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Strict liability or reversal of the burden of proof for offences

The purpose of this disclosure is to identify strict and absolute liability offences and other types of reversal of the burden of proof for offences as they can have a significant impact on a person's rights.

Legislation should not provide that it is the responsibility of an alleged offender in court proceedings to prove innocence, for example, by disproving a fact the prosecution would otherwise be obliged to prove, unless there is adequate justification. The concern is that a reversal of the burden of proof may lead an accused person to be convicted despite the existence of a reasonable doubt as to their guilt. Recognition of this principle appears in s 25(c) of the New Zealand Bill of Rights Act that provides “everyone who is charged with an offence has, in relation to the determination of the charge, the right to be presumed innocent until proved guilty according to law.”

Question 4.4

4.4  Does this Bill:  
(a)   create or amend a strict or absolute liability offence? [YES/NO]
(b)   reverse or modify the usual burden of proof for offences, including for civil liability under a civil pecuniary penalty regime? [YES/NO]

What matters are covered by the question?

Strict and absolute liability offences generally only require proof of the prohibited act or state of affairs. The prosecution is not required to prove all or some mental or fault elements in the offence.[37]

There is no defence available for an absolute liability offence. A strict liability offence differs from an absolute liability offence in that a defence is available if the defendant can show that they were not at fault or took all reasonable care.

Section 67(8) of the Summary Proceedings Act 1957 used to require the defendant to prove any exception, exemption, proviso, excuse or qualification in a summary offence. However, with the repeal of that provision on 01 July 2013 and the removal of the distinction between summary and indictable offences, any such exception, exemption, proviso, excuse or qualification will not be effective to place a burden of proof on the defendant unless the provision quite clearly places such a burden on the defendant.[38]

A provision that contains an explicit reversal of the burden of proof will require disclosure under Question 4.4, for example:

  • offences that provide that any exception, exemption, proviso, excuse, or qualification may be proved by the defendant;[39]
  • offences where the burden of proving that the defendant had a reasonable excuse lies on the defendant.[40]

What is the nature of the further information sought?

If the answer is YES, please:

  • identify the provision(s) that create or amend the strict or absolute liability offences or that reverse or modify the usual burden of proof for an offence or civil liability;
  • explain why the strict or absolute liability offence or the reversal or modification of the burden of proof is necessary (you will need to first describe the conduct or act the strict or absolute liability offence or reversal or modification of the burden of proof will apply to and then explain why the offence or reversal or modification of the burden of proof is necessary); and
  • identify and explain the nature of any features that will mitigate the potential adverse effects of the strict or absolute liability offence or the reversal or modification of the burden of proof.

It will be very difficult to justify an absolute liability offence.

For a reversal of the burden of proof to be justified as necessary for a strict liability offence the relevant fact must be something inherently impractical to test by alternative evidential means and the defendant would be particularly well positioned to disprove guilt. A strict liability offence will only be justified if it will be easier for the defendant than the prosecution to show why the defendant was not at fault. See the “Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Criminal Procedure (Reform and Modernisation) Bill”[41] on the circumstances when a reversal of the burden of proof may be justifiable including when:[42]

  • the defendant is voluntarily involved in a regulated activity;
  • the offence would apply in very limited circumstances; and
  • the element to be proven is within the knowledge of the person concerned and proof of it would not impose an undue burden on the defendant.

In considering whether the defendant will be better placed than the prosecution to disprove guilt the following factors should be considered:

The nature and context of the conduct being regulated

The Courts have accepted that there is a distinction between truly criminal offences that punish wrongdoing and public welfare regulatory offences that seek to protect the public and prevent future harm. The protections afforded a defendant in requiring the prosecution to prove all elements of an offence are considered lower where the offence is part of regulatory legislation designed to protect public and societal interests, as opposed to truly criminal offences involving moral culpability. For example, where a defendant participates in a heavily regulated area or one that requires a license it will be easier to justify an obligation on the defendant to explain why they breached certain conditions or why they were not at fault.

The reason why the defendant is required to provide evidence or prove on the balance of probabilities that they were not at fault

Sometimes a defendant may be the person who is best placed to explain why they acted in a particular way. For example, in the situation where a defendant is in charge of machinery or a vehicle it may be easier for a defendant to show why they were not at fault than for the prosecution to prove they were careless. In respect of truly criminal offences it has been accepted that the possession of a certain quantity of a drug is evidence of trafficking and it is for the defendant to show they had no intention to supply the drug to another and were in possession of the drug for their own use.

The ability of the defendant to exonerate themselves

If a strict liability offence or reversal or modification of the burden of proof is to be justified the defendant must be in a position to exonerate themself. How easy will it be for the defendant to obtain the information necessary to establish the relevant defence or that the defendant took all reasonable care? Will the defendant have access to that type of information? Will the defendant be able to understand the information they need to establish the defence?

The level of penalty

Generally, offences where the prosecution is not required to prove all elements of the offence should carry penalties at the lower end of the scale for that type of offence. Public welfare regulatory offence provisions that reverse the onus of proof are more likely to be justifiable where the penalty levels are at the lower end of the scale.

Offences with terms of imprisonment longer than 1 year are generally considered to require the prosecution to prove all the elements of the offence beyond reasonable doubt and are unsuitable to be strict liability offences or to involve a reversal of the burden of proof. A penalty of imprisonment over 1 year is usually associated with an indictable offence.

If the answer is NO, no further information is required.

Further sources:

Notes

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