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Honest and
Mistake of

Honest and reasonable mistake of fact applies is a defence available to offences where the prosecution is not required to prove that an accused intended to commit the crime in order to make out a case (strict liability offences).

An honest and reasonable mistake of fact occurs where an Accused person has committed an offence labouring under an honest belief that is reasonable but mistaken and as a consequence of that mistake commits a criminal offence.

The rationale behind the defence is that if the honest and reasonable mistake of fact as to the circumstances actually existed, then no criminal offence was committed. As such, the Accused person is not liable for their offending. A common example of when honest and reasonable mistake of fact is raised is in circumstances where someone was unaware that they were suspended from driving and as a consequence drove whilst suspended.

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. For example, if you were charged with driving while disqualified but you were not aware that you were disqualified 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.

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Invictus Legal | Sydney Criminal & Traffic Defence Lawyers



Level 35, Tower One, International Towers,

100 Barangaroo Avenue,

Sydney, 2000, NSW, Australia


Tel: 02 8046 7634

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