Understanding Criminal Law: Honest and Reasonable Mistake of Fact in the ACT

In any given situation, an offender will want to be given the chance to plead their case and explain themselves. They may argue that the situation was only borne out of an honest and reasonable mistake of fact.



We have previously discussed the elements of absolute liability offence and strict liability offence. The latter type of offence allows an accused person to raise the defence of honest and reasonable mistake of fact. If you believe you have an honest and reasonable mistake of fact to your charge, this guide seeks to help you understand exactly what needs to be done—and what your strategic defence case needs to succeed. Let’s begin!

According to the Criminal Code 2002 at Section 26, the defence of honest and reasonable mistake of fact can apply under charges of a strict liability offence. Section 26 provides that a person is not criminally responsible for an offence that has a physical element for which there is no fault element if—



1. when carrying out the conduct making up the physical element, the person considered whether or not facts existed, and was under a mistaken but reasonable belief about the facts; and
2. had the facts existed, the conduct would not have been an offence.

When the Court considers whether a person considered whether or not facts existed when carrying out the conduct, a person may be taken to have considered whether or not facts existed when carrying out conduct if—

1. the person had considered, on a previous occasion, whether the facts existed in the circumstances surrounding that occasion; and
2. the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as the circumstances surrounding the previous occasion.

In essence, the person charged with the offence must have a honestly and reasonably believed that at the time, facts existed which would mean that their conduct was not criminal. For example, if the person honestly and reasonably believed that their licence was not suspended, they may have a defence to a driving whilst suspended charge.

As previously discussed, the requirement of leading evidence of an honest and reasonable mistake of fact does fall on the shoulders of the accused. They must lead evidence which grounds their mistaken belief regarding the facts.

There are three factors required to establish the defence and they are as follows:



• The error committed must be honest
• The person in question must prove that they have committed the mistake under the belief of false facts
• The basis of the mistake must be reasonable in the circumstances

Assessing the reasonableness of the error may be difficult, so the court puts themselves in the shoes of the ordinary person. Were they in the same situation, would an ordinary person have acted the same way? In other words, the mistake must always relate to the fact and never the law.

The accused must never argue an honest and reasonable mistake under the guise of not knowing that an act was illegal. It is not a defence to say that you did not know your conduct was illegal. Ignorance of the law is no defence.

The defence of honest and reasonable mistake of fact may be enough to help you defend a strictly liability offence. The law and how it applies to your situation can be difficult to assess and interpret, so never hesitate to seek the help and advice of the professionals.

For the best criminal lawyers in Canberra, Andrew Byrnes Law Group is the best place to call. We offer you high quality, tailored legal representation that costs you no more than it needs to. We plan strategically like no other, all in the name of helping you win your case. Our team is always on the pursuit of justice and if you have been accused of a crime, our team of lawyers will be more than happy to represent you. Get in touch with us today!