Mistake Mistake of Law v Mistake of Fact Mistake as to ...
Mistake Mistake of Law v Mistake of Fact Mistake as to observable facts → mistake of fact o Belief that something had in fact happened: R v Tolson (relied on belief that first wife had died mistake of fact) o Mistake as to whether a certain legal declaration has in fact been made: R v Thomas (bigamy—W1 divorced previous husband to marry T—T believed decree nisi=divorce had not been made absolute & marriage therefore void—married W2 question of fact ← mistake as to whether the decree nisi had been made absolute = fact || mistake of law if eg mistaken as to effect of decree nisi) o Mistake that something has in fact been authorised: Loveday v Ayre (treatment of timber in contravention of regulations—told that had been approved mistake of fact || mistake of law if no mistake as to declaration but knew what the substance was and thought was lawful) Mistake as to law or legal conclusion drawn from observable facts → mistake of law o Mistake as to the content of the law: R v Kennedy (believed that earlier marriage was not married as marriage with first cousin mistake of law) o Mistaken judgement as to legal conclusion from known facts: Sancoff v Holford; Ex parte Holford (possession of obscene books—aware of contents but did not believe to be obscene mistake of law || mistake of fact if eg thought the books contained articles on Electrical Engineering) o Mistake of law based on information mistaken information provided: Ostrowski v Palmer (2004) per McHugh J (lobster fisherman—fishing in prohibited zone—relied on copy of regulations provided by Fisheries WA—were outdated mistake of law ↔ mistake of fact if eg thought that was in a different area due to navigational error ||AG made undertaking to remit costs & penalties—but still recorded conviction—judges scathing of prosecution) Information mistakenly interpreted: Iannella v French (increased rent contrary to regulations—read newspaper about expiry of related legislation—mistakenly thought it was the applicable legislation mistake of law (3:2)) o Mistake about effect of a document Mistake about interpretation: Pusey v Wagner; Ex parte Wagner (travelling stock without a permit—obtained permit in January, moved stock in August—question of interpretation of permit mistake of law || mistake of fact if eg thought the words of the permit said something else) Mistake about legal effect of a certain document: R v Sheehan [2001] (operating charter flight without appropriate clearance—mistake as to legal effect of Air Operators Certificate mistake of law || mistake of fact if eg thought was a different document) o Mistake about effectiveness of authorisation: Power v Huffa (loitering in a public place— illegal demonstration—called senator for permission to stay—mistake that senator had authority to allow them to stay mistake of law) BUT note if in relation to property → s22(3): R v Waine Keane JA at [30] (wilful damage to property—painting symbols on huts—told that had permission mistake that had consent of person believed to be owner → defence applied) Compound Mistake of Fact & Law → conflicting views o Mistake of fact: Thomas v R (HCA 1937) o Mistake of law: Bower v Huffa (SASC 1976) Andrew Trotter LWB239 Criminal Responsibility
Andrew Trotter LWB239 Criminal Responsibility
MISTAKE OF LAW: s22(1) Generally Ignorance of the law is no excuse—unless knowledge of the law an element of the offence: s22(1) (Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence) Rationale: Iannella v French (1968) per Windeyer J • Criminal law punishes wrong, rather than creating it – mala in se o Consistent with purposes of criminal law such as deterrence & retribution o Cannot allow criminals to rely on self-serving constructions of the law: Ostrowski v Palmer Callinan and Heydon JJ at [85] • Less convincing wrt government regulatory scheme offences: mala prohibita (eg drive on the left-hand side of the road—nothing inherently wrong about driving on the right): Ostrowski v Palmer Gleeson CJ & Kirby J at [2] Exceptions • Excuses—Onus on the defendant to raise some evidence, on R to negative BRD o reasonable doubt that the accused honestly believed he was entitled to do the act with respect to the property → must acquit: Pollard Claims of Right: s22(2) But a person is not criminally responsible, • as for an offence relating to property, for • an act done or omitted to be done by the person with respect to any property • in the exercise of an honest claim of right and • without intention to defraud. 