconer (1990) 171 CLR 30) This presumption can be displaced by evidence. Defence bears evidentiary burden of raising the issue of capacity and volition. See also Ryan (1967) 121 CLR 205 The conduct element: act or omission causing death R v SW and BW In case law, the test for sufficiency of omission as AR is: The defendant must have owed the deceased a duty of care: Taktak A duty of care is owed in one of the following scenarios Jones v USA 1. Where statute imposes a duty of care. 2. Where one stands in a certain status relationship to another.(r v SW and BW) 3. Where one has assumed a contractual duty to care for another. 4. where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. Conduct element: identifying the precise act or omission that did cause death Arutlthilakan v R It is generally not necessary for the jury to determine which of the accused s acts 2

3 caused the relevant result, as long as they are satisfied that that result was caused by one of the accused s acts. However, in some cases it will be necessary. For example, if there are multiple possible causal acts, and the accused s mental state may have differed when s/he committed those acts(or issue of voluntariness), the jury will need to determine which of those acts caused the result so that they can ascertain whether the accused held the appropriate mental state when s/he committed that particular act Death - When is a person dead? Human Tissue Act 1983 (NSW) Part 7 Definition of death 33 When death occurs For the purposes of the law of New South Wales, a person has died when there has occurred: (a) irreversible cessation of all function of the person s brain, or (b) irreversible cessation of circulation of blood in the person s body. Person capable of being killed - Death must be of an alive person - When can a baby be a person capable of being killed? Crimes Act 1900 (NSW) 20 Child murder when child deemed born alive On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not. - Homicide, therefore, does not cover the death of an embryo or foetus in the womb. - Iby [2005] NSWCCA 178 This case held that the baby does not need the capacity to breath unaided. Just need any sign of life even if it is destined to die because it is born prematurely. - Martin (1995) 85 a Crim R 587: Pregnant woman stabbed, lost lots of bloods. Baby was born alive but dies a couple of months later as a result of the blood loss while the baby was in the womb. Defence argued that when D acted, the baby was not a person capable of being killed. However, murder = a results crime, so the baby only needs to be a person capable of being killed at the time of the result. Therefore, if baby is born alive but later dies from injuries sustained in womb, this may be unlawful homicide. - While death orf an embryo or foetus is not homicide, the definition of GBH (s4 of Crimes Act 1900) has been extended to include the destruction of the foetus of a 3

4 pregnant woman, whether or not the woman suffers harm. Causation - There are always two steps that need to be established: o Factual cause / causal connection o Legal cause / causal responsibility - While the principles relating to legal causation are complex and varied, the factual causation rule is the one basic ground rule the but for test. Cannot say a factor is a cause of a consequence unless that consequence would not have happened but for the presence of that factor (see, for e.g. Moffat). o However, this is only the first step and is not enough on its own. One consequence may have scores of but-for causes. A court must then determine legal causation court makes judgment about which but-for cause is also a legal cause. A) The alleged intervening conduct is the act of a third party R v Smith Evans and Gardiner Cheshire Paggett If at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound(one of the most favoured tests) Approved Smith rule Should not regard negligent treatment as excluding accused s liability unless the treatment is so independent of his acts, and in itself so potent in causing death, that contribution made by his act is insignificant Accused shot at armed police, used the deceased as a shield. Court held that the actions of the police were not free and voluntary, because the police were returning fire in act of reasonable self-defence performed for self-preservation, and hecne returning fire was an involuntary act caused by the act of the accused. B) Is an act of nature Hallett In exposure cases the ordinary operation of natural causes does not break chain of causation If victim is placed somewhere safe from ordinary causes but died from extraordinary causes, then extraordinary cases such as earthquake breaks chain of causation Whether the act must be regarded as having a sufficiently substantial causal effect on happening of the event C) Is an act of the deceased 1. Refusing medical treatment/advice 4

5 Blaue Bingapore Must take the victim as they found him and ask whether the wound inflicted is the cause of death. Victim of attack by accused leaves hospital against the advice of doctors, returns six hours later but later dies of a condition that could have been treated if stayed earlier in hospital. Despite this, chain of causation not broken, accused still causally responsible for the death. 2. Fright or self-preservation cases 5

6 Case Note Royall - Victim jumped out of window in a situation that looks like she was being threatened by the accused (it looks like he forced way into bathroom and was violent). She died from the fall. Generally causation is to be decided by jury using common sense, but the situation here is more complex, he favored natural consequence test (Mason) Majority of the judges more or less agreed on the principle that where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence that the victim would seek to escape(as long as there is a well-founded apprehension of danger, mode of escape need not be rational but at least has some sense of proportionality, raised in RIK) and the victim is injured in the course of escaping, injury is caused by accused s conduct Brennan J: Favours the reasonable foreseeability test. [W]here the victim s attempt at self-preservation is not reasonable (or proportionate), the chain of causation is broken and the victim s death is not treated as having been caused by the accused s conduct It was held by Mason held that juries should not be directed in terms of reasonable foreseeability for causation because this may produce confusion for juries between causation as an objective test which is part of the physical/external element of the offence, and the notion of foreseeability/foresight as a subjective state of the accused s mind (which is not part of causation). McAuliffe v R - Ds attacked and bashed a person near the edge of a cliff leaving him seriously wounded and dazed, with the result that he fell over the cliff to his death. Drawing on the reasonable foreseeability test in Royall RIK v R - Deceased threatened by accused on railway platform; deceased jumps onto tracks (ostensibly to avoid the threat) and makes way to another platform, but hit by an approaching train and dies. Accused convicted on manslaughter. Raises the question whether the response was reasonable or proportionate to the threat Whether the victim s reaction to danger is reasonable is to be determined by jury.the reasonableness and proportionality of his response would then be assessed in terms of the response of a person, in fear for his safety, making a quick decision as to what to do Will medical treatment break the chain of causation? Generally medical treatment will not break the chain of causation even if it has been poorly administered, unless it has not been reasonably proper or in good faith. Treatment must fall so far below the expected standard must be palpably wrong. 6

