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Defence of Honest and Reasonable Mistake of Fact

The defence of honest and reasonable mistake or belief may apply where a person conducts themselves in a certain way, and does so in an honest belief that they are entitled to do so. In these circumstances, that person is entitled to raise the defence of honest and reasonable mistake. The act would not have been committed with a guilty mind.

The defence of honest and reasonable mistake of fact can only be raised in cases of strict liability. In these types of cases, there is no requirement for the prosecution to prove that an accused intended the result to occur.

What the law says:

The law in relation to Commonwealth offences can be found in the Criminal Code Act 1995, section 9.1- 9.4.

It says that:

A person is not criminally responsible for an offence of if:

  • At the time of committing the act, the person is under a mistaken belief about, or is ignorant of, facts; and
  • The existence of that mistaken belief or ignorance negates the fault element, or was reasonably held.

In cases of strict liability, a person is not criminally responsible for an offence if:

  • At the time the offence was committed, the person considered whether or not facts existed, and was under a mistaken, but reasonable belief about those facts; and
  • Had those facts existed, the conduct would not have constituted an offence.
In relation to Victorian legislation there is a defence of honest and reasonable mistake that arise from the case law and has essentially the same characteristics as the Commonwealth legislation.

Who has to prove what?

A defendant who raises the defence of honest and reasonable mistake or belief, carries the evidentiary onus prove it. This means, that the defendant need to produce evidence to support the basis for the defence. The prosecution, are then required to prove that no such belief was held, and/or that it was held unreasonably.

An example of how this defence could be applied, is in the situation where a person is charged with driving whilst their authorisation to drive is suspended. If the person was driving because they were under the belief that their licence was valid, and that belief was based on a letter which had been sent to them from VIC Roads by mistake, or in error, which indicated that their licence was valid, then that person could be entitled to raise the defence of honest and reasonable mistake. The defendant must be able to show both aspects of this defence, that is, they must be able to show that their actions were both, honest and reasonable in the circumstances.

People often find it difficult to overcome both aspects, and tend to fall short in relation to the reasonableness of their assertion. If you have been charged, and think you might have a defence of honest and reasonable mistake, you should speak to a lawyer for some advise.