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Mistake in Queensland

Mistake in Queensland, set out in s 24 of the Criminal Code, provides an excuse for accused persons who acted under an ‘honest and reasonable, but mistaken, belief in the existence of any state of things’ when they committed the offence.

To succeed with the excuse, the mistake must have been one of fact. Mistakes of law do not provide any excuse to a criminal act in Queensland (s 22 of the Criminal Code). The difference between the two, though, is not always clear.

Mistake as a defence in criminal law in Queensland

Distinguishing between mistakes of law and fact

Determining the distinction between a mistake of fact and mistake of law can be difficult, even for the courts. There is no single test by which they may be distinguished, and each case must be considered on its merits. However, the courts often make reference to two general rules:

  1. where the case involves both a mistake of fact and mistake of law (a ‘compound event’), it will be considered a mistake of law, and
  2. where the mistake involves a thing or a place which is described in legislation, it will also be a mistake of law.
Example 1: If a person drives along a road at 60kmph in a 40kmph zone because they did not see the signage indicating the change in speed limit, there would be both:

  1. a mistake of fact – not realising there was signage indicating a change in the speed limit, and
  2. a mistake of law – not realising that the law in respect of speed limit at the given time was 40kmph.

Under the first rule, this would be considered a mistake of law and the person would not be able to claim the defence.

Under the second rule, the mistake relates to the speed limit in force at a particular place at the time the offence was committed. It will therefore amount to a mistake of law as it directly relates to something described in or set by legislation.

Example 2: If a person is accused of bigamy, if they held a ‘bona fide and reasonable’ belief that they were not married when they married another person, it would amount to a mistake of fact. However, if the mistaken belief was that the prior marriage had been properly dissolved, this would amount to a mistake of law.

If the accused has misunderstood the law and they committed the crime because of the misunderstanding, it will be considered a mistake of law.

Example 3: Where a landlord believes that the maximum allowable rent he or she may charge for their property is set under a particular Act but it is actually set at a different amount under a different Act, and the landlord receives rent in excess of the maximum, this will be considered a mistake of law because the landlord’s mistake relates to a belief as to what law applies.

Example 4: An accused who mistakenly believes they are legally entitled to fish in a prescribed area will have made a mistake of law. However, a mistake of fact could arise if the accused honestly believed on reasonable grounds, perhaps due to a faulty GPS system, that he or she was in an area where it was lawful to fish.

Effect of mistake in Queensland

The excuse of mistake in Queensland may not provide a full defence to a charge – the accused will instead be held responsible only to the extent that their conduct would have amounted to an offence had the circumstances been as they mistakenly believed them to be.

Mistake and mental elements

Where an offence requires proof of a mental element such as intention or recklessness, the prosecution must prove this element beyond a reasonable doubt. In such cases, a successful claim of mistake of fact provides a complete defence, as the accused could not have acted with intent or even recklessly if they were genuinely mistaken about what they were doing and the mistake was reasonable.

Example 4: If an Act prohibits the intentional importation of narcotics, and the accused did not actually know that they were in possession of narcotics, such as if they picked up the wrong bag at an airport, or had a genuine reason to believe they were something lawful, this will be a mistake of fact and will provide a full defence to the charge (unless it means they have actually committed a lesser offence).

Mistake and honest claim of right

Section 22(1) of the Criminal Code precludes an excuse of mistake in Queensland where the mistake relates to law. However, s 22(2) states that, where the offence relates to property, where the accused has acted or omitted to act because they honestly believed they had a right to the property, and they had no intention to defraud the rightful owner, they will not be held responsible for the offence.

Example 5: If the accused drove away in a car where they genuinely believed they had a right to use the car but in fact did not have that right, they may be able to claim a defence under s 22(2). This circumstance might arise, for example, where the car was held in trust and the accused, though not the legal owner, was allowed as a beneficiary of the trust to use it from time to time.

While s 22(2) and s 24 overlap to a degree, mistake can apply to a wider variety of offences than can honest claim of right. However, s 22(2) provides a complete defence while s 24 may not.

Exclusions

Some offences specifically state that the excuse of mistake in Queensland under s 24 of the Criminal Code does not apply, or applies in a more restricted way. For example:

This article reflects the state of the law as at 14 June 2016. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.com.au.

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