The legal defence of honest and reasonable mistake of fact can be raised where you had an honest but mistaken belief that certain facts existed, your belief was reasonable and had the facts you believed existed, you would not be guilty of the offence charged.
The defence does not excuse ignorance of the law – rather, it relates to your understanding of the existence of certain facts relating to your case.
You will only be able to raise the defence of honest and reasonable mistake of fact in relation to ‘strict liability’ offences.
Strict liability offences are offences which do not require proof that you intended to commit the crime.
In order to successfully raise the defence of honest and reasonable mistake of fact, you must present evidence to prove on the balance of probabilities (that is, more than 50%) that:
1. The mistaken belief was held honestly
You must be able to prove that you honestly and genuinely held the belief regarding facts that impacted on the essential elements of the offence. For example, if you were charged with driving while suspended or disqualified but you were not aware of this fact because the RMS had informed you that you still held a valid license.
2. The belief was ‘reasonable’
Whether or not your belief was ‘reasonable’ will be judged according to whether an ordinary person in your circumstances would have held the belief. The court will consider any steps that you took to ascertain your belief – for example, where you’ve been charged with a sexual offence, the court will consider any steps that you took to clarify if consent was given.
3. The belief related to a particular fact, rather than the law
The belief must be about the facts related to the offence – you will not be able to simply argue that you were not aware that what you were doing was illegal.
You must also prove that if the facts were true (as you believed), you would not be committing an offence.
For example, where you are charged with a drug offence, but you mistakenly believed that the drug was something else that was legal – for example, where you were given a marijuana plant and informed that it was some other legal plant.
If the defence is raised successfully, you will be found ‘not guilty’ of the strict liability offence.