12.5 Mistake of fact (strict liability)

Commonwealth Criminal Code: Guide for practitioners

12.5 Mistake of fact (strict liability)

(1) A body corporate can only rely on section 9.2 (mistake of fact (strict liability)) in respect of conduct that would, apart from this section, constitute an offence on its part if:

  1. (a) the employee, agent or officer of the body corporate who carried out the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence; and
  2. (b) the body corporate proves that it exercised due diligence to prevent the conduct.

(2) A failure to exercise due diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:

  1. (a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
  2. (b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

Overview

Chapter 2 requires specific provision before strict liability is imposed. A declaration that liability is strict with respect to an offence or a particular physical element of an offence, displaces the prosecution obligation to prove fault with respect to some or all physical elements of the offence: 6.1 Strict liability. Though the prosecution has no need to prove fault when strict liability is imposed, s9.2 Mistake of fact (strict liability) permits the accused to rely on the defence of reasonable mistake of fact. Adaptation of the defence is necessary if a corporation is to rely on reasonable mistake. Though s