LAW 2599 Lecture Notes - Lecture 3: Absolute Liability, Statutory Interpretation, Social Stigma
23 May 2018
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PQ PROCESS
Step 1: identify the legislation and its elements
1. Identify physical elements
a. See below: conduct, circumstance, state of affairs, result
2. Identify fault elements
a. See below: subjective of objective
3. Identify inherent statutory defences
4. Identify if a full fault/ strict liability/ absolute liability offence
a. Full fault: PE and FE need to be proven- principle of contemporality needs to be satisfied
b. Strict liability: Need only prove PE. No requirement of FE to accompany PE (eg drive under
disqualification) – but defence of RMOF available
c. Absolute liability: Need only prove PE. No requirement of FE to accompany PE (eg produce child
pornography – R v Clarke) – different to SL as defence of RMOF not available
d. If uncertain if SL or AL- He Kaw Teh analysis (below)
i. If interpretation favours both SL and AL, SL is favoured as defence of RMOF is available to
D, and criminal offences are construed in favour of D when there is ambiguity
Step 2: assess the client’s liability
1. Clarify definitions
2. Voluntariness
3. Apply facts to elements
4. Apply facts to statutory defence
Step 3: Seriousness and penalty of offence
Step 4: Burden of proof of the statutory defence
Step 5: other defences? Burden of proof
1. Different for SL and AL- see blelow
Step 6: alternative charges
Step 7: whether to plead guilty or not guilty (explain grounds), negotiate alternative with police, other action
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find more resources at oneclass.com
DETERMINING IF STATUTORY OFFENCE IF FF, SL OR AL- HE KAW TEH METHOD
1. Use when words of statute are inconclusive as to the requirements of proof of fault NOT REQUIRED WHERE
a. Element is specified or implied in statute- rape
b. Fault element has been established by case law- murder
PROCESS
STEP 1: Element analysis
• Identify the PE
- Must be specified for every offence (look title of provision)
- PE in same offence may have different types of liability attaching to them- so separate them
• Identify any express FEs
- May not be specified for every offence (hence HKT analysis)
- Expressed through the words ‘intention, recklessness, knowledge, belief’
• Identify any implied Fes
- May be implied by nature of PE (‘possession’ – concept contains within it a mental element)
• As the FE has been identified- no further analysis of nature of liability required- will proceed to assess client’s
liability
• As the FE cannot be identified in the statute- will consider the first presumption
STEP 2: First presumption
• It is firstly presumed that the offence is one of full fault as this is most favourable to the defendant
• However, this presumption may be displaced by parliament
• Factors that displace or uphold presumption
- Truly criminal (consider penalty and social stigma)- upholds presumption
- Grave social evil – rebuts
- Subject matter- public health rebuts
- Would proof of knowledge would affect enforcement? - If yes- rebuts presumption
- ***Would SL or AL be unjust because D could not safeguard self from liability? (consider importation of
drugs)- if yes- upholds presumption because D be able to argue ‘not guilty- no requisite state of mind’ OR
have to take precautions to prevent committing the crime He Kaw Teh
• As the presumption has been upheld, the offence is one of full fault - no further analysis of nature of liability
required- will proceed to assess client’s liability
• As the presumption has been rebutted- the offence is not full fault- will consider the second presumption
STEP 3: Second presumption
• Secondly, it is presumed that liability is strict not absolute as this is the second most favourable to defendants
• Consider factors that displace or uphold the presumption
- Purpose of statute
- Subject matter of statute
- Wording in similar legislation
- Safeguarding public health- if yes- tends to rebut presumption
- Would AL create ‘luckless victims’ – punish accidental behavious Lim Chin Aik v The Queen
• As the presumption has been upheld: strict liability offence – no further steps
• As the presumption has been rebutted: the offence is absolute liability – will proceed to assess client’s laibility
find more resources at oneclass.com
find more resources at oneclass.com
