Defending Honest Mistake of Fact

Honest and reasonable mistake of fact can only be raised in relation to ‘strict liability’ offences, such as:


·        Speeding;

·        Drink driving;

·        Drug driving.

The states the following in respect of a honest and reasonable mistake of fact defence;


9.2 Mistake of fact (strict liability)


(1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:


  • (a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
  • (b) had those facts existed, the conduct would not have constituted an offence.

(2) A person may be regarded as having considered whether or not facts existed if:


  • (a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
  • (b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.

The defence of honest and reasonable belief or mistake is that you honestly believed you were acting lawfully when you committed the offence, and that you would not have acted in that way if you knew what you were doing was against the law. Ignorance of the law, no matter how reasonable or understandable in the circumstances, is no excuse.


For this defence to be successful it must be raised on the balance of probabilities.

Honest and Reasonable Mistake of Fact NSW

In NSW, to raise this defence, a criteria must be met. This defence has three elements to be proved in court:


  • That the mistake was honest;
  • That the belief forming the basis of that mistake must have been a reasonable belief to have held in the circumstances; and
  • That the mistake is one relating to fact and not the law.

Generally, showing the Court a genuine belief is straightforward however difficult. Unless there is proof of disbelief, it usually involves the accused person giving evidence in court.


Establishing reasonable mistake of fact is difficult. Courts decide if belief is reasonable based on source, reliance and enquiries. They assess if it was fair, rational or logical to hold belief at the time. A person may have a mistaken belief in a state of fact, but this may not be reasonable in the circumstance.


Misunderstanding that one must be wrong about a fact, not a law, is frequent. Ignorance of illegality or unawareness of an act’s implications do not excuse. To be exonerated, one must demonstrate to the court that their belief in a fact, had it been true, would have made their actions not unlawful. Simply speaking, a mistake of the law is not a defence.


In some circumstances you may say, for example you RMS must only demonstrate that the letter was sent to the licence holder’s registered address. Drivers are responsible for keeping their details current, thus merely shifting residences is not enough. The defendant would need to present evidence to demonstrate mail theft, a temporary stay at an alternate address, or that the letter was unclear in some fashion.


An example of when honest and reasonable mistake of fact may be raised is being charged with driving while disqualified but you were not aware that you were disqualified because the RMS did not inform you. The belief was reasonable because you were not notified about your demerit points or the likelihood of a disqualification. The fact you have a belief about this is that you were driving with a valid licence at the time of the offence. 


Accordingly, is mistake of fact a defense in criminal law? The answer is yes. If you have been charged with a strict liability offence, you speak to a criminal defence lawyer in Sydney.

If the police have charged you or a loved one, you must attend court. Appearing in court for a criminal charge is usually daunting. Let us help you make the process easier. Here are 10 reasons to choose our team of criminal lawyers from Lyons Law Group;


Result-focused criminal lawyers 


Our team will work to achieve the best result for you in the shortest time possible. However, we do aim to provide quality over quantity service to you. Our criminal lawyers appear in all criminal and traffic matters, including trials, sentencing, bail applications, and apprehended violence orders. We are a result-focused firm of lawyers.

At Lyons Law, we do not make any unrealistic promises for results. You will be advised on the most realistic results achievable in your case, including acquittals of all charges against you. Nevertheless, you can be sure that our team will work extremely hard to achieve the best possible outcome for you.


Proven Track Record


Our experienced defence lawyers are passionate about representing their clients and achieving the best outcome. Lyons Law is a team of solicitors who are dedicated, and with our support staff, you can be confident of the highest quality of legal representation. We have an exceptional track record of results. We provide our outstanding client service at an affordable rate for our clients.


Fixed Fees


We always let our clients know how much their cases will cost from the beginning. This makes it easier for them to decide whether or not they want to proceed with the case. Not only do we offer fixed fees for many types of criminal cases and services, but also free first phone consultations. In addition, our firm offers fixed fees applicable to a wide range of Local Court cases such as drink driving, fraud, drug possession, assault, and AVOs.


Free First Conference


For all of those individuals who are going to court, we offer a free first 15-minute phone conference with one of our senior criminal defence lawyer. It is best you email our office all your relevant documents before a conference so criminal lawyers can provide the best advice within that time frame.


Highly experienced criminal defence lawyer


Lyons Law Group is a highly experienced team of criminal lawyers. Our team is led by Mohammad Khan, who is one of the best criminal lawyers in Sydney. He has represented clients in some of Australia’s most high-profile cases and was under the direct tutelage of Australia’s leading criminal lawyer Adam Houda.


Moreover, our team has worked and successfully represented clients on highly complex trials and sentences in NSW.


Work closely with Australia’s leading criminal law barrister


We work closely with some of Australia’s leading criminal law barristers. Barristers are usually instructed in more serious matters, and their experience and input can be invaluable to your case. The barristers we regularly instruct range from Queen’s counsels, Senior counsels and highly experienced junior-senior counsels.


Specialist for District and Supreme Court trials


Our team of sydney criminal lawyers have worked on numerous District and Supreme Court trials in NSW. We have worked on extremely complex criminal law trials that require impeccable preparation and understanding of the law.


Specialist for bail applications in NSW


Lyons Law Group is a highly experienced team of bail lawyers. We have regularly obtained bail for clients for extremely serious charges that carry life sentences. For types of charges, bail is usually denied by a Court.


In house Experts


Our criminal lawyers have in-house investigators with decades of law enforcement experience and assist our team with process service, background checks, integrity testing, investigations, surveillance, and bug detection.


For the preparation of jury trials and defended hearings, these services can be utilised on behalf of our client to achieve the best result.


Appearance at all Courts in NSW


From Broken Hill to Waverly, our criminal lawyers appear in all courts throughout New South Wales.


If you wish to contact us or book your first free 15-minute phone conference, contact us on 0404479096 or send us an email at info@lyonslaw.com.au.

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