¹ Der'i v. A.G. (1960) 14 P.D. 233; Ryu, P. K., “Contemporary Problems of Criminal Attempts” (1957) 32 N.Y.U.L.R. 1170, 1196.Google Scholar

² See the majority judgment in A.G. v. Yarkoni (1964) vol. 4 18 P.D. 7, 55.

³ See e.g. attempt and omission in U.S. v. Miro (1932), Fed. 58, 60; Glanville Williams, Criminal Law (2nd Ed.) p. 621, note 2. (Although according to his view, an attempt by omission can only occur in crimes of omission having a certain result.) With regard to accomplices, see the judgment of the President ( Agranat, J.) in Cananbah v. A.G. (1965) vol. 2 19 Google Scholar P.D. 488, 495, from which it emerges that in principle he does not differ from the minority view in the Yarkoni Case above, that there can be participation by means of omission.

⁴ Harding v. Price [1948] 1 K.B. 695, cited in Quelch v. Phipps [1955] 2 Q.B.D. 107; Westrup v. Commlth, 935. W. 646, 648, (cited by Hughes, , “Criminal Omissions” 67 Yale L.J. 590, 603)CrossRefGoogle Scholar; People v. Rallo, 6 P 2d. 516. See also Belling v. O'Sullivan (1950) S.A.S.R. cited in Glanville Williams, op. cit., 747.

It is interesting to note that sec. 13(2) of the Tasmanian Code, 1924, provides explicity as follows: “Except as otherwise expressly provided no person shall be criminally responsible for an omission unless it is intentional.”

⁵ Snyder, O. C., Criminal Justice 213 Google Scholar; Hughes, loc. cit., 602, 603.

⁶ In Zorbal v. A.G. (1961) 15 P.D. 1442, the question considered was the case of a person who had not obeyed the signals of a traffic policeman because he had not seen them. In defence it was pleaded that since the matter was one of omission, no absolute liability was to be imputed. In the event, the court had no need to deal with this aspect, upon proof that the driver had been guilty of negligence in not seeing the policeman. The question was indirectly dealt with in Gadisi v. A.G. (1965) 19 P.D. vol. 1, 688, in connection with the question of the presence of the element of volition in omission. I shall return to this judgment in the sequel.

⁷ [1948] 1 K.B. 695.

⁸ (1873) L.R., 8 C.P. 322.

⁹ The following is the relevant passage at p. 701:

“If, apart from authority one seeks to find a principle applicable to this matter, it may be thus stated: if a statute contains an absolute prohibition against the doing of some act, as a general rule mens rea is not a constituent of the offence; but there is all the difference between prohibiting an act and imposing a duty to do something on the happening of a certain event. Unless a man knows that the event has happened how can he carry out the duty imposed?” (Italics supplied.)

¹⁰ It should be observed that the view expressed in Harding v. Price was apparently not adopted as a general and final principle. So, for instance, the court held in Hill v. Baxter [1958] 1 All E.R. 193, 195, in dealing with an offence under sec. 49(b) of the Road Traffic Act, 1930, (failure to conform to traffic signs):

“The first thing to be remembered is, that the statute contains an absolute prohibition against ignoring Halt signs. No question of mens rea enters into the offence; it is no answer, to a charge under those sections, to say … ‘I did not notice the Halt sign’.”

Of special significance is the fact that the judgment was given by Lord Coddard, who had sat in the Harding Case.

In Israel, absolute liability has in fact been imposed at least in cases of omissions associated with an act (see the explanation of this notion further in the text) in Avinoam v. A.G. (1961) 15 P.D. 914 (driving without rear lights, contrary to sec. 117(a) of the Transport (Traffic Control) Regulations).

In the United States there are also examples of the imposition of absolute liability for criminal omissions, see e.g. State v. Irvine (1910) 52 So. 542, and State v. Masters (1928) 144 S.E. 718.

