Page 2831 - Week 09 - Thursday, 27 September 2007
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47. This offence is drafted in the same terms as the other offence, but involves strict liability, as the government proposes for these other offences. However, it is pertinent to note that the strict liability offence already present carries a far less serious penalty, a penalty of a fine of 100 penalty units with no term of imprisonment. This is much more in keeping with the general rule that one should not be imprisoned without a guilty mind.
In relation to strict liability and the defence of reasonable mistake of fact, the government has made much of the fact that the proposed amendment to strict liability would still allow a defendant the defence of a reasonable mistake of fact. This is indeed correct. However, it is important to note that the onus of such a defence is on the defendant, who must prove this defence on the balance of probabilities. This is a far cry from the normal case where the prosecution must prove an intention or recklessness element beyond reasonable doubt.
It is a huge derogation from the presumption of innocence to exempt the prosecution from the onus of proof beyond reasonable doubt and instead ask the defendant to bear the onus, not just of establishing this reasonable doubt, but of proving their case on the basis of the normal civil standard for a plaintiff—the balance of probabilities. This converts the defendant from one who may be presumed innocent until proven guilty to being put in the situation of a plaintiff who must convince the court of his innocence.
In briefings on this issue the government have offered many purported justifications for the change to strict liability. In the first place, this government have argued that the existing absolute liability provisions in the offences were intended to ensure that the prosecutor need not prove that the defendant had knowledge that they were under a safety duty.
They argue that this has been frustrated by the current requirement to prove intention or recklessness as to an alleged breach of an employer’s safety duty. Whether or not this argument has merit, the conclusion that such strict liability should be imposed is a non sequitur. For such serious offences it would make more sense to remove the existing absolute liability provisions than to impose additional draconian elements of strict liability on other elements of these offences.
Another argument that the government have offered in their briefings is the assertion that strict liability is justified by the regulatory character of the offences. I must admit that I am somewhat at a loss to understand what this is supposed to mean. Any law can be called regulatory. All laws regulate what we are allowed to do. And yet, if some more narrow definition is taken, it is hard to see how such serious offences could fall within the ambit of regulatory matters. In my view, the imposition of a term of imprisonment for five years is hardly what one would ordinarily describe as a regulatory offence to which strict liability should apply.
Finally, the government has argued in its briefings that, because work safety is such an important matter with such potential danger, somehow this justifies strict liability attaching to these safety duty offences. However, if I am not mistaken, there is scope for equally serious harm in such offences as murder and rape. Are we to remove the presumption of innocence from these offences on the same grounds? I think we would
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