Official Inducement


Incorrect Advice by Public Employees and “Official Inducement”” as a Criminal Defence

There is a whole range of circumstances where a person may seek out and be given advice by public officials, be they local council employees, police officers, or other government employees. From time to time this advice, whilst given in good faith, may in fact be legally inaccurate or incomplete.

For example, a town planner at a local council might mistakenly tell a resident that they are entitled to make modifications to their home without first obtaining development consent or other formal approval. Another situation might be where a customer service officer at Centrelink incorrectly explains an individual’s specific reporting obligations.

In acting directly in response to such advice from a government official, if a person unknowingly commits a criminal offence, it only seems fair to expect that their good faith reliance on the advice would be a complete defence to any criminal charges that are subsequently brought against that person.

Unfortunately, this is not the case in New South Wales, as confirmed in the recent decision of Environment Protection Authority v Unomedical Pty Limited (No 3) [2010] NSWLEC 198. Following on from the High Court of Australia’s judgment in Ostrowski v Palmer [2004] HCA 30, this decision of the Land and Environment Court of NSW confirms that courts will take a very strict approach and that because such an error falls into the category of ‘mistake of law’ it cannot provide a defence.

Whilst acknowledging, “the presumption of regularity that official acts are presumed to have been done rightly and regularly” and its potential application in criminal proceedings, Justice Pepper was not prepared to follow a number of Canadian cases where officially induced error of law has been recognised as a valid defence .

If you’re facing a situation where you believe you have been given some incorrect advice from a public official and are concerned about possible further action, it is important to seek specialist legal assistance as soon as possible so that discussions can occur with the relevant authorities prior to possible criminal charges being brought. Contact the expert team at Armstrong Legal to make an appointment.

If you’ve been charged with an offence in circumstances where you believe you have acted in good faith and relying on advice given to you, depending on the circumstances of the particular offence, there may be strong grounds to argue that the Court should dismiss your matter pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. The Courts have recognized that, whilst not amounting to a complete defence, circumstances of official inducement are relevant considerations in determining the appropriate sentence and provide a basis for leniency (see for example, Environment Protection Authority v Fletcher (2001) 114 LGERA 187).

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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