1. An offence relating to property • “Relating to Property” Old narrow view—interference with another’s property rights: Pearce v Paskov (1968) (possession of undersized fish prohibition in the interests of natural environment—not interference with other person’s property → not ‘offence relating to property’ → no defence available) Current broader view—any act involving property: Walden v Hensler (1987) (Cf. Brennan J) (keeping fauna without a licence—aboriginal in possession of dead turkey for tucker & chick for pet—had permission to go hunting—did not know it was illegal to keep a turkey animal = property || Brennan J: only where infringing another person’s rights in property | Dawson J: s22(3) impliedly excluded by Fauna Act as general prohibition irrespective of property rights) • “Property”—has meaning in s1 of the Code—anything capable of being the subject of ownership: Stevenson v Yasso per McPherson JA at [99] o Includes animals: Walden v Hensler (1987) • Examples— o robbery o burglary o unlawful use of a motor vehicle o wilful damage to property: R v Waine (2005) (wilful damage to property—painting symbols on huts—told that had permission huts = property → defence applied) Andrew Trotter LWB239 Criminal Responsibility
o Unlawful possession of property: Stevenson v Yasso (2006) (commercial fishing apparatus—fishing net property)
Andrew Trotter LWB239 Criminal Responsibility
2. Act done in relation to property • Act— o bodily act of which the accused has control: Falconer o composite set of movements which constitute the elements of the offence but not the consequences of the acts: Murray • eg—killing bird, taking chick, taking car. 3. In the exercise of an honest claim of right • Need only be honest, not reasonable as under s24: Clarkson v Aspinall (1950); King v Bernhard (need not be reasonable or based in law or in fact) o BUT reasonableness may be taken into account in determining whether it was actually held: Clarkson v Aspinall (1950) o Honest—where honestly believes himself to be entitled to do what he is doing: Pollard per Gibbs J at 29 • Must be a claim of right in law, not in moral, religious or cultural code: Walden v Hensler (1987) per Gaudron J • Test—Such that if they had the rights they claimed, it would not breach law— o Consent that would have meant it was no offence → sufficient: R v Waine Keane JA at [30] (wilful damage to property—painting symbols on huts—told that had permission mistake that had consent of person believed to be owner → defence applied) o Rights that would not excuse from particular offence → not sufficient: Stevenson v Yasso (2006) (commercial fishing apparatus—fishing net—believed had rights under aboriginal tradition to catch fish did not change fact that possessing illegally || cf. if charged with fishing illegally) • Need not be ownership or another right recognised by law: R v Waine Keane JA at [23] (authorisation) • Must be a current right, not one that could have been or will be obtained: Pollard (unlawful use of MV—believed the owner would have consented if asked | would not swear that he believed he was entitled to use it no claim of right) 4. Without intent to defraud • Note claim of right must be honest • Defraud = to deprive another of property by deceit: Balcombe v de Simoni (1972) • Excuse not available if accused had intention to produce a consequence that is detrimental to a lawful right, interest, opportunity or advantage of a person: Peters v R (1998) Kirby J o Doing something honestly but using false documents: Hopley (1915) per Ridley J • May rely on defence even where resorts to unlawful means or force to obtain property under honest claim of right: Skivington v R (1968) (robbery & assault—honest claim of right that he was entitled to take the money from his wife—took it armed with a knife unlawful means → but still acquitted of robbery || guilty of assault); Noble v Police (1994) (forged cheque— honest claim to money acquitted) o BUT may be convicted of a different offence: Skivington v R (1968) (robbery—honest claim to money but convicted of assault) o May have evidentiary weight towards person not having an honest claim
Andrew Trotter LWB239 Criminal Responsibility
Prohibition not Published: s22(3) (rarely used) A person is not criminally responsible for an act or omission done or made in contravention of a statutory instrument if, • at the time of doing or making it, • the statutory instrument o was not known to the person and o had not been published or otherwise reasonably made available or known to the public or those persons likely to be affected by it. Defence if, at the time of offence— (s22(3)) 1. Person did not know of statutory instrument 2. Statutory instrument was not published or otherwise available •
