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Ignorance is not a defence under the law, but there are some situations where the law contemplates a person may make a genuine mistake and should therefore not be held criminally responsible for their actions. The criminal defence of “honest and reasonable mistake of fact” is a defence which applies to strict liability offences. Offences of strict liability do not require proof of fault, negligence or criminal intent. Examples of strict liability offences include speeding offences, driving while disqualified, drinking driving, driving under the influence of drugs, and driving while suspended.

The defence of honest and reasonable mistake of fact is based on the idea that if a person honestly and reasonably made a misake as to a particular state of affairs that existed, then no criminal offence was committed. Consequently, the accused is not held liable for the offence. Proving the availability of the defence requires a subjective and objective test.

The test as to whether the belief you held was honestly held is a subjective one, that is, whether from your perception and understanding of your surrounding circumstances, you genuinely held a mistaken belief. The test as to whether the belief was reasonable in the circumstances is an objective test based on what a reasonable person in your situation would do in the circumstances. The question to be asked and answered for the objective test is “whether an ordinary person in the same circumstances as yours would have held the same belief or acted in the same way.”

As mentioned above, ignorance of the law does not qualify as evidence to support this offence. You will not be able to an argue honest and reasonable mistake based on the fact that you did not know that what you were doing was illegal. The belief you held must relate to the facts of the offence.

The leading case addressing the defence of honest and reasonable mistake is Proudman v Dayman (1941) HCA 28. This case provides that a person accused of a strict liability offence would be found “not guilty” he or she held an honest and reasonable belief (although a mistaken belief) in a state of facts which, if they existed, would have made the accused person’s act innocent.

If you have been, or know or someone who has been charged with a strict liability offence, it is important to obtain legal advice about the availability of the criminal defence of honest and reasonable mistake. Should you wish to discuss your options, please contact KF Lawyers for a free initial consultation.

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