9.3 Mistake or ignorance of statute law

Commonwealth Criminal Code: Guide for practitioners

9.3 Mistake or ignorance of statute law

(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.

(2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if:

  1. (a) the Act is expressly or impliedly to the contrary effect; or
  2. (b) the ignorance or mistake negates a fault element that applies to a physical element of the offence.

Overview

In general, ignorance or mistake about the existence or application of legislation creating an offence is no excuse. That familiar general principle  is qualified, however, by two provisions which allow mistake or ignorance of law to defeat criminal responsibility in certain circumstances. The first of these refers to the possibility that Parliament might provide a defence, excuse or exception to liability for individuals whose breach of a statutory prohibition results from mistake or ignorance of law. The second provision simply reiterates the “truism” that a defendant’s mistake or ignorance of law might make it impossible for the prosecution to establish fault.216 Perhaps the most familiar application of that truism occurs in offences that require proof of conduct affecting “property belonging to another.”217 There is no doubt that the prosecution must establish fault with respect to this requirement   for liability and fault cannot be established if the defendant’s conduct resulted from a mistake or ignorance relating to ownership of the property in question. Mistakes or ignorance about ownership will often result from ignorance or mistake of law. If the law in question is statutory, an application of s9.3(2)(b) overlaps the provisions in 9.5 Claim of right: discussed below, 9.5-A.

The possibility that reliance on ignorance or mistake of law might permit a person to escape liability because the prosecution cannot prove fault has prompted the legislature to impose strict liability in many instances when physical elements of an offence involve mixed issues of law and fact. Strict liability permits a defence of reasonable mistake of fact: 9.2 Mistake of fact (strict liability). Though the defence of reasonable mistake can extend to include mistakes about mixed issues of law and fact, it is limited by requirements of conscious enquiry and the exercise of reasonable judgement: 9.2-A,9.2-F.

Section 9.3(2)(a), like a number of other provisions in Division 9, does no more than make explicit principles that would otherwise be implied. Legislative provisions which make specific provision for ignorance or mistake of law as an answer or excuse for otherwise criminal conduct are rare. Implied provision for defences which permit reliance on mistake or ignorance of law is more common. Defences such as 9.2 Mistake of fact (strict liability) will extend, on occasion, to include instances where the mistake of fact arises from a mistake or ignorance about the law.218

Like s9.1 Mistake or ignorance of fact (fault elements other than negligence), s9.3(2)(b) does not provide a defence or exception to liability. If the prosecution cannot establish the elements of an offence, nothing has occurred which requires an excuse or the protective shelter of an exception. The subsection merely provides an explicit statement of principles which are implicit in Part 2.2 – The Elements Of An Offence.219 In this context, the issue is not whether the defendant’s mistake was reasonable or unreasonable: enquiries about fault are quite distinct from any consideration of the question whether there is an excuse for breach of a prohibition.220

Though these principles are clear, the question whether ignorance or mistake of law provides a ground for denying fault will always require careful dissection of the offence in issue. Prior to the Code, occasions when ignorance or mistake of law could defeat an allegation of fault have been rare. It is not anticipated that they will occur with greater frequency when Chapter 2 sets the parameters of criminal responsibility.

Cases where ignorance or mistake of law provides the basis for a denial of fault share the common feature that a legal concept defines or characterises  a fact which constitutes, in part or whole, a physical element of an offence. Examples include offences:

  • involving conduct violating rights in “property belonging to another”;
  • demanding a rental payment which “is irrecoverable [in law]”;221
  • making a “false [tax] return”;222
  • acting as an auditor of a company “when disqualified [by law] from appointment to that office”.223

In each of these examples a circumstance specified as an element of the offence is defined or characterised, in part or whole, by statutory criteria.  For example, it is a fact that a director of a company is disqualified from acting as an auditor. It is a fact that rent which exceeds the specified maximum is “irrecoverable”. But these are facts which are constituted or characterised by statutory criteria. Ignorance or mistake about those criteria will provide  a basis for denial of intention, knowledge or recklessness with respect to a circumstantial element of the offence.