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Publish = (s22(4)) o Ordinarily—gazette Fairly low threshold o Subordinate legislation—notification under s47 Statutory Instruments Act 1992 (rules, bylaws, guidelines, etc) Not sufficient that they knew there would be ‘trouble’—must know the substance of the offence & that could be convicted in court: Hogan v Sawyer per Thomas J (prisoners possessing money—knew they would be in trouble & that weren’t allowed | but not that an offence—statutory instrument not published or available defence applied)
Andrew Trotter LWB239 Criminal Responsibility
MISTAKE OF FACT: s24 A person who o does or omits to do an act o under an honest and reasonable, but mistaken, belief o in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist. Onus—excuse—the accused to raise some evidence | R to negative BRD: Sancoff v Holford Effect—Acquittal Elements 1. Does or omits to do some act … does or omits to do an act … Must do act or omission on which charged under the mistake: Larsen v GJ Coles 2. Honest and reasonable belief … under an honest and reasonable, but mistaken, belief … • Question of fact for the jury a. Honest—subjective ← Must be positively held—mere inadvertence insufficient— o Failure of due diligence systems: GJ Coles and Coy v Goldsworthy (selling cereal with rat poo in it—had some diligence procedures involved but no positive belief that the cereal was ok—just assumption by store manager that goods fit for sale → defence did not apply); o Failure to turn one’s mind to a certain consideration: Clough v Rosevar (practicing as a nurse without being registered—mail not forwarded to address merely inadvertent in failing to turn mind to renewal of registration); Bergin v Stack b. Reasonable—objective (that a reasonable person would make) o Consider attributes of the accused which are capable of affecting appreciation of the situation and over which the accused has no control: Aubertin Age, gender, ethnicity, and physical, intellectual or other disabilities Language difficulties: R v Mrzljak (rape—accused ESL relevant in determining whether reasonably thought the complainant was consenting) NOT Intoxication o if a reasonable person (not intoxicated) would make the same mistake, then s24 will still be available: Daniels (1990) o Reasonable if— based on own experience & community beliefs: Anderson v Nystrom (1941) (carriage of goods over >15miles without a licence—believed route was shorter than 15 miles— based on measuring on earlier trip & community beliefs defence applies) Based on common experience: Pacino (1998) (manslaughter—lady killed by dogs— belief that putting dogs together would not make them hunt in packs defence allowed to go to jury) o Not reasonable if— No system in place to check where reasonable apprehension that it will go wrong • automatic machine: Larsen v GJ Coles Co Ltd (1984) (selling falsely labelled meat —use-by date accidentally printed as date of packaging—mistake of automatic machine—no system in place to check defence n/a) • Fine margin of error: Timms v Darling Downs Cooperative Bacon Association Ltd (1988) (creating sausages of 3 inches would be above weight not reasonable) o If mistake of fact merely negativing an element of intent → need not be reasonable (below)
3. Mistake as to the state of things (↔ consequences) … mistaken belief in the existence of any state of things … • Not sufficient—If defendant knew of state of things but mistaken about consequences or effect: R v Gould and Barnes (abortion—deadly mixture used—knew what the mixture was | mistaken about safety of it mistake as to consequences not as to mixture || mistake of fact if eg thought the mixture was something it wasn’t) • Includes— o consent in rape offence is a ‘state of things’: R v Mrzljak; AG Ref No 1 of 1977 (1979) o Whether dogs have the propensity to attack and kill a person if unsupervised: Pacino Effect … is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist. Qualification—Remains criminally responsible as if what they believed had been true For example— • Assault of a police officer—believes to be a citizen → common assault • Possession of a prohibited substance (high penalty)—believed to be a low penalty substance → low penalty drug charge • Rape of 14 year old girl—genuine belief consent had been given → unlawful carnal knowledge of child under 16 Exclusions: s24(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject. • •
