9.1 Mistake or ignorance of fact (fault elements other than negligence)

Commonwealth Criminal Code: Guide for practitioners

9.1 Mistake or ignorance of fact (fault elements other than negligence)

(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:

  1. (a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
  2. (b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.

(2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.

Overview

Mistake or ignorance of fact is an unnecessary inclusion among the defences. The Model Criminal Code Officers Committee conceded that the provision was redundant. It was included because it was felt that it would tend to clarify the operation of the Code provisions and that it would be unlikely to generate confusion or error: “In part the Committee was influenced by the fact that the Code will speak to a wider audience than lawyers.”188  In view   of its intended purpose, as an informative redundancy, it is unlikely to play any significant role in the development of Code jurisprudence.

The proposition is obvious and in no need of elaboration.

The provision is unusual in statute law, though Victorian rape legislation, permits the inference that the defendant knew the victim had not consented if a mistaken belief that the victim had consented would have been unreasonable  in  the  circumstances.189  Chapter 2 generalises that approach to all offences which require proof of intention, knowledge or recklessness. Unlike the Victorian provision, which requires the trier of fact to consider whether the mistaken belief was reasonable, s9.2 is permissive. It  does not  go beyond the unexceptionable proposition that a claim of ignorance or mistake is more rather than less credible if mistake or ignorance would have been reasonable in the circumstances. If the capacity for reasonable behaviour of the individual in question was limited by some disability, whether permanent or temporary, involuntary or self induced, no adverse inference can be drawn from the fact that mistake or ignorance was unreasonable in  the circumstances.190

Since 9.1 Mistake or ignorance of fact is described in the Code as a “defence”, it might seem to follow that the defendant bears an evidential “burden of adducing or pointing to evidence that suggest(s) a reasonable possibility”  that their conduct was not accompanied by the fault element required for  the offence.191 In true defences, which excuse rather than deny the existence of the elements which comprise the offence, a court is required to withhold the defence from the jury if the defendant fails to discharge the evidential burden: s13.3 Evidential burden – defence. Since s9.1 is not a true defence, failure to carry the evidential burden neither requires nor permits the court to withdraw issues of fault from the jury.

The prosecution is still required to “prove every element of an offence relevant to the guilt  of  the  person  charged.”192  Though a defendant charged with an offence requiring proof of intention, knowledge or recklessness adduces no evidence of mistake or ignorance the issue of fault still goes to the jury which must consider all the evidence relevant to the issue.

  1. MCC - Ch2: General Principles of Criminal Responsibility (Final Report 1992), Commentary 55.

  2. Crimes Act 1958 (Vic), s37(1)(c).

  3. Special provision has been made, however, to exclude evidence of self induced intoxication in some circumstances: Division 8 – Intoxication.

  4. Ch 2, s13.3 - Evidential burden of proof - defence.

  5. Ibid, s13.1 - Legal burden of proof - prosecution.