HONEST AND REASONABLE MISTAKE OF FACT

The defence of honest and reasonable mistake of fact is a complete defence that can be raised when defending an offence that is ‘strict liability’. 

How Are Offences Proven?

In order for a person to be found guilty of any offence, the Prosecution must prove every element of the offence to the standard of beyond a reasonable doubt. 

The ‘elements’ of an offence are the ingredients that make up the offence. All offences contain physical elements (such as driving a motor vehicle, hitting or slapping another person, or being in possession of a drug) and mental or ‘fault’ elements (such as intent, recklessness or knowledge). When the Prosecution is unable to prove each and every element of the offence to the standard of beyond a reasonable doubt, the person charged should be found not guilty.

Even if the Prosecution can satisfy all the elements of an offence to the standard of beyond reasonable doubt, the person charged may raise a defence to the charge which, if accepted, means they are not criminally liable and therefore not guilty of the offence. 

What is a ‘Strict Liability’ Offence?

Where an offence does not have a prescribed fault element it is known as a ‘strict liability’ offence. With strict liability offences, the Prosecution only needs to prove a person committed the physical elements or the acts of the offence for a person to be found guilty. Most traffic offences under the Road Transport Act 2013 and Road Rules 2014 are strict liability offences. 

Just because an offence is a ‘strict liability’, this does not exclude the person charged from being able to raise other defences such as self-defence, duress or necessity to the charge. 

If a person is charged with an offence of ‘speeding’ pursuant to Section 20 of the Road Rules 2014, the Prosecution do not need to prove any fault elements for the person to be found guilty. This means that the Prosecution is not required to prove the speeding was intentional nor that the person was reckless to the speed travelled. The Prosecution would only need to prove the physical elements of the offence for the person to be found guilty, being that the person drove a vehicle, on a road or road related area, in excess of the speed limit applying to that length of road. 

Defence of Honest and Reasonable Mistake of Fact:

Where a person holds an honest and reasonable belief of a mistaken fact when committing an offence, they may be able to rely on the defence of honest and reasonable mistake of fact. If the Court accepts that the person charged was under an honest and reasonable mistake of fact when committing the offence, they should be found not guilty of the offence. 

The Test:

The defence of honest and reasonable mistake of fact means that a person is not criminally responsible for a strict liability offence if:

1. At or before the time of the offending conduct, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and 
2. Had those facts existed, the conduct would not have constituted an offence. 

Mistake of Fact v Mistake of Law:

The defence of honest and reasonable mistake of fact only applies to a question of fact, not a question of law. Ignorance of the law is no defence. 

Questions of fact focus on what occurred, the truth or existence of events, circumstances and evidence. Questions of law involve the interpretation, application and existence of legal principles and statutes. 

Some examples of questions of fact in a ‘speeding’ offence include: the identity of the person who drove the vehicle, the road or street the vehicle was driven on, the speed shown on the LIDAR device and the speed shown on the vehicle speedometer when driving. 

Onus to Raise Honest and Reasonable Mistake of Fact:

If a Defendant wants to rely on an honest and reasonable mistake of fact defence, they bear the onus of raising this defence at Court and are responsible to convince the Court on the balance of probabilities that they did honestly and reasonably believe in a mistaken fact. 

Once the defence of honest and reasonable mistake of fact has been raised by the Defendant at Court, the onus shifts to the Prosecution to disprove that the Defendant honestly and reasonably believed in a mistaken fact to the standard of beyond a reasonable doubt for the Defendant to be found guilty. 

If you have been charged with an offence and want to defend your matter based on an honest and reasonable mistake of fact, we recommend you speak with one of our lawyers as soon as possible.