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Implied Exclusion If s24 would apply—then would be acting honestly—therefore dishonestly element would not be made out—therefore would not be convicted of offence anyway: Sitek (1988) Where legislation provides for its own defences: McPherson v Cairn (Transport Commission Act—sets up own defence provisions impliedly excludes operation of s24) Express Exclusion Against intellectually impaired persons—impliedly excluded—defence to show that— (s216(4)) o Reasonably believed not of unsound mind; or o Act did not constitute exploitation of person with impairment of mind Against children—no defence that person believed was older: s229 (Except as otherwise expressly stated, it is immaterial, in the case of any of the offences defined in this chapter committed with respect to a person under a specified age, that the accused person did not know that the person was under that age, or believed that the person was not under that age); o Provision for other defence—but increases onus of proof on the accused Drugs Misuse Act s9 (Possession): R v Claire (1974)
Mistake of Fact negativing an mental element of offence Andrew Trotter LWB239 Criminal Responsibility
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If an offence involves a mental element → mistake of fact may negate that mental element o murder—person honestly but unreasonably believes that gun not loaded—shoots & kills defence does not apply as not reasonable—but no intent to kill or do GBH → manslaughter only No requirement to be reasonable
Andrew Trotter LWB239 Criminal Responsibility
Andrew Trotter LWB239 Criminal Responsibility
MISTAKE OF LAW: s22(1) Generally Ignorance of the law is no excuse—unless knowledge of the law an element of the offence: s22(1) (Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence) Rationale: Iannella v French (1968) per Windeyer J • Criminal law punishes wrong, rather than creating it – mala in se o Consistent with purposes of criminal law such as deterrence & retribution o Cannot allow criminals to rely on self-serving constructions of the law: Ostrowski v Palmer Callinan and Heydon JJ at [85] • Less convincing wrt government regulatory scheme offences: mala prohibita (eg drive on the left-hand side of the road—nothing inherently wrong about driving on the right): Ostrowski v Palmer Gleeson CJ & Kirby J at [2] Exceptions • Excuses—Onus on the defendant to raise some evidence, on R to negative BRD o reasonable doubt that the accused honestly believed he was entitled to do the act with respect to the property → must acquit: Pollard Claims of Right: s22(2) But a person is not criminally responsible, • as for an offence relating to property, for • an act done or omitted to be done by the person with respect to any property • in the exercise of an honest claim of right and • without intention to defraud. 1. An offence relating to property • “Relating to Property” Old narrow view—interference with another’s property rights: Pearce v Paskov (1968) (possession of undersized fish prohibition in the interests of natural environment—not interference with other person’s property → not ‘offence relating to property’ → no defence available) Current broader view—any act involving property: Walden v Hensler (1987) (Cf. Brennan J) (keeping fauna without a licence—aboriginal in possession of dead turkey for tucker & chick for pet—had permission to go hunting—did not know it was illegal to keep a turkey animal = property || Brennan J: only where infringing another person’s rights in property | Dawson J: s22(3) impliedly excluded by Fauna Act as general prohibition irrespective of property rights) • “Property”—has meaning in s1 of the Code—anything capable of being the subject of ownership: Stevenson v Yasso per McPherson JA at [99] o Includes animals: Walden v Hensler (1987) • Examples— o robbery o burglary o unlawful use of a motor vehicle o wilful damage to property: R v Waine (2005) (wilful damage to property—painting symbols on huts—told that had permission huts = property → defence applied) Andrew Trotter LWB239 Criminal Responsibility
o Unlawful possession of property: Stevenson v Yasso (2006) (commercial fishing apparatus—fishing net property)
Andrew Trotter LWB239 Criminal Responsibility
