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Honest and reasonable mistake of fact can be relied on as a defence only in relation to strict liability offences. Strict liability offences do not require the accused to have intended to commit the crime in order to be found guilty, but only for the court to be satisfied that the accused committed the act. The only legal defence available to a person charged with a strict liability offence is the defence of honest and reasonable mistake of fact. This defence will succeed if the accused can show that they held a positive belief in a state of affairs that would render their act innocent if it had existed. This article outlines the defence of honest and reasonable mistake in Brisbane and the rest of Queensland.
Onus of proof
If a defendant seeks to rely on the defence of honest and reasonable mistake of fact, the defence must raise this. However, once the defence has been raised, the prosecution bears the onus of proving that the accused did not hold such a belief.
When will the defence of honest and reasonable mistake succeed?
The defence of honest and reasonable mistake in Brisbane or elsewhere in Queensland may succeed in the following situations:
- Where a person is charged with having sexual contact with a child under 16 but had an honest and reasonable but mistaken belief that the alleged victim was 16 or older;
- Where a person is charged with a tax fraud offence but can show that they honestly and reasonably believed that the information they submitted to the tax office was correct;
- Where a person is charged with exceeding the speed limit but can show that the speedometer in their vehicle was faulty and they honestly and reasonably believed they were travelling under the speed limit.
Thomas v The King
In the 1937 decision of Thomas v The King, the High Court held that it was a defence to bigamy that the accused believed “bona fide and on reasonable grounds” that he was not married but was single and entitled to marry. The basis of the accused’s belief was that his marriage to his “former wife” had not been valid because her decree of divorce from her previous husband had not been made absolute meaning that she was still a married woman when they married.
In upholding the defence of honest and reasonable mistake, Latham CJ 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
It is important to remember that a person who commits a criminal offence because of a mistake about the law (rather than a mistake of fact) does not have a defence. The defence of honest and reasonable but mistaken belief is arguable only in relation to matters of fact. If a person commits an act thinking (wrongly) that that they are doing is not a criminal offence, they are guilty of the offence regardless of their mistaken belief.
If you require legal advice or representation in relation to honest and reasonable mistake in Brisbane or in any other legal matter, please contact Go To Court Lawyers.
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