9.2 Mistake of fact (strict liability)

Ignorance, no matter how reasonable or understandable in the circumstances, is no excuse. The Code follows the much debated recommendation of the Model Criminal Code Officers Committee that “ignorance should not be included because this would make strict liability more like negligence, thus eroding the higher standard of compliance set by strict liability”.¹⁹³ Though mistake and ignorance tend to merge in ordinary usage,¹⁹⁴ the Code insists that one cannot be mistaken about facts unless one has first “considered whether or not facts existed”.  The apparent intention of the provision was  to impose what is, in effect, a duty of inquiry in circumstances where conduct might result in commission of a strict liability offence. The resulting tension between the recognition of a defence based on reasonable mistake and the denial of any defence based on reasonable ignorance is apparent in the further qualification of that distinction in 9.2(2). If the situation in which the offence occurred had arisen on a previous occasion, a consideration of the facts on that occasion will absolve the defendant from the need to consider the facts again, when the offence occurred. A person who lends a car to a friend, after checking their driving licence, will not lose the right to plead reasonable mistake simply because the inquiry was not repeated a fortnight later, when the car was lent again to the same borrower, whose licence had lapsed. An honest and reasonable belief that nothing had changed can provide the basis of a defence of reasonable mistake.¹⁹⁵

IGNORANCE AND MISTAKE IN CRIMES OF STRICT LIABILITY AT COMMON LAW

New South Wales case law lends support to the Code rule that ignorance, whether reasonable or not, cannot provide the basis for a defence of reasonable mistake of fact. Courts have taken the view that “inadvertence” is not enough for the defence: there must be evidence of “the existence of an actual or positive belief ”¹⁹⁶ or an “affirmative belief ”.¹⁹⁷ Taken together, these dicta suggest that inarticulate beliefs are not sufficient, even though they may be founded on reasonable expectations and assumptions.¹⁹⁸ Similar tendencies are apparent in state and territorial jurisdictions which have adopted versions of the Griffith Code: the defence of reasonable mistake of fact does not extend to reasonable ignorance.¹⁹⁹ Common law jurisdictions enjoy more flexibility in applications of the defence of reasonable mistake.   It is possible that New South Wales courts might apply the requirement of an actual or positive belief selectively to some offences of strict liability and not to others. This additional complication was introduced by Gleeson CJ in State Rail Authority v Hunter Water Board.²⁰⁰ It appears that the answer to the question whether the defendant can be said to have been mistaken, rather than merely ignorant, may depend on the statutory offence charged: “The word ‘mistake’ is, itself, ambiguous. Suppose, for example, that a person permits someone who is in fact unlicensed to drive that person’s car. The owner...may have a positive belief that the driver is licensed, or, having considered the matter in a general way, may be of the view that there is no particular reason known to the owner why the driver should not be permitted to drive, or might simply not trouble to  think about the subject at all. In any of these cases, the owner might well say that he or she was surprised to learn subsequently that the driver was unlicensed. However it is another thing to say that the owner had made a mistake about the matter....It seems clear enough that, of the three states of mind just described, the first would, in the present context, be accepted as a mistake of fact and the third would not. Whether the intermediate possibility would also be accepted might depend upon a closer examination of the particular case and a consideration of the legislative purpose in creating the offence.”²⁰¹

The Code makes no attempt to reform or clarify existing law on the distinction between reasonable mistake of fact, which excuses, and reasonable mistake   of law, which does not.

The defence requires a mistaken belief in facts which are, in some way, inconsistent with the existence of the circumstance or result which makes  the conduct an offence. The most familiar applications of the defence occur in cases where the mistake relates to circumstantial elements of the offence charged. Consider, for example, the sexual offences proposed in the Model Criminal Code, Ch 5: Division 3 - Sexual Acts Committed against or with children. Strict liability is imposed with respect to age in a number of these offences. A defendant’s mistaken belief that a child sexual partner holds a driving licence would provide the basis for a defence, if that belief was reasonable, when attainment of the age for a driving licence would be inconsistent with the incriminating circumstance.  It  makes no difference   in such a case that the defendant may have been ignorant of the law relating to sex with minors and quite unaware of the significance of their belief concerning the age of the child. In this instance, the mistaken belief relates  to an existing fact. Though the mistaken belief in this instance relates to an existing fact, any mistake of fact, whether it relates to the past, present or future, may provide a basis for the defence. Though most instances of strict liability relate to circumstantial elements of an offence, strict liability is also imposed on occasion with respect to results of conduct. Offences of causing death or injury by culpable driving provide familiar instances in state and territorial law. Criminal prohibitions against conduct which causes pollution also take this form.²⁰² Of course, mistakes about what will happen in the future necessarily depend on beliefs about present circumstances. One rehearses the reasons why a harmful result cannot occur or one takes precautions to ensure that it will not. Reasonable beliefs about existing circumstances provide the ground for reasonable mistakes of fact about what will happen in the future.

