Honest and Reasonable Mistake of Fact
The defence of Honest and Reasonable Mistake of Fact can be raised for strict liability offences.
A strict liability offence is an offence where the accused is criminally liable even in the absence of criminal intent. The accused bears the burden of proof on the balance of probabilities to demonstrate that they acted with the genuine belief that they did not know they were committing a crime. If established, an accused is deemed innocent and can be acquitted.
If you need legal advice or an experienced criminal lawyer to represent your case in court, please contact our team today.
To determine whether this belief was honestly held is a subjective test. To determine whether it was a reasonable belief in the circumstances held is an objective test.
The three elements that must be proven to establish Honest and Reasonable Mistake of Fact are:
1. The mistake was honest
The accused must prove that the mistaken belief they held was honest and genuine.
For example, if you have been charged with driving whilst your licence was suspended, an honest and reasonable mistake of fact could include that you were not aware your licence was suspended as you had not received notification from the Roads and Maritime Services.
2. The belief must have been reasonable in the circumstances
The accused must prove that an ordinary person in the same circumstance would have held the same belief and acted in the same way.
This could include any steps that you took to ascertain your belief.
For example, if you have been charged with a sexual offence, the court would consider steps taken to clarify consent was provided.
3. The mistake related to fact rather than law
This is one of the most important and distinguishable points.
This requires an accused to have believed based on the fact that they were doing the right thing, not based on law.
It is insufficient for an accused to argue that they did not know what they were doing was a crime, as Honest and Reasonable Mistake of Fact does not apply to this.
Instead, the accused must prove that their conduct in the circumstances which they believed to be true, was not illegal.
For example, if someone was charged with exceeding the speed limit and later found out their speedometer was faulty, the accused could argue that they held an honest belief and mistake of fact that they were driving the required speed limit. The mistake of fact is that they assumed the speedometer was accurate, not that they didn’t know speeding was an offence.
Another example includes if someone was charged with possession of an illicit drug, but mistakenly believed it was a substance that was not illegal. For example, if someone obtained a marijuana plant, if they held the honest and reasonable belief that they had a different legal plant, they could be found ‘not guilty’. This is because the accused proved that in the circumstance that they knew it was marijuana, they would not have obtained the plant and committed an offence.