Mistake of Fact in Tasmania
Mistake of fact is a criminal defence that can be relied on when a person is charged with an offence that does not require a specific mental state such as intention or recklessness. Mistake of fact in Tasmania is codified in section 14 of the Criminal Code Act 1924. This article deals with the legal defence of mistake of fact in Tasmania.
What is mistake of fact?
The defence of mistake of fact means that the accused honestly and reasonably but mistakenly believed in a set of facts that, had they existed, would have rendered their conduct innocent. It is important to note that a mistake of law does not amount to a defence. If a person mistakenly believed that their conduct was not illegal, this will not affect their liability.
Situations, where a person can rely on mistakes of fact, are:
- Where they received stolen property believing the property was lawfully acquired;
- Where they made an untrue statement under oath, believing it to be true.
- Where they had sexual contact with a 15-year-old who had told them that she was 18.
- Where they had sex with a person who appeared to be consenting to sex but was not.
Strict liability offences
Strict liability offences are offences that do not have a fault element, but where the accused must have had knowledge of the particular state of affairs needed to make the act criminal. To be found guilty of a strict liability offence, a person does not have to have intended or foreseen the commission on the offence, but they have to have known about the existence of a relevant fact, such as the age of a person. The only legal defence to a strict liability offence is mistake of fact.
Sexual offences involving consent
Under section 14A, the defence of mistake of fact is not available in relation to sexual offences involving a lack of consent if the accused:
- Was in a state of self-induced intoxication and would not have made the mistake if sober;
- Was reckless as to whether or not the complainant consented;
- Did not take reasonable steps to ascertain whether the complainant was consenting.
Sexual offences involving children under 17
Under section 14B, the defence of mistake of fact is not available in relation to child sex offences involving a child under 13 where the accused believed the child to be over 17. The defence is available in relation to a child sex offence where the child was aged between 13 and 17 and the accused believed them to be over 17 if:
- The accused took all reasonable steps to find out the age of the person;
- The accused was not in a state of self-induced intoxication (where the mistake would not have been made if they were sober).
Strict liability vs absolute liability
Under the legislation, some offences are designated to be absolute liability offences. These offences do not require the accused to have known that their conduct was wrongful, but only to have performed the conduct. The defence of mistake of fact is not available in relation to an absolute liability offence. The following offences have been held to involve absolute liability:
- Owning a dog dangerously out of control (R v Bezzina 1994);
- Selling a lottery ticket to a person under 16 (Harrow London Borough Council v Shah 2000);
- Importing hydrofluorocarbons without a licence (Selectrix Pty Ltd V Humphrys 2001).
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