T H E ADELAIDE LAW REVIEW REGULATORY OFFENCES Negligence as a basis of liability While the courts in England have construed regulatory offences1 either as requiring proof of mens rea or as imposing strict respon~ i b i l i t y ,Australian courts have frequently recognised the concept ~ of negligence, 'the half-way house between mens Tea and strict resp~nsibility',~ being a more suitable basis of liabilitye4 One as a recent decision of illustration of this approach is Brew v. Hogarth J. of the Supreme Court of South Australia. In this case, the appellant, whose car was parked on the opposite side of a busy city street, was prevented by a stream of passing traffic from crossing the street in time to remove the vehicle before the parking meter expired. He appealed to the Supreme Court against his conviction by the justices on a charge of causing allowing permitting or suffering a vehicle to remain standing in a metered space while the expired indicator on the meter was visible, an offence prescribed under a city by-law.6 In dismissing the appeal Hogarth J. held that although the words 'cause', 'allow', 'permit' and 'suffer' usually imply a consent to the event caused, allowed, permitted or suffered, under the by-law it was unnecessary for the prosecution to establish an actual consent on the part of a motorist to his vehicle remaining in a metered space. Instead it was sufficient to establish a failure to take reasonable steps to remove the vehicle. His Honour held that the appellant had failed to take such reasonable steps since being delayed by passing traffic in a busy city street is not an 'extraordinary occurrence' but rather 'one of the ordinary consequences of everyday life' that should be foreseen as a reasonable p~ssibility.~ illustration An of an extraordinary occurrence is afforded by the 'extreme example' of a person being injured when crossing the road and thus being prevented from removing his vehicle in time. 1. The term 'regulatory offence' embraces those classes of summary offences where proof of mens rea is usually not required. See Howard: S t ~ i c t Responsibility ( 1963), 1, n.3. 2. E.g., Lim c h i n Aik v. The Queen [1963] A.C. 160 (P.C.). 3. Glanville Williams: Criminal Law (2nd ed. 1961), 262. 4. See generally Howard: Strict Responsibility (1963), where the Australian case-law is analysed in depth. 5. [I9641 S.A.S.R. 90. 6. S. 4 ( b ) of by-law LXVIII of the Council of the Corporation of the City of Adelaide. This provision also prescribes the offence of leaving a vehicle standing in a metered space while the expired indicator on the meter is visible. 7. [I9641 S.A.S.R. 90, 93. RECEAT CASES 395 Although no authorities were cited the approach adopted is similar to that of the High Court in Ferrier v. Wilson8 where it was held that the offence of allowing rubbish to fall into Sydney Harbour required proof of negligence. Proof of mens rea was not reqtured but liability would not be imposed if the prohibited event was due to some occurrence which could not reasonably have been foreseen or preventedeg In O'Sullivan v. Truth and Sportsman Ltd.lo the High Court held that proof of mens rea was required on a charge of causing to be offered for sale newspapers which contravened a statutory restriction on newspaper reports of immorality. However this decision is probably applicable only where 'cause' is not coloured by other words such as 'allow', 'permit' or 'suffer' which are likely to be interpreted as evidencing a legislative intention to punish negligence.ll Had the approach advocated by the Privy Council in Lim Chin Aik v. The Queen12 been adopted the offence would have been construed either as requiring proof of mens rea or as imposing strict liability. Either construction would have been unsatisfactory. Requiring proof of mens rea would have made the offence unworkable, for it is a reasonable assumption that it was designed to prevent negligence and that most motorists who fail to remove their vehicles in time do not possess an intentional or reckless state of mind, but, like the appellant in the instant case, are merely negligent. Imposing strict responsibility would have resulted in the conviction not only of those who are negligent, for example, the appellant, but also of those whose conduct is quite reasonable, for example, the Good Samaritan who is delayed as a result of telephoning an ambulance for an injured pedestrian.13 8. [1906] HCA 77; (1906) 4 C.L.R. 785. 