FAULT AND ERROR OF LAW WITH RESPECT TO A CIRCUMSTANTIAL ELEMENT OF AN OFFENCE

Facts which constitute physical elements of an offence may be defined, in part, by legislative criteria. The fact that a rental payment is “in excess of…the maximum rental”224 or the fact that a tax return is “false” or “misleading” may depend on statutory criteria which define what is excessive, false or misleading. So also in many instances where liability is imposed for omission. If a statute creates a duty,225 the  fact that a person omitted that duty is a fact defined and constituted by the legislature. So, for example, an omission to file a tax return is  a fact constituted by statutory criteria which define the incidence of the obligation. If legislation does not impose strict or absolute liability with respect to these physical elements of the offence, the prosecution is required to prove fault. When physical elements are characterised in part or whole by legislative criteria, ignorance of those legislative criteria can provide the foundation for denial of fault.

A decision from the New Zealand Supreme Court provides an illustration of the general principle.226 A farmer submitted tax returns to the Tax Commissioner in which he stated that income received from sales of livestock was received in the tax year when buyers paid for the stock, rather than the year in which the sales occurred. The farmer’s returns failed to match the requirements of the Land and IncomeTaxAct 1924 and he was charged with an offence of “wilful[ly] mak[ing] a false return…in relation to…his…liability to taxation”. He believed, wrongly, that his return did conform with legal criteria for a correct return. The High Court held that the false return was not made wilfully since the farmer had “no knowledge of its inaccuracy as a fact affecting liability to taxation”. The decision rests on the principle that one cannot know a statement to be false unless one knows the criteria which distinguish truth from falsity. The same result would follow under Chapter 2, unless strict or absolute liability was imposed. A Code offence would not, of course, require proof of wilful falsity. However, a simple prohibition against making a statement of income which was false would require proof of recklessness with respect to the risk that the statement might be false: 5.6 Offences that do not specify fault elements.

The question whether ignorance or mistake of law will provide a basis for a denial of fault always involves an issue of statutory interpretation. A variation on the preceding example makes the point. Suppose the farmer had made no return at all and had been charged with an offence of “failing to provide a statement of income in relation to his liability to taxation”. If the prohibition says no more than this, the farmer commits no offence if he was ignorant or mistaken about his legal obligations. Section 5.6(1) of the Code requires proof that an act or omission was intentional, unless provision is made for some other form of fault. Clearly he cannot intend or mean to omit to make a return unless he realises that a return might be required: but see 9.3-C, below.

Liability for conduct is often imposed for failure to obtain a permit or to comply with other procedures which make it lawful to engage in that conduct. So, for example, it is an offence under the Financial Transaction Reports Act 1988 to transfer money in excess of a specified sum out of Australia unless a report is made to certain officials.227 In these offences liability is imposed for an act accompanied by the circumstantial absence of a report.  If no specific reference is made to fault, the prosecution must prove recklessness or knowledge with respect to the omission to make a report. It is arguable, in such a case, that the defendant does know that no report has been made.228 Though ignorant of the statutory requirement the defendant, if asked, could answer immediately and with unerring accuracy that there had been no report.229 For example, people who never play golf undoubtedly know that they have not played golf in the last three days, though their knowledge of that fact is unlikely to have been the subject of conscious reflection before the question is asked. If ordinary usage of the concept of knowledge were to prevail, ignorance of the existence of a legal obligation is no answer to the charge, for the defendant knows the fact. To allow the defendant to escape liability in such a case would be tantamount to a requirement that the prosecution prove knowledge of the law. Though the argument has considerable persuasive force, it is unlikely to prevail against the restrictive definition in 5.3 Knowledge, which requires the prosecution to prove that the defendant was consciously aware of the omission: discussed 5.3-A. In practice, the prosecution would be required to prove knowledge of the legal obligation in order to establish knowledge of the omission. If the defendant was ignorant or mistaken about the existence of the law which required a report, it is highly unlikely that the prosecution could establish that the defendant was consciously aware that a report had not been filed.

