Honest and Reasonable Mistake Of Fact
The defence of “Honest and Reasonable Mistake” is only available for strict liability offences. A strict liability offence is an offence that does not require a fault element (intention, knowledge or recklessness on behalf of the accused). Further, the prosecution does not need to prove that the accused intended to commit the alleged offence.
Having an honest and reasonable mistake as to a set of facts can make a defendant’s act innocent, providing vindication for doing what would otherwise be a criminal offence. The defence has three elements:
- The mistake must be honest (subjective);
- The mistake must be reasonable (objective); and
- The mistake must be as to fact and not law.
An honest and reasonable mistake can be used to argue that an accused did not realise or know that what they were doing was unlawful because of the mistaken fact. Many charges can be defended using this defence, most commonly it is used to defend driving whilst disqualified or driving whilst suspended charges. It is also often used to defend the charge of ‘Dealing with Property Suspected of Being the Proceeds of Crime’ (section 195 of the Crimes Act 1958 (Vic)).
For this defence to be successful, both components, ‘honest’ and ‘reasonable’ must be established. Commonly only the first element is met. Any consideration of reasonableness should be made in consultation with an experienced criminal lawyer prior to proceeding to Court.
Strict liability offences are those that do not require proof of fault or intent per se’. An example is driving whilst suspended. For police to prosecute this offence they only need to prove that the accused person was driving on a road during a period in which their driver’s licence was suspended. Not that they intended to drive whilst suspended. In this example the accused person might claim that they were not notified of their suspension by VicRoads and therefore are not at fault. This would form the accused’s honest belief. There however would then need to be an assessment of whether the belief held by the accused was reasonable. The accused would raise the evidentiary burden and it would then be incumbent upon the prosecution to establish beyond a reasonable doubt that the belief was either not honest or reasonable or both. If the accused did not raise the defence then it would not be incumbent on the prosecution to provide the element of intention.
The burden of establishing honest and reasonable mistake
As explained in He Kaw Teh v The Queen [1985),the evidentiary burden is on the accused to establish the defence of Honest and Reasonable Mistake, but once raised the onus shifts to the Prosecution to show that no such belief existed. The prosecution must prove this beyond a reasonable doubt.
The case on point in relation to the defence of honest and reasonable mistake of fact is Proudman V Dayman .
Is the belief honest?
The Proudman defence requires a positive belief to have been formed by the accused, not merely ignorance.
In the case of Knight it was established that if the trier of fact finds that an inference or hypothesis consistent with innocence is open on the evidence, they must give the accused the benefit of the doubt in relation to that inference, this applies to the consideration of what might be an honest belief (Knight v R (1992) 175 CLR 495).
If the belief reasonable?
The accused must expressly turn his or her mind to a particular fact and make an honest mistake which was reasonable in the circumstances— as opposed to not considering the matter at all – He Kaw Teh v The Queen .
The leading case on reasonableness is found in the case of Mei Ying Su and Others v Australian Fisheries Management Authority and Another (no2) (2008) at paragraph 106 where the court stated
a) It does not involve the hypothetical ordinary or reasonable person test.
b) It requires that the belief be that of the accused
c) It requires that the accused’s belief be objectively reasonable, that is, rational, based on reason, or capable of sustaining belief and
d) It requires the objective reasonableness of the accused’s belief to be assessed by reference to the subjective circumstances in which the accused was placed, including the accused personal attributes and the information available to him at the time.
When the accused successfully shows that s/he acted due to a mistaken belief the prosecutions must show beyond a reasonable doubt that no reasonable belief was held. If the prosecution cannot do this the accused will be acquitted.
Application of the Defence
As explained, the defence is only available in relation to strict liability offences. Circumstances in which an accused could utilise this defence include:
- Driving whilst authorisation suspended
- Indecent act, mistake as to age
- Dealing with Property Suspected of Being the Proceeds of Crime
- Failing to stop/render assistance/report to police (that is mistake as to an accident occurring)
Consider the following example; an accused did not know they were suspended from driving because they did not receive a letter notifying them of this from VicRoads. The notification was delivered to their former address despite having updated their address with VicRoads. This person in these circumstances may be able to establish the defence of honest and reasonable mistake. If on the other hand the person had not updated their address then this may be harder to defend, as the Court may find this not to be reasonable, i.e. how do you expect to receive a notice when you have not updated your address.
If you have been charged with any criminal offending, do not try and represent yourself, you may have a defence open to you, the only way to determine this will be to make an appointment with one of our experienced criminal solicitors.