jules21 wrote:high_tea wrote: Hang about, you're talking about due diligence in the context of mistake of fact? That wasn't at all clear.
i can't be any clearer about this - i'm talking about these things because i found them in that document i linked. i hadn't even read it when i wrote my earlier posts.
high_tea wrote: What would the motorist be mistaken about? How would it get them anywhere, whether due diligence is available or not? What situation could they reasonably believe existed, such that they wouldn't have been comitting an offence?
the explanation of absolute liability on p.8 of the document i linked explains mistake of fact - if someone is caught with drugs in their luggage, a reasonable belief that their luggage did not contain drugs (e.g. the corby defence - that they were planted) is a defence of mistake of fact, under strict liability.
Mistake of fact would be if she thought it was oregano or something. In the right jurisdiction it would presumably be that she was ignorant of the drugs being there, despite due diligence. The point is that if she was right,
she wouldn't have done anything that constituted an offence. That's mistake of fact.
under strict liability for motorists, their duty is to avoid colliding with cyclists. i would suggest that similarly, a reasonable belief by a motorist that they had taken adequate steps to uphold that duty would also be a defence.
No. They would not be mistaken about any elements of the offence. If they honestly and reasonably believed it was a kangaroo, not a cyclist, that would be a defence. If the offence is "unlawfully colliding with a cyclist", they would still have comitted an offence, even if they were right about taking adequate steps to uphold that duty. Why? because
fault doesn't matter for offences of strict liability. If the offence is "negligently colliding with a cyclist", okay, but that's not an offence of strict liability.
presumably, the court would decide whether that belief was reasonable, or not - based on evidence of their driving and that of the cyclist. but the point is, the onus is on the driver to convince the court of their innocence, not on the prosecution to prove guilt (that's the reversal i referred to).
Neither that paper nor the Commonwealth Criminal Code says anything about reversing the onus.
Fault just doesn't matter for offences of strict liability.
There are offences where the onus is reversed in respect of certain elements - drug posession in Queensland(s9 of the Drugs Misuse Act 1986(Qld)) is one example of this. Now, the offence has no fault elements - liability is strict. Over and above that, s129(1)(c) reverses the onus of proof with respect to posession under certain circumstances. Nothing to do with helmets, just an example of strict liability and reversed onus of proof being
two completely different things.
Note that the onus is only reversed with respect to posession. The Crown is still required to make out the other elements; there is still a presumption of innocence.
high_tea wrote: We're talking about helmets, right? Well, what kind of driving is only dangerous when unhelemeted cyclists are involved? Honestly, I've got nothing.
no! we were originally, but then we moved on to strict liability in general. i was clear in an earlier post that helmet wearing should not affect blame for causing a collision - i suggested it should (not does, necessarily) mitigate liability for the consequences.
You mean reduce the sentence (criminally) or payout (civilly?). Sure, I don't see a drama with that.
EDIT: fix tag