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This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.
The defence of honest and reasonable mistake can be raised when the accused is charged with a strict liability offence. If the accused had an honest and genuine reason to believe that they were acting lawfully when they committed the offence, and if they would not have acted as they did had they known they were committing an offence, then the defence succeeds. An honest and reasonable mistake of fact renders the accused’s actions innocent and affords an excuse.
Burden of proof
The burden of proof is on the accused to raise the defence of honest and reasonable mistake on the balance of probabilities. The prosecution then has to rebut this defence and prove beyond a reasonable doubt that the accused’s actions were intentional and that they knew they were committing an offence.
What must be proven
When raising this defence in evidence, the accused must be able to establish that they held an honest and reasonable belief that facts existed which, had they existed, would have meant they were not committing an offence.
The test as to whether the belief was honestly held is a subjective test. The test as to whether the belief was reasonable in the circumstances is an objective test.
There are three elements that must be satisfied to successfully prove this defence.
The mistake must be honest
The accused must be able to prove that they honestly held the belief in mistaken facts.
For example, if a person is charged with Driving Whilst Suspended, but was not aware that their licence had been endorsed as suspended due to not having received the notification from the Roads and Maritime Services.
The belief forming the basis of the mistake must have been reasonable in the circumstances.
To assess what is ‘reasonable’, the court will ask whether an ordinary person in the same circumstances would have held the same belief or acted in the same way.
The mistake must relate to fact rather than law.
A person cannot argue honest and reasonable mistake based on the fact that they did not know what they were doing was illegal. Rather, the belief must relate to the facts of the offence. The accused must also be able to prove that if their belief had been correct, they would not have been committing an offence.
For example, if a speedometer was not calibrated correctly and the driver was charged with exceeding the speed limit, they could argue honest and reasonable mistake of fact as they relied on the faulty speedometer thinking it was accurate. If the speedometer had been correct, they would not have committed the offence.
Is the defence available for all criminal offences?
No. The defence of honest and reasonable mistake is generally only available to strict liability offences. A strict liability offence is an offence where the accused is criminally liable even in the absence of a criminal intent.
Proudman v Dayman
The leading case that explores the defence of honest and reasonable mistake is Proudman v Dayman (1941) HCA 28 which establishes that for strict liability offences, such as drink driving and speeding offences, an accused person will be found ‘not guilty’ if he or she held an honest and reasonable belief (although a mistaken belief) in a state of facts which, if they existed, would have made the accused person’s act innocent.
What happens if I am successful in proving my defence?
If your defence is raised successfully and is accepted by the court, you will be found not guilty of the offence and no penalties will apply.
If you require legal advice or representation in a criminal matter or in any other legal matter please contact Go To Court Lawyers.
faqs: - question: 'What is the difference between the subjective and objective tests for honest and reasonable mistake of fact?' answer: 'The subjective test applies to whether the belief was honestly held, focusing on what the accused genuinely believed at the time. The objective test applies to whether the belief was reasonable, asking if an ordinary person in the same circumstances would have held the same belief or acted similarly. Both tests must be satisfied for the defence to succeed in NSW courts.' - question: 'Can I use honest and reasonable mistake of fact defence for any criminal offence in NSW?' answer: 'No, honest and reasonable mistake of fact can only be raised for strict liability offences in NSW. This defence cannot be used for offences that require proof of intent or knowledge. The mistake must relate to facts, not law, meaning you cannot claim ignorance of what conduct is illegal under NSW criminal law.' - question: 'How much does it cost to get legal advice about an honest and reasonable mistake defence?' answer: 'Go To Court Lawyers offers a fixed consultation fee of $295 to discuss your honest and reasonable mistake defence. During this consultation, a criminal lawyer will assess whether your circumstances meet the three required elements and advise on the strength of your potential defence for your specific strict liability offence charges.' - question: 'How can a criminal lawyer help me with an honest and reasonable mistake of fact defence?' answer: 'A criminal lawyer can gather evidence to prove your honest belief was reasonable in the circumstances, prepare your defence to meet the balance of probabilities burden, and present compelling arguments to establish all three required elements. They will also anticipate prosecution rebuttals and strengthen your case against challenges to your defence in NSW courts.' - question: 'Is there a time limit for raising an honest and reasonable mistake of fact defence in NSW?' answer: 'You should raise this defence as early as possible in criminal proceedings, typically during your plea or at the earliest court mention. While there is no strict statutory time limit, delays in raising the defence may weaken its credibility and limit your lawyer''s ability to gather supporting evidence effectively in NSW courts.' ---