Understanding strict and absolute liability offences

Many regulatory offences are categorised as ‘strict liability’ or ‘absolute liability’ offences. The category will affect what the prosecution must prove, and the available defences. This post explores what the differences are, and why they matter.

Categories of liability

There are three categories of liability for offences:

1. Ordinary liability: This is the majority of criminal offences, which adhere to the presumption that a criminal offence must have a ‘mens rea‘ (mental state) element. While the nature of the mental state required for proof (e.g. intention, recklessness, negligence) varies from offence to offence, this presumption of law requires proof that the accused acted with a criminal state of mind, as opposed to criminalising conduct done by accident or inadvertence.
2. Strict liability: A strict liability offence is one that does not require proof of a mental state. The prosecution is only required to prove the actus reus (conduct) element. A commonly understood example of a strict liability offence is speeding in a motor vehicle. To prove speeding, the police must prove that the driver of a motor vehicle was driving at a speed faster than the limit for that road (conduct). There is no need to prove that the driver did so intentionally (mental state). The reasons for this may be obvious; it would be exceedingly difficult to prove what was in the driver’s mind for what is an offence of relatively low seriousness. The resourcing impact of investigating the mental state of drivers would be disproportionate. Notwithstanding there being no mental element, there is a mental state defence available for a strict liability offence, being the defence of honest and reasonable mistake of fact.
3. Absolute liability: An absolute liability offence requires no proof of a mental element, and the defence of honest and reasonable mistake of fact is not available. The prosecution only needs to prove a physical act occured.

What is the defence of honest and reasonable mistake of fact?

It is a defence to a strict liability offence if the accused can demonstrate they genuinely believed a particular state of facts. For example, if a licensed venue operator sold alcohol to a minor (conduct), the operator may have a defence if its agents genuinely believed that the minor was aged over 18. The reasonableness of that belief will depend on the circumstances. To extend the example, it may be more likely the belief was reasonable if the minor produced an authentic-appearing proof-of-ID card.

Where an accused discharges the evidential onus (that is, gives evidence of sufficient facts to establish the defence), the legal onus then turns to the prosecution to disprove the defence beyond reasonable doubt.¹

The defence is not available for mistakes of law. There is no defence for being mistaken about whether particular conduct was illegal.² As the proverb goes, ignorance of the law is no defence.

Is my offence ordinary, strict or absolute liability?

The presumption at common law is that a criminal offence requires proof of mens rea, and therefore that offences are of ordinary liability.³

This presumption can be displaced having regard to the following matters:⁴

• The words of the statute creating the offence: Statutory language may either fail to articulate a mens rea element (although this, by itself, is unlikely to be enough), or specifically exclude it.
• The subject matter of the statute: Where the offence is created for the purpose of public safety, the presumption may be displaced more easily, particularly if the penalty for the offence is monetary and moderate.
• Whether putting the accused under absolute liability will promote observance of the statute.

The nature of regulatory offences means they are more likely to be strict or absolute liability than general crime offences. They are less likely to carry terms of imprisonment, and are usually directed to community protection from commercial endeavours.

It is rare that a court will find an offence to be one of absolute liability without an express statutory pronouncement, either categorising the offence as absolute liability or excluding the application of the defence of honest and reasonable mistake of fact.

The category must be assessed on an offence-by-offence basis. It will not necessarily be the case that all offences under an Act are, for example, strict liability. It can be wise to obtain specialist advice for cases where there is no clear statutory position and the defence of honest and reasonable mistake may be in issue.

These principles were recently discussed by the Victorian Court of Appeal in the context of offences under the Legal Profession Uniform Law in Giurina v McLeay [2024] VSCA 326.

1. Jury Directions Act 2015 (Vic), s 61 ↩︎
2. Ostrowski v Palmer (2004) 218 CLR 493. ↩︎
3. He Kaw Teh v The Queen (1985) 157 CLR 523, 528 (Gibbs CJ); Sherras v De Rutzen[1895] 1 QB 918, 921. ↩︎
4. Director of Public Prosecutions v Hazelwood Pacific Pty Ltd & Ors (Ruling 2) (2019) 281 A Crim R 1, [41] (Keogh J) ↩︎