Reasonable mistakes about circumstantial elements of an offence often concern present or past facts. In the typical example of sexual offences  against children, a person who contemplates sexual intercourse with a partner who might not have reached the age of consent ought to take particular care to inquire about existing facts. So far as criminal responsibility is concerned, there is no need to consider what might happen after intercourse occurs:    the intended sexual partner cannot become any younger. But circumstantial elements which make conduct criminal are not invariably located in the present or past. Chapter 2 envisages that liability will be imposed, on occasion, for conduct which only becomes criminal at a later time, when an incriminating circumstance comes into existence.²⁰³ In an example discussed earlier the point was made that the effects of criminal conduct are often   long delayed and it is quite possible that the incriminating circumstance   may not occur until long after the acts or omissions which constitute the conduct element of the offence: see above 4.1-E. Strict liability may also be imposed for the results of conduct. When liability is imposed for results or future circumstances, a defence of reasonable mistake of fact will depend on the defendant’s beliefs relating to precautions or preventive factors. Reasonable mistake of fact will provide a defence for an accused who was convinced, on reasonable grounds, that the incriminating result could not occur. However, mistake is no excuse if the defendant knew that the preventive factors might prove illusory or that precautions might fail. The standard set by the defence of reasonable mistake of fact is absolute in the sense that it requires a reasonable belief that incriminating results will not occur and incriminating circumstances will not exist. It makes no difference that a reasonable person might have considered the risk worth taking. The defence only excuses if the defendant made a reasonable mistake: it is not a defence of reasonable behaviour or due diligence. This rigour is softened to some extent by the provision of a defence which excuses accidental breach of provisions which impose strict or absolute liability: 10.1 - Intervening conduct or event.

STRICT LIABILITY FOR FUTURE CIRCUMSTANCES OR RESULTS AND THE LIMITS OF THE DEFENCE OF REASONABLE MISTAKE OF FACT

Criminal responsibility for offences of possession depends, as Brennan J remarked in He Kaw Teh,²⁰⁴ on “what the person who has possession does in relation to the thing possessed”. When liability for possession depends on an incriminating circumstance, the act which results in possession of the thing in question may precede the circumstance which brings possession within the scope of the prohibition. So, for example, in Geraldton v Munro,²⁰⁵ a fisherman was convicted of possession of underweight crayfish tails. The conduct which resulted in possession of the underweight tails necessarily preceded the circumstance that the tails which came into the defendant’s possession were underweight. The fisherman’s defence of reasonable mistake of fact failed.  Though precautions had been taken it was conceded that  it would be “utterly unreasonable” for the defendant to believe that  the checking system would detect all undersized fish. Since reasonable precautions are rarely perfect, the defence of reasonable mistake of  fact will fail to protect some individuals who do take reasonable measures to comply with the law.  The case has been a mainstay of   the argument that common law should extend the defence of reasonable mistake of fact to include “due diligence”.²⁰⁶

The defence is not available unless the defendant’s conduct would not have been a criminal offence, had the mistaken belief been true. In  this respect  the Code reflects common law principle though the application of that principle is more limited in its effects in Commonwealth than State or Territorial law. The well known case of Reynhoudt,²⁰⁷ which involved the offence of assaulting a police officer in the due execution of duty,  provides  an apt example of the common law principle. A majority of the High Court held that the offence imposed strict liability with respect to the status of the victim of the assault.²⁰⁸ Though reasonable mistake of fact could excuse the offence, both common law and the Code restrict the defence to a mistaken belief in a state of facts in which “the conduct could not have constituted an offence.” Take the case of an assault on a plain clothes officer. At common law, a reasonable mistake concerning the officer’s status could not excuse an offender if the assault was itself unlawful; but reasonable mistake would excuse a defendant who believed that the plain clothes officer was an unlawful assailant. This restriction on the defence is open to criticism when the offence charged is very much more serious than the offence which would have been committed had the mistaken belief been true. Though the common law has been subjected to criticism on this account,²¹⁰ courts have been unmoved by the criticism. Chapter 2 accepts the prevailing common law view that a reasonable mistake which merely goes to the nature or degree of the criminal offence is no excuse.  Commonwealth criminal law allows  the defence a wider scope, however, than State and Territorial law. That is a consequence of the fact that the reference in s9.2(1)(b) to an “offence” must be taken to refer only to Commonwealth offences.²¹¹ It follows that reasonable mistake can excuse a defendant charged with a Commonwealth offence though their conduct would have violated state or territorial law, had the mistaken belief been true. The effect can be illustrated by the Code provisions in Division 71 – Offences Against United Nations and Associated Personnel, which closely parallel the original form of the offence of assaulting a police officer.  Each of these offences imposes strict liability with respect to the   UN status of the victim of the attack. Since Commonwealth law,  unlike  state and territorial law, does not include a general offence of assault or  harm, a reasonable mistake about the status of the victim will, in most cases, excuse a gratuitous attack. Reasonable mistake would not excuse the infliction of harm, however, if the defendant mistook a UN official for a Commonwealth official. Though the Code does not recognise a general defence of assault or harm to another, it does impose liability for attacks on its own personnel.²¹²