Statutes which impose liability for failure to meet a legal obligation or to conform with legal restrictions on action will usually make specific reference to provisions elsewhere in that or another Act which impose the obligation or restriction. So, for example, an offence involving possession of a forbidden recreational drug may take the form of a prohibition against “possession of a Schedule 3 substance”. In the absence of any specified fault elements, the prosecution must prove possession accompanied by an intention to possess  a drug named in Schedule 3.230 However, Chapter 2 does not require proof that an offender knew that it was Schedule 3 of a particular Act which designated the drug as one which it was unlawful to possess. There is no need to prove that the offender was aware of the statutory name or designation of the drug. Facts are distinguished from their statutory references or designations. This is also the case if a statutory obligation to provide a report of a transaction is expressed in terms which simply require the person to “provide a report of a [designated transaction] in accordance with the requirements of Schedule X”. Liability for omission to provide a report does require proof that the conduct of the defendant was intentional: see s5.6(1). It follows that a defendant who fails to provide a report is not liable unless the obligation to provide a report was known or suspected. One cannot intend an act or omission unless one knows what it is that one intends. It does not follow, however, that the prosecution must prove knowledge of the statutory reference which identifies the obligation.

  1. As to “truism”, see the commentary to the United Kingdom Draft Criminal Code: Codification of the Criminal Law (Law Commission No 143, 1985), para 9.1 Clause 25(1) Ignorance or mistake negativing a fault element. The corresponding provision in Chapter 2 was derived from this source: see Model Criminal Code: Chapter 2 - General Principles of Criminal Responsibility, Final Report 1992 59.

  2. See, in particular, offences of theft and dishonest obtaining of property belonging to another in Ch 7 – The proper administration of Government.

  3. See, for example, the statutory defence under provisions (since superseded) of the Health Insurance Act 1973 (Cth), at issue in P (1986) 21 A Crim R 186; discussed, Leader-Elliott “Case and Comment: P” (1987) 11 Crim LLJ 112. For general discussion of the difficult issues arising from the distinction between mistakes of fact and mistakes of law, see Fisse, Howard’s Criminal Law (1990) 505-511.

  4. Compare s25 (1) of the UK Draft Criminal Code Bill (1985) (Law Com. No143), which simply declares that “Ignorance or mistake whether of fact or of law may negative a fault element of an offence”. The Law Commission Report on the Draft Bill, para 9.1, notes that the provision, “states a truism….’ignorance of the law is no excuse’ is a popular aphorism with a good deal of power to mislead. It seems worthwhile to enshrine in the Code the truth that a mistake as to the law equally with one as to fact, can be the reason why a person is not at fault in the way prescribed for an offence.”

  5. Section 5.4 Negligence is an exception in this respect.

  6. Iannella v French (1967-1968) 119 CLR 84. Note, however, that the Court divided, two of four judges holding that ignorance or mistake of law concerning rent restrictions provided a basis for a denial of fault.

  7. Donnelly v Inland Revenue Commissioner [1960] NZLR 469.

  8. See Draft Criminal Code Bill (1985) (Law Com. No143), Schedule 1 - Illustrations s25.

  9. See Iannella v French (1967-1968) 119 CLR 84, in which the Court divided on the issue.

  10. The case is different when there is an omission of a duty to take care of another or to avoid injury. In these instances the law usually recognises and provides a sanction for an existing moral duty.

  11. Donnelly v Inland Revenue Commissioner [1960] NZLR 469; cited and discussed, in Iannella v French ibid, 108, 115-116, (Windeyer J).

  12. Financial Transaction Reports Act 1988 (Cth), s15.

  13. Proof of knowledge is equivalent to proof of recklessness: Ch 2 s5.4(4).

  14. Taib; ex parte Cth DPP (1998) 158 ALR 744.

  15. Ch 2 – 5.6(1).