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The defence of honest and reasonable mistake of fact can be relied on only in relation to strict liability offences. Strict liability offences are offences that do not require the prosecution to prove that the accused intended to commit the crime. They only require the court to be satisfied beyond a reasonable doubt that the person committed the act. A person who is charged with a strict liability offence can rely on the defence of honest and reasonable mistake in Canberra and elsewhere in the ACT. It is the only defence that is available to them.
The defence of honest and reasonable mistake will succeed if the accused can show that they held a positive belief in a factual situation that, had it existed, would have rendered their act innocent.
Onus of proof for honest and reasonable mistake in Canberra
If an accused seeks to rely on honest and reasonable mistake of fact as a defence, the accused must raise the defence. Once the defence has been raised, the prosecution has the onus of proving that no such belief was held by the defendant.
When may honest and reasonable mistake succeed?
The defence of honest and reasonable mistake in Canberra may be successfully argued where:
- A person charged with having sexual contact with a child below the age of 16 held an honest and reasonable but mistaken belief that the alleged victim was 16 or older;
- A person charged with tax fraud can demonstrate that they had an honest and reasonable belief that the incorrect information they submitted to the ATO was correct;
- A person is charged with a speeding offence but can show that their speedometer was faulty and they had an honest and reasonable belief they were travelling below the speed limit.
- A person is charged with breaching a Domestic Violence Order (DVO) but approached the protected person in a public place because they mistook them for someone else.
Thomas v The King
In the 1937 High Court judgment of Thomas v The King, the court considered the defence of honest and reasonable mistaken belief. In that case, it was held that it was a defence to a bigamy charge that the accused had a belief held “bona fide and on reasonable grounds” that he was unmarried and therefore was entitled to marry.
The basis for the accused’s belief was that his former marriage had not been valid because his wife’s decree of divorce had not been made absolute so that she was still married when he married her.
In upholding the defence of honest and reasonable mistake, Chief Justice Latham said:
“The belief was that a decree absolute had not been made by the Supreme Court of Victoria. Whether or not such a decree had been made was a question of fact. If no decree absolute had been made, the marriage of the accused’s former wife would not have been dissolved and therefore, she would still have been a married woman when she married the accused. Thus, her marriage to the accused would have been invalid, and he would not have been a married person when he went through the ceremony of marriage with Miss Deed. Thus, if his belief as to the matter of fact mentioned had been true, he would not have been guilty of the offence charged.”
Mistake of fact vs mistake of law
A person who commits a criminal offence because of a mistake of law does not have a valid defence to any charge. The defence of honest and reasonable mistake is arguable only where the accused has made a mistake of fact. If a person commits an act and mistakenly thinks that it is not a criminal offence, they are nonetheless guilty of the offence. Hence the common saying that ignorance of the law is no defence.
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