2. Act done in relation to property • Act— o bodily act of which the accused has control: Falconer o composite set of movements which constitute the elements of the offence but not the consequences of the acts: Murray • eg—killing bird, taking chick, taking car. 3. In the exercise of an honest claim of right • Need only be honest, not reasonable as under s24: Clarkson v Aspinall (1950); King v Bernhard (need not be reasonable or based in law or in fact) o BUT reasonableness may be taken into account in determining whether it was actually held: Clarkson v Aspinall (1950) o Honest—where honestly believes himself to be entitled to do what he is doing: Pollard per Gibbs J at 29 • Must be a claim of right in law, not in moral, religious or cultural code: Walden v Hensler (1987) per Gaudron J • Test—Such that if they had the rights they claimed, it would not breach law— o Consent that would have meant it was no offence → sufficient: R v Waine Keane JA at [30] (wilful damage to property—painting symbols on huts—told that had permission mistake that had consent of person believed to be owner → defence applied) o Rights that would not excuse from particular offence → not sufficient: Stevenson v Yasso (2006) (commercial fishing apparatus—fishing net—believed had rights under aboriginal tradition to catch fish did not change fact that possessing illegally || cf. if charged with fishing illegally) • Need not be ownership or another right recognised by law: R v Waine Keane JA at [23] (authorisation) • Must be a current right, not one that could have been or will be obtained: Pollard (unlawful use of MV—believed the owner would have consented if asked | would not swear that he believed he was entitled to use it no claim of right) 4. Without intent to defraud • Note claim of right must be honest • Defraud = to deprive another of property by deceit: Balcombe v de Simoni (1972) • Excuse not available if accused had intention to produce a consequence that is detrimental to a lawful right, interest, opportunity or advantage of a person: Peters v R (1998) Kirby J o Doing something honestly but using false documents: Hopley (1915) per Ridley J • May rely on defence even where resorts to unlawful means or force to obtain property under honest claim of right: Skivington v R (1968) (robbery & assault—honest claim of right that he was entitled to take the money from his wife—took it armed with a knife unlawful means → but still acquitted of robbery || guilty of assault); Noble v Police (1994) (forged cheque— honest claim to money acquitted) o BUT may be convicted of a different offence: Skivington v R (1968) (robbery—honest claim to money but convicted of assault) o May have evidentiary weight towards person not having an honest claim
Andrew Trotter LWB239 Criminal Responsibility
Prohibition not Published: s22(3) (rarely used) A person is not criminally responsible for an act or omission done or made in contravention of a statutory instrument if, • at the time of doing or making it, • the statutory instrument o was not known to the person and o had not been published or otherwise reasonably made available or known to the public or those persons likely to be affected by it. Defence if, at the time of offence— (s22(3)) 1. Person did not know of statutory instrument 2. Statutory instrument was not published or otherwise available •
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Publish = (s22(4)) o Ordinarily—gazette Fairly low threshold o Subordinate legislation—notification under s47 Statutory Instruments Act 1992 (rules, bylaws, guidelines, etc) Not sufficient that they knew there would be ‘trouble’—must know the substance of the offence & that could be convicted in court: Hogan v Sawyer per Thomas J (prisoners possessing money—knew they would be in trouble & that weren’t allowed | but not that an offence—statutory instrument not published or available defence applied)
Andrew Trotter LWB239 Criminal Responsibility
MISTAKE OF FACT: s24 A person who o does or omits to do an act o under an honest and reasonable, but mistaken, belief o in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist. Onus—excuse—the accused to raise some evidence | R to negative BRD: Sancoff v Holford Effect—Acquittal Elements 1. Does or omits to do some act … does or omits to do an act … Must do act or omission on which charged under the mistake: Larsen v GJ Coles 2. Honest and reasonable belief … under an honest and reasonable, but mistaken, belief … • Question of fact for the jury a. Honest—subjective ← Must be positively held—mere inadvertence insufficient— o Failure of due diligence systems: GJ Coles and Coy v Goldsworthy (selling cereal with rat poo in it—had some diligence procedures involved but no positive belief that the cereal was ok—just assumption by store manager that goods fit for sale → defence