9. For a discussion o f this case see Howard: Strict Responsibility (1963) 55-58. It is clear that the defence of honest and reasonable mistake o f fact (see Prot~dmanv . Dayman [1941] HCA 28; (1941) 67 C.L.R. 536, and analysis thereof in Howard. op. cit., 58-62 and Chaps. 5, 6 ) was not available t o the appellant since he had made no mistake as to the status either o f the parking space or the indicator. For a discussion o f the difference between the rule in Ferrier v. Wilson and the rule in Protcdrnan v. Dayman, see Howard: Strict Responsibility (1963), 138-140. lo. [1957] HCA 8; (1957) 96 C.L.R. 220. 11. In this respect 'permit' and 'allow' are synonymouc; - Ferrier v. Wilson [1906] HCA 77; (1906) 4 C.L.R. 785. For 'suffer' see Howard: Strict Responsibility (1963), 55. n.33. T h e same approach could have been adopted even i f the appellant had been convicted of the alternative offence pre~cribed under the by-law of leaving a vehicle standing in a metered space while the expired indicator o n the meter is visible. It is quite clear, however, that an English court woulcl construe such an offence as imposing strict responsibility: see, e.g., Strong v . Dawtry [I9611 1 W.L.R. 841. 12. [I9631 A.C. 260. 13. C f . Edwards: A4ens Rea in Statutory Offences (1955),' Chaps.' 4-7, where the English authorities on the interpretation o f 'cause', allow', permit' and 'suffer' are discussed. 396 THE ADELAIDE LAW REVIEW However, even if the offence were construed as one of strict responsibility in situations such as the 'extreme example' referred to above, it could be argued that since the vehicle remaining in the metered space was not attributable to any voluntary act or omission on the part of the accused the actus reus of the offence had not been committed.14 Nevertheless in jurisdictions where the doctrine of strict liability is in vogue there is no guarantee that such an approach will be adopted, especially in situations which are less extreme.15 Finally, it may be noted that in the instant case, as in Ferrier V. Wilson, the prosecution carried the persuasive burden of establishing facts from which it could be inferred that the appellant had been negligent. However, as Dr. Howard points out, requiring this of the prosecution map prevent the effective administration of criminal this reason the same commentator justice in this sphere.l"or argues that once the prosecution has established beyond reasonable doubt the facts constituting the actus reus of the offence a persuasive burden should be cast on the accused to exculpate himself by establishing, on the balance of probabilities, facts from which the court can infer that he had not been negligent.17 As this is now the position where an accused relies on the defence of honest and reasonable mistake of factls perhaps the same rule should also operate where the approach in Ferrier v. Wilson is adopted. This would seem desirable not only in the interest of expediency and justice but also because it is quite conceivable that a court might adopt the Ferrier v. Wilson approach where the reasonable mistake of fact doctrine would also have been applicable.lg W. B. FISSE." 14. E.g. Kilbride v. Lake [I9621 N.Z.L.R. 590: see Howard: Strict Responsibility (1963), 204-207. This approach would be inapplicable in the Good Samaritan example since the decision not to remove the vehicle but to assist the injured pedestrian would be regarded as voluntary. 15. E.g., Parker v. Alder [I8991 1 Q.B. 20. Cf. Larsonneur (1933) 24 Cr.App.R. 74. 16. Howard: Stlict Responsibility (1963), 40, 41. 17. Id., at 41-43. 18. Lenzi v. Miller [I9651 S.A.S.R., 1, 16 per Bright J.; Tanner v. Smart [I9651 S.A.S.R., 44; and cf. Norcock 17. Bowey (15 February 1966), a decision of Chamberlain J, of the South Australian Supreme Court (as yet unreported). The judgment of Dixon J. (as he then was) in Proudinan v. Dayman ( [1941] HCA 28; 1941) 67 C.L.R. 536, is not clear on this point. 19. The principle in Ferrier v. Wilson could be applied in any case where the reasonable mistake of fact doctrine is applicable. The converse, however, is not true. See Howard: Strict Responsibility (1963), 138-140, and supra n.9. " LL.B. (Cant.), Lecturer in Law, University of Adelaide.