The requirement of a reasonable mistake implies the existence of a measure or standard of reasonableness. Common law authorities provide little guidance on the meaning of the reasonableness standard. In the law of self defence,  the common law concedes that a reasonable mistake is one which it was reasonable for the defendant to make in the circumstances.²¹³ The standard set in self defence is responsive, to some extent at least, to the situation of a defendant who may have been required to act on the instant to an apparent threat. It is uncertain whether common law requires or permits the same flexible approach when a defendant pleads a defence of reasonable mistake   to an offence which imposes strict liability.  That is a consequence, in part,   of the fact that strict liability is rarely if ever imposed to regulate conduct which is undertaken in circumstances of panic or stress.  Chapter 2 does  offer implicit guidance on the issue. Since the defence of reasonable mistake requires evidence that the defendant “considered whether or not facts existed”, the question whether a mistake was reasonable must depend on the circumstances in which that consideration could take place.²¹⁴ It is implied that the mistake must be one which it was reasonable to make in the circumstances. It is unlikely, however, that the standard will be reduced for individuals whose capacity for reasonable judgment is limited or impaired.²¹⁵

193. MCC - Ch2: General Principles of Criminal Responsibility (1992) Commentary, 55. Compare C Howard, Strict Responsibility (1963) 95: “If the basis of the law is negligence, which is clearly true of the Australian reasonable mistake rule, it is necessary only to be able to regard a failure to make inquiries as negligent.”

194. Often we speak of “mistake” when explaining how it is that our intentions misfired. Mistakes of this nature may or may not be preceded by consideration of the facts. So, for example, I may place salt in my tea “by mistake.” But this is just the sort of thing I do precisely because I didn’t think what I was doing and didn’t consider the facts. Compare J Austin, “A Plea For Excuses” in Philosophical Papers (1961, edited JR Umson & GJ Warnock), 123, 132-133, 143-150.

195. MCC - Ch2: General Principles of Criminal Responsibility (1992) Commentary 55, describes the rule as a codification of “the rule in Mayer v Marchant (1973) 5 SASR 567, regarding a belief that a state of affairs is continuing. “ Here, as elsewhere in the Code, “belief” appears to refer to tacit as well as explicit beliefs.

196. VonLieven v Stewart (1990) 21 NSWLR 52 at 66-67, per Handley JA.

197. State Rail Authority v Hunter Water Board (1992) 65 A Crim R 101 at 104-105 per Gleeson CJ. The leading discussion of the issue is to be found in Mayer v Marchant (1973) 5 SASR 567.

198. See Fisse, Howard’s Criminal Law (1990) 504, for cases which express a contrary view.

199. See, for example, Cervantes PL v State Electricity Commission of Western Australia (1991) 5 WAR 355.

200. State Rail Authority v Hunter Water Board (1992) 65 A Crim R 101.

201. Ibid, 104. Gleeson CJ. Emphasis added.

202. See s16(1) Clean Waters Act 1970 (NSW) (since superseded by s120, Protection of the Environment Operations Act 1997 (NSW); discussed in State Rail Authority v Hunter District Water Board (1992) 65 A Crim R 101 at 104, per Gleeson CJ: “The offence of polluting waters has been described as a ‘result offence….’” It has been suggested that the common law defence of reasonable mistake of fact is restricted to mistakes about circumstances. D Brown, D Farrier, S Egger, L McNamara, Criminal Laws (3ed 2001) 454-455. The suggestion appears to have been intended to open a field for the application of a common law defence of “due diligence”. Whatever the merits of that suggested limitation of the common law defence, it has no shred of support in the Code. Discussed at 4.1-E. Compare B Fisse, Howard’s Criminal Law (1990) 516.

203. Ch 2, Division 5 - Fault elements. Definitions of intention, knowledge and recklessness make explicit provision for circumstances which “exist or will exist”.

204. (1985) 15 A Crim R 204, 233.

205. [1963] WAR 129.

206. See B Fisse, Howard’s Criminal Law 521-522. Compare D Brown, D Farrier, S Egger, L McNamara, Criminal Laws (2001) 454-455, who argue for a defence of “due diligence” when strict liability is imposed for “results”.

207. (1962) 107 CLR 381.

208. The legislation was subsequently amended to require proof of knowledge of the officer’s status:Crimes Act 1958 (Vic) s31.

209. <blank>

210. B Fisse, Howard’s Criminal Law (1990) 521.

211. See Criminal Code Act 1995 (Cth) s4 Definitions and the Code Dictionary, which defines “offence” as “an offence against a law of the Commonwealth”.

212. CC Part 7.8 – Causing Harm To, And Impersonation And Obstruction Of, Commonwealth Public Officials.

213. Zecevic (1987) 162 CLR 645.

214. The implication becomes explicit in ss(2) when account must be taken of defendants whose reason- able mistakes are based on an earlier consideration of the circumstances.

215. Richards and Gregory [1988] 2 VR 1.