did not apply); o Failure to turn one’s mind to a certain consideration: Clough v Rosevar (practicing as a nurse without being registered—mail not forwarded to address merely inadvertent in failing to turn mind to renewal of registration); Bergin v Stack b. Reasonable—objective (that a reasonable person would make) o Consider attributes of the accused which are capable of affecting appreciation of the situation and over which the accused has no control: Aubertin Age, gender, ethnicity, and physical, intellectual or other disabilities Language difficulties: R v Mrzljak (rape—accused ESL relevant in determining whether reasonably thought the complainant was consenting) NOT Intoxication o if a reasonable person (not intoxicated) would make the same mistake, then s24 will still be available: Daniels (1990) o Reasonable if— based on own experience & community beliefs: Anderson v Nystrom (1941) (carriage of goods over >15miles without a licence—believed route was shorter than 15 miles— based on measuring on earlier trip & community beliefs defence applies) Based on common experience: Pacino (1998) (manslaughter—lady killed by dogs— belief that putting dogs together would not make them hunt in packs defence allowed to go to jury) o Not reasonable if— No system in place to check where reasonable apprehension that it will go wrong • automatic machine: Larsen v GJ Coles Co Ltd (1984) (selling falsely labelled meat —use-by date accidentally printed as date of packaging—mistake of automatic machine—no system in place to check defence n/a) • Fine margin of error: Timms v Darling Downs Cooperative Bacon Association Ltd (1988) (creating sausages of 3 inches would be above weight not reasonable) o If mistake of fact merely negativing an element of intent → need not be reasonable (below)
3. Mistake as to the state of things (↔ consequences) … mistaken belief in the existence of any state of things … • Not sufficient—If defendant knew of state of things but mistaken about consequences or effect: R v Gould and Barnes (abortion—deadly mixture used—knew what the mixture was | mistaken about safety of it mistake as to consequences not as to mixture || mistake of fact if eg thought the mixture was something it wasn’t) • Includes— o consent in rape offence is a ‘state of things’: R v Mrzljak; AG Ref No 1 of 1977 (1979) o Whether dogs have the propensity to attack and kill a person if unsupervised: Pacino Effect … is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist. Qualification—Remains criminally responsible as if what they believed had been true For example— • Assault of a police officer—believes to be a citizen → common assault • Possession of a prohibited substance (high penalty)—believed to be a low penalty substance → low penalty drug charge • Rape of 14 year old girl—genuine belief consent had been given → unlawful carnal knowledge of child under 16 Exclusions: s24(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject. • •
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Implied Exclusion If s24 would apply—then would be acting honestly—therefore dishonestly element would not be made out—therefore would not be convicted of offence anyway: Sitek (1988) Where legislation provides for its own defences: McPherson v Cairn (Transport Commission Act—sets up own defence provisions impliedly excludes operation of s24) Express Exclusion Against intellectually impaired persons—impliedly excluded—defence to show that— (s216(4)) o Reasonably believed not of unsound mind; or o Act did not constitute exploitation of person with impairment of mind Against children—no defence that person believed was older: s229 (Except as otherwise expressly stated, it is immaterial, in the case of any of the offences defined in this chapter committed with respect to a person under a specified age, that the accused person did not know that the person was under that age, or believed that the person was not under that age); o Provision for other defence—but increases onus of proof on the accused Drugs Misuse Act s9 (Possession): R v Claire (1974)
Mistake of Fact negativing an mental element of offence Andrew Trotter LWB239 Criminal Responsibility
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If an offence involves a mental element → mistake of fact may negate that mental element o murder—person honestly but unreasonably believes that gun not loaded—shoots & kills defence does not apply as not reasonable—but no intent to kill or do GBH → manslaughter only No requirement to be reasonable
Andrew Trotter LWB239 Criminal Responsibility