7 Apply operating and substantial cause rule. zprovocation - Provocation is a partial defence to murder reduces murder to voluntary manslaughter. o Jury must therefore be satisfied as to the elements for murder before provocation becomes an issue. History and context of provocation - Smith [200] UKHL 49 per Lord Hoffman: The doctrine of provocation has always been described as a concession to human frailty o Emerges from a time when men bore arms and an insult to honour might have led to a killing done suddenly in the heat of passion E.g. the killing of a Man in the act of adultery with one s wife o As law developed, it became essential that the response was reasonable, such that the law condescends to human frailty, not ferocity. o Another shift was that the emphasis of whether the accused had lost self-control. In other words, a shift from the defence being a justification to an excuse. - Provocation is seen as privileging hot-blooded male responses. Gleeson J alludes to this is Chhay (1992) 72 A Crim R: The law developed in days when men frequently wore arms, and fought duels, and when, at least between men, resort to sudden and serious violence in the heat of the moment was common. To extend the metaphor, the law s concession seemed to be to the frailty of those whose blood was apt to boil, rather than those whose blood simmered, perhaps over a long period, and in circumstances at least as worthy of compassion. - Notion of a balancing act. Holmes [1946] 2 All ER 124: [A]s society advances it ought to call for a higher measure of self-control in all cases [T]he law has to reconcile respect for the sanctity of human life with recognition of the effect of provocation on human frailty. - Criticisms: Loss of self control should not form basis of a defence; provocation promotes culture of blaming the victim, gender bias, too complex and confusing. Elements of the defence CA Trial for murder-partial defence of extreme provocation (1) If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have 7

8 found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter. (2) An act is done in response to extreme provocation if and only if: (a) the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and (b) the conduct of the deceased was a serious indictable offence, and (c) the conduct of the deceased caused the accused to lose self-control, and (d) the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased. (3) Conduct of the deceased does not constitute extreme provocation if: (a) the conduct was only a non-violent sexual advance to the accused, or (b) the accused incited the conduct in order to provide an excuse to use violence against the deceased. (4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death. (5) For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of self-induced intoxication of the accused(within the meaning of Part 11A) cannot be taken into account. (6) For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was done with intent to kill or inflict grievous bodily harm. (7) If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation. (8) This section does not exclude or limit any defence to a charge of murder. (9) The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not apply to the trial of a person for murder that was allegedly committed before the commencement of that Act. (10) In this section: "act" includes an omission to act. "Serious indictable offence" means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more. Provocative conduct/circumstances - Must the provocation be within the sight or hearing of the accused? o s23(2)(a) says the provocation may be any conduct of the deceased.. towards or affecting the accused. There is no express requirement the conduct be within sight or hearing of the accused. o However, common law suggests provocation must be within sight and hearing of the accused hearsay provocation (being told about something provocative) is not sufficient. Hearsay provocation Quartly It was ruled that conduct of a person described by others can not constitute conduct 8

9 R v R A shift in law giving rise to provocation. It could not because it s not conduct of the deceased within the meaning of the section but merely statements made by persons other than the deceased. Words or conduct cannot amount to provocation unless they are spoken or done to or in the presence of the killer. However, such words or conduct may be important as part of the background against which what is said or done by the deceased to the killer is to be assessed. But in more modern cases there has been doubt as to whether it must be within sight or hearing. Davis Affirmed Quartly. Simpson J suggested it may not need to be within sight and hearing: Those words simply do not appear in the section [of the statute] What the section is directed to is conduct of the deceased. Conduct is a fact, whether it takes place in the presence of the accused or not If the belief that the conduct has taken place is well founded, the truth is the killing was provoked by the deceased s conduct. However, Simpson J pointed out that some common law principles are changed or reversed through statute but no change was made to hearsay provocation principle and he was thus convinced that legislature did not intend to change common law in this respect. Therefore the rule still stands though there is no express statement from statute that it should be so. Words or conduct cannot amount to provocation unless they are spoken or done to or in the presence of the killer. The history of the deceased may be taken int account when considering whether seemingly innocuous words/conduct on part of the deceased amounted to provocation. Though the killer became aware of the history through other people The subjective test: the loss of self-control - McGregor [1962] NZLR 1069: Sudden and temporary loss of self-control. o This loss of self-control must be caused by the provocation and not some other factor: Censori v R [1983] WAR 89. o Loss of self-control cannot be to such a degree that there would instead be a situation of sane automatism. 9

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