MONOGRAPH 40 volume 1

15 Research monograph 40 1. Introduction 1.2.3 Strict liability offences generally It has been said that a conviction for a strict liability offence is “nearly guaranteed”. 118 Another professed benefit of strict liability offences is “the costs of prosecution are low”; this is in addition to the chances of conviction being high. 119 Levenson further argues: because the funding and prestige of prosecution offices is often based upon the number of cases handled and the prosecution’s win-loss record, the pursuit of strict liability crimes can often assure the prosecutor of an impressive conviction box score. 120 Overall, the various benefits place pressure on the legislature to “enact more strict liability crimes.” 121 The Australian Law Reform Commission set out the policy rationale and economic and other benefits of strict and absolute liability offences in its Traditional rights and freedoms — encroachments by Commonwealth laws report. 122 The Canadian Supreme Court articulated the policy rationale for strict liability environmental offences in R v Sault Ste. Marie : The correct approach in public welfare offences is to relieve the Crown of the burden of proving mens rea … and to the virtual impossibility in most regulatory cases of proving wrongful intention, and also, in rejecting absolute liability, admitting the defence of reasonable care. 123 The “gamble” for the prosecuting authority in preferring a Tier 1 charge, that carries a heavier sentence over a lesser Tier 2 strict liability charge, was noted by Biscoe J in EPA v Snowy Hydro Ltd : Obviously, in considering whether to plead guilty or not guilty, the maximum and the likely penalty to which the accused is exposed is in the forefront of the mind of the accused and of those advising him or her. Had the accused been charged with the higher offence, carrying the heavier penalty, a plea of not guilty might have been entered. The Crown might then have been put to the proof, with the chance that the accused would walk away without conviction or penalty at all. It is that chance which the accused surrendered by pleading guilty to the lesser offence with the lower maximum punishment. Similarly, the Crown forfeits the chance of securing a conviction of an aggravated offence, carrying a heavier penalty, by electing to present an indictment with a count, or to prosecute a charge, of a lesser offence carrying a lower maximum punishment. 124 Notably, there is no history of a practice in the LEC of a prosecutor charging Tier 1 and Tier 2 offences in the alternative. 125 118 Levenson, above n 93 at p 404. This proposition is supported by evidence from this study. There were 36 alleged offenders who pleaded not guilty to the principal offence (in all cases a Tier 2 offence). This represented 7.3% of the 493 Tier 2 offences. In all 36 cases, the offence was proven. In three cases, the LEC ordered the dismissal of charges without proceeding to record a conviction (s 10 dismissal); in one case, the court convicted the offender but disposed of the proceedings without imposing any other penalty (s 10A) in relation to an offence under the NV Act . The three s 10 dismissals were ordered in relation to offences under the EPA Act : s 76A offence (once) and s 125 offences (twice). 119 ibid. Levenson at p 468. 120 ibid p 433. 121 ibid p 468. 122 Australian Law Reform Commission, Traditional rights and freedoms — encroachments by Commonwealth laws , Report No 129 at www.alrc.gov.au/publications/laws-impose-strict-or-absolute-liability , accessed 16 May 2017. 123 [1978] 2 SCR 1299 at 1300 (text of headnote). 124 (2008) 162 LGERA 273; [2008] NSWLEC 264 at [146] citing the appellate authority of Kirby P in R v Booth (unrep, 12/11/93, NSWCCA). 125 See Charging practices at [3.4].