A common law presumption

14.1       There is a common law presumption that ‘mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence’.[1] The general requirement of mens rea is said to be ‘one of the most fundamental protections in criminal law’,[2] and it reflects the idea that

it is generally neither fair, nor useful, to subject people to criminal punishment for unintended actions or unforeseen consequences unless these resulted from an unjustified risk (ie recklessness).[3]

14.2       Professors Andrew Ashworth and Jeremy Horder write:

The essence of the principle of mens rea is that criminal liability should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences it may have, that they can fairly be said to have chosen the behaviour and consequences.[4]

14.3       In He Kaw Teh v R,Brennan J explained the operation of mens rea as an element in criminal offences:

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.[5]

14.4       Historically, criminal liability at common law necessarily involved proof of mens rea.[6] In Williamson v Norris, Lord Russell CJ said:

The general rule of the English law is that no crime can be committed unless there is mens rea.[7]

14.5       In his Commentaries on the Laws of England (1765), William Blackstone wrote that, to ‘constitute a crime against human laws, there must be first a vitious will, and secondly, an unlawful act consequent upon such vitious will’.[8]

14.6       Some criminal offences, however, do not require proof of fault—these are described as strict and absolute liability offences. Criminal offences are generally characterised in one of three ways:

  • mens rea offences—the prosecution must prove a physical element (actus reus) and a mental element (mens rea);

  • strict liability offences—the prosecution is not required to prove fault, but there is a defence of reasonable mistake available;[9] and

  • absolute liability offences—proof of fault is not required and the defence of reasonable mistake is not available.[10] 

14.7       In the mid to late 19th century, strict and absolute liability offences were increasingly developed, particularly so-called ‘regulatory offences’.[11] Regulatory offences were designed to protect individuals from the risks that came with greater industrialisation and mass consumerism. This trend has continued, with a recognition that the imposition of strict liability ‘may be appropriate where it is necessary to ensure the integrity of a regulatory regime such as, for instance, those relating to public health, the environment or financial or corporate regulation’.[12] Similarly, there is a recognition that while absolute liability offences should be rare, it may be appropriate for jurisdictional or similar elements, or ‘where an element is essentially a precondition of an offence, and the state of mind of the offender is not relevant’.[13]

14.8       In Australia, the common law presumption of fault-based liability is reflected in statute. Chapter 2 of sch 1 of the Criminal Code Act 1995 (Cth) (Criminal Code)codifies the general principles of criminal responsibility which apply to all Commonwealth offences. Section 5.6 of the Criminal Code states that where an offence does not specify a fault element, the prosecution must prove fault: intention in relation to conduct, recklessness in relation to a circumstance or result. As a result, unless a Commonwealth statute states that an offence is one of strict or absolute liability, a fault element is read into the offence.

14.9       The Terms of Reference for this Inquiry ask the ALRC to consider laws that apply strict or absolute liability to all physical elements of a criminal offence. However, the ALRC considers that it is useful to consider laws that apply strict or absolute liability to any physical elements of a criminal offence.

14.10   Where a provision is silent on the question of fault, s 5.6 of the Criminal Code operates to impose a requirement for the prosecution to prove fault for all elements of the offence, including technical and jurisdictional elements. The effect of this is that, unless expressly stated in the provision, strict or absolute liability does not apply to physical elements of an offence. Most commonly, such express statements are made in relation to jurisdictional elements. However, problems arise when strict or absolute liability applies to physical elements that would normally require fault to render them culpable.[14]

14.11   Professor Jeremy Gans, in his submission to this ALRC Inquiry noted:

Some physical elements of a criminal offence almost never lack subjective intent in practice (eg most conduct) and many others in Commonwealth legislation are technical/jurisdictional elements with no relevance to responsibility. The relevant question is whether or not absolute/strict liability applies to any element of a Commonwealth offence that may plausibly be committed without subjective intent or knowledge and that is relevant to criminal responsibility.[15]

14.12   As a result, this chapter relates to offences where strict or absolute liability is imposed on any element of the offence. It discusses the source and rationale of the common law presumption; how it is protected from statutory encroachment; and when Commonwealth laws that impose strict or absolute liability may be justified.