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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.

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