¹¹ Cf. 1 Russell on Crime (12th Ed.) [Vol. I, p.] 61.

¹² So it was in fact in Harding v. Price, above; sec. 22 of the Road Traffic Act, 1930, makes no express mention of any such mental element, in contrast to the corresponding sec. 6 in the Motor Car Act of 1903, which was repealed by the 1930 Act, where the word “knowingly” appears. Apparently, according to the accepted rules of interpretation, the deletion of the element of knowledge in the repealing Act should have led the court to hold that the intention of the legislature was to create absolute liability but, as stated, the basic view of the court prevented it from giving such a reasonable interpretation. (See also the observation of Singleton J., ibid., 704.) The court's mode of interpretation earned sharp criticism by Edwards in his comments on this case in (1948) 64 L.Q.R. 176.

A like approach as to the influence of the consideration that the crime is of the omission class, upon the interpretation of a statute can be found in 22 Corpus juris Secundum [Vol. 22] sec. 30, note 60, which relics on the judgment in Mackey v. U.S. 290, F. 18.

Possibly the same idea may be found, if one examines it closely, in the judgment of the District Court Tel Aviv-Jaffa in A.G. v. Mashoff (1962) 31 P.M. 65, where the charge was driving a taxi contrary to reg. 11(b)(1) of the Transport Regulations, namely driving without ensuring that the foot brake was in good condition. During the course of the trial, it was proved that the accused did not know that the brake was defective and was also not negligent. Counsel for the prosecution argued that the offence under the section was absolute and the Court held (at p. 67) — “according to the wording of the regulation which puts upon the driver a duty ‘to ensure» that the brakes work, the accused can certainly prove that he did all he could do ‘to ensure’. Had the regulations said that it is prohibited to travel in a car with defective brakes, it is possible that the evidence would not avail the accused, but since the duty under the regulation is not general but personal and imposes particular affirmative duty upon the driver, he can then prove that he has carried out this duty.” (Italics supplied.) This means that the Court expressed the view that if the offence comprised an affirmative act, or at the most an omission associated with an act (travelling in a car with defective brakes), it would not hesitate to construe the regulation as imposing absolute liability, but since the regulation refers to a mere omission, the court could not give it such a construction. This very regulation, 11(b), be it noted, was itself construed in Weiss v. A.G. (1952) 7 P.M. S. 103, as imposing absolute liability.

¹³ See e.g. Brend v. Wood (1946) 62 T.L.R. 462, 463; R. v. Hallam [1957] 1 Q.B. 569; Lim Chin Aik v. R. [1963] A.C. 160.

¹⁴ See Glazerbrook, , “Criminal Omissions, the duty requirement in offences against the person” (1945) 16 L.Q.R., 386 Google Scholar and the example given at p. 387.

¹⁵ In England also, where there are still common law offences, the rule of absolute liability applies in general to statutory offences alone, subject to some exceptions which need not be dealt with here, and accordingly the same result follows.

¹⁶ Cf. sec. 229 of the Criminal Code Ordinance, 1936.

¹⁷ Sec. 82(1) of the Ordinance prescribes criminal sanctions for non-fulfilment of the duties thereunder.

¹⁸ Reg. 158 of the Transport Regulations, 1961.

¹⁹ Reg. 342(a) together with reg. 351 and reg. 142.

²⁰ For this test see Snyder, op. cit., p. 211, note 83.

²¹ The terms of reg. 142 is as follows: “No person shall use a car unless the lighting system thereof is in order and functions properly.”

²² See A.G. v. Creenwald (1958) 12 P.D. 2017, 2018. Kircheimer, O., “Criminal Omissions” (1942) 55 Hvd. L.R. 615, 616.Google Scholar

²³ This approach is related particularly to mere omissions and to a lesser degree to omissions associated with an act. In fact, in every crime where negligence is present, in the sense of not taking reasonable care, there exists an omission associated with an act—for instance, driving act without proper care and attention (omission). (See Snyder, op. cit., 211, note 83; Cadisi (F.H.) (1966) vol. 1, 20 P.D. 57, 76.

²⁴ See the formulation of this approach in Hughes, op. cit., 613. Hughes goes rather further and holds that in omissions the accused should also enjoy the defence of mistakes of law (at p. 602), if it gives rise to lack of knowledge of the duty imposed upon him. But see the criticism of this view in Hall, J., General Principles of Criminal Law (2nd. Ed.) 200.Google Scholar

²⁵ In any event, there are those who today object to this conception and explain the paucity of criminal omissions more against the background of technical difficulties in their operation, such as questions of causation, of fixing liability for knowledge of the duty, and questions of the sources of the duty, than on considerations of the degree of moral guilt. See Kircheimer, op. cit., 612.

²⁶ (1923) 290, F. 18.

²⁷ By virtue of sec. 1241 of the Postal Laws and Regulations, and sec. 225 of the Penal Code (Comp. St. sec. 10395).

²⁸ At pp. 20–21.

²⁹ It appears to me that in the case of omissions associated with acts, this consideration does not arise at all, since the time for knowing the duty is simultaneous with the affirmative act and the two are not to be severed, since this in itself will cause public harm. For instance, after the driving is complete there is no longer any reason to repair the brakes except for further journeys.

³⁰ Cf. the provisions of sec. 6 of the Interpretation Ordinance.

³¹ See the general account given in Kircheimer, op. cit.

³² The reference is to the theory of the German scholar, Von Buri, , summarized in Hart, and Honoré, , Causation in the Law 397.Google Scholar

³³ See Hall, op. cit., 198.

³⁴ In this context it is perhaps possible to understand the remarks of Hughes, op. cit., 602, who holds that the imposition of absolute liability for an omission—“… is a liability for a complete absence of relevant conduct. Such liability is indefensible even by the weak and compromised arguments which are conventionally used to justify the strict liability in cases of commission.”

³⁵ This theory is not even reconcilable prima facie with the existence of crimes of negligence, but the reason given for the latter is that in the case of negligence the accused occupies himself with other thoughts not connected with the duty placed upon him, and thereby prevents the existence of the duty coming to his consciousness, see Hart and Honoré, op. cit., 397.

³⁶ Hart and Honoré, op. cit., 397; Frankel, Lionel H., “Criminal Omissions: A Legal Microcosm” (1965) 11 Wayne U.L.R., 267, 384–87Google Scholar; Kircheimer, op. cit., 618.

³⁷ Ibid., 701.

³⁸ See also the remarks of Singleton J. at p. 704. The observations of Lord Goddard cited above repeat one of the submissions of defence counsel who expressed in argument this idea more explicitly as follows:

“In the present case, there was a duty to do something, namely to report to the police, and the duty was quite impossible to perform when that which was to be reported was unknown to the defendant.”

³⁹ See Glanville Williams, op. cit., 747–48.

⁴⁰ On the assumption that a duty exists towards that neighbour.

⁴¹ Haham v. A.G. (1959) 13 P.D. 615, 658; Mandelbrot v. A.G. (1956) 10 P.D. 281, at 317.

⁴² The second example given in the text above. This defence is to be found in sec. 17 of the Criminal Code Ord. It is interesting to observe that the section speaks solely of an act, whilst the following section deals expressly with an act or omission, but it seems that there is no reason to draw any conclusion, as to the availability of this defence for omissions, from the difference of phraseology.

⁴³ The third example in the text. The defence is provided by sec. 18 of the Criminal Code Ord. See previous note.

⁴⁴ The fourth example above. The defence is provided by sec. 12 of the Criminal Code Ord.

⁴⁵ This, it would appear, is also the attitude adopted by the draftsman of the Model Penal Code, Tentative Draft No. 4, American Law Institute, which provides in sec.2.01:

“A person is not guilty of an offense, unless his liability is based on conduct which includes a voluntary act or the omission to perform an act, which it was physically possible to perform.” (Italics supplied).

