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How is Honest and Reasonable Mistake of Fact Used as a Defence?

When using the defence of honest and reasonable mistake, the accused carries an evidentiary onus.

In Australia, there are certain criminal offences categorised as ‘strict liability offences’. A strict liability offence is one in which the prosecution is not required to prove that the accused intended to commit the alleged offence.

In other words, a strict liability offence is one in which the prosecution does not have to prove that the accused has a mens rea or ‘guilty mind’.

One common defence to a strict liability offence is a defence based on an ‘honest and reasonable mistake of fact’.

Here, we explain how this defence works, and the circumstances in which it may apply.

 

What is the ‘Honest and Reasonable Mistake of Fact’ Defence?

Section 24 of the Criminal Code Act 1899 summarises this defence is stating that:

“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.”

This means that if a defendant can prove that they made an honest and reasonable mistake as to a set of facts relevant to the alleged offence, it can provide a legal defence for the defendant doing what would otherwise be a criminal offence.

 

How Does the ‘Honest and Reasonable Mistake of Fact’ Defence Work?

To be successful, this defence has three elements which must be demonstrated to exist by the defendant:

  •  The mistake must be honest: you must be able to prove that you honestly and genuinely held the belief in question
  •  The mistake must be reasonable: this is judged according to whether an ordinary person in your circumstances would have held the belief
  •  The mistake must be as to fact and not law: you must prove that if the mistaken facts you believed had been true, you would not be committing an offence

Regarding the last point above, it is important to note that a ‘mistake of fact’ is different from a ‘mistake of law’. In fact, being mistaken about a law is not a valid defence to any criminal act, as stated by Section 22 of the Criminal Code Act 1899 which reads:

“Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.”

When using the defence of honest and reasonable mistake, the accused carries an evidentiary onus, which means that they must produce evidence to prove (on the balance of probabilities) that they held a mistaken belief as well as explain what contributed to that mistaken belief.

Once the defence has been raised, the onus then shifts to the prosecution to prove beyond a reasonable doubt that no such belief was held by the accused.

 

What Are Circumstances I Could Use This Defence In?

A variety of charges can be defended using the honest and reasonable mistake of fact defence, including:

Driving while disqualified

This can be defended by proving that the defendant was not aware that their licence had been disqualified. For example, the defendant may be able to prove that the relevant regulatory body sent the suspension notice to an incorrect address, meaning that the defendant could not have known that their licence was suspended.

Dealing with property suspected of being the proceeds of crime

This can be defended by proving that the defendant mistakenly believed that the property in question was not the proceeds of crime.

 

Do You Want To Use ‘Honest and Reasonable Mistake of Fact’ Defence?

If you have been charged with an offence that you believe could have occurred due to an honest and reasonable mistake of fact, it is important to seek legal advice immediately.

At Guest Lawyers, our team of Brisbane criminal lawyers are licensed to practice across Australia and often travel to other states and territories to do so. If you would like to discuss a defence based on an honest mistake of fact, get in touch with our lawyers either via Guest Lawyers’ email or by calling (07) 3211 3007.

We offer free initial consultations (including in prisons) to assist with a number of assault charges, and act for all persons required to appear before the Magistrates and Supreme Court. We also conduct appeals in the Court of Appeal and High Court.