Division 9 Circumstances involving mistake or ignorance

Commonwealth Criminal Code: Guide for practitioners

Overview

Most Chapter 2 defences are excuses which do not come into play until the prosecution has established all of the physical and fault elements necessary   to constitute an offence: 3.3 Establishing guilt in respect of offences. In traditional terminology, the defences combine a confession to the charge  that an offence has been committed with a claim that guilt is avoided by reason of the defence. Division 9 contains three exceptions to this generalisation. Section 9.5 - Claim of right, consists of two distinct provisions, only one of which is a true defence. It opens with the statement that a defendant who relies on claim of right is not criminally responsible if the mistaken claim would “negate a fault element” required for the offence. It is obvious that this provides no advantage to an accused which is not already inherent in the definition of the original offence. The provision goes on to provide a true claim of right defence, though it is one which is more restricted than its common law counterpart. Section 9.1 - Mistake or ignorance of fact (fault elements other than negligence), is similar in its apparent lack of exculpatory effect.  That is not to say that these two provisions have no  effect at all. It is possible, for example, that they appear to favour defendants when, in reality, they ease the task of the prosecution in proving fault. This speculative possibility will be taken up below.   The third of the exceptions   is s9.3 - Mistake or ignorance of statute law, which declares that mistake or ignorance of a statutory provision relating to an offence is no excuse if the physical and fault elements are established. The rule is different, however, when a defendant relies on mistake or ignorance of subordinate legislation. Section 9.4 - Mistake or ignorance of subordinate legislation provides a true defence for individuals who commit offences as a consequence of inadequate publication of subordinate legislation.

The most important of the defences based on mistake or ignorance is s9.2 - Mistake of fact (strict liability). As its name indicates, it provides the definitional content for strict liability as a form of criminal responsibility without fault: 6.1 Strict liability.

Division 9 Circumstances involving mistake or ignorance

9.2 Mistake of fact (strict liability)

Reasonable mistake of fact preserves the fundamental principle that an accused is innocent until guilt is proved beyond reasonable doubt. If relevant evidence is given in support of the defence, the prosecution is required to persuade the jury that there was no mistake or that the mistake was unreasonable.

9.5 Claim of right

The simplest instances in which claim of right bars liability are those where a charge of theft is defeated on the ground that property was appropriated by the defendant in pursuit of a mistaken claim to ownership.