The only fault with this definition is that it relates solely to situations of physical compulsion and does not cover other situations of complete absence of freedom of choice arising from lack of awareness, automatism etc. See also Gibney, I. T., “The Rare Defence—Impossibility” (1963) Crim.L.R., 490 Google Scholar.

⁴⁶ According to Howard, C., Strict Responsibility 206 Google Scholar, the defences of necessity and inevitable accident are available in cases of strict responsibility and the only defence which is denied in such cases is that of mistake of fact. If this view is correct, then in those instances which are appropriate for these defences to operate, even in omissions, no need arises to seek any other new defence of so-called impossibility.

⁴⁷ Edwards, Mens Rea in Statutory Offences 79, examines the validity of this judgment saying:

“The impossibility of reporting the accident, was only relative, on account of the driver's ignorance that an accident had occurred.”

⁴⁸ As, for example, in Reg. v. Woodrow (1846) 153 E.R. 907 (a person convicted for selling adulterated tobacco although he did not know of the adulteration). There are innumerable examples of absolute liability for affirmative acts which there is no point in citing.

⁴⁹ A.G. v. Haham (1959) 13 P.D. 651, 658; Mizrahi v. A.G. (1960) 14 P.D. 1882; Gadisi v. A.G. (1965) vol. 1, 19 P.D. 688; Godisi (F.H.) op. cit., 65.

⁵⁰ There is another view that volition of a physical deed has no connection at all with mens rea but is part of the actus reus; see A.G. v. Haham, above.

⁵¹ See Glanville Williams, op. cit., 15; Corpus Juris Secundum, vol. 22, p. 102, note 595. And see Gadisi (F.H.) op. cit., 63–65.

⁵² Cf. Russell on Crime, op. cit., 38, note 2.

⁵³ See p. 493 above.

⁵⁴ Gadisi v. A.G., as above.

⁵⁵ Although the charge was not so drawn but incorporated only reg. 342(a) of the Transport Regulations alone, with consent of counsel for the accused, the proceedings were conducted as if the charge had been so worded originally and included reg. 351 and 142; see pp. 670–71 of the judgment.

⁵⁶ But see the judgment of the President Agranat J. in Gadisi (F.H.) op. cit., 64, in which he expressed the opinion that lack of braking lights was not an omission but only a certain factual situation.

⁵⁷ “Subject to the provisions relating to negligent acts or omissions a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.” However, the Supreme Court in Gadisi (F.H.) op. cit., 65, took a somewhat different view. According to this view, “volition” is needed only in intentional omissions, whereas in negligent omissions, as omissions without any fault, there is no need for “volition”. The question of the defence of absolute impossibility was not discussed at all.

⁵⁸ Ibid., 642.

⁵⁹ See, however, for another view, Frankel, op. cit., 367, who suggests that one should proceed carefully in extending the range of criminal omissions, and doubts the effectiveness of imposing criminal sanctions in every case of omission.

⁶⁰ Compare, for example, in torts the approach of the Scottish legislator in the Occupiers Liability (Scotland) Act, 1961, which abolished in a direct manner the artificial differences in the liability of the occupier of land for negligence, and applied the principle of direct liability, and this after all the attempts to limit the occupier's immunity by artificial distinctions, and among them that between act and omission (although in the reverse direction), only led to confusion of concepts and produced no desirable definition of the operation of the general principle of negligence. (See Barak, A., “Occupiers Liability in Tort”, Legal Studies in Memory of Abraham Rosen-thai, p. 104—in Hebrew.Google Scholar)

⁶¹ See Glanville Williams, op. cit., 26:

The Supreme Court in the case of Gadisi (F.H.) is reported to have proposed to abolish the doctrine of absolute liability for negligence, placing the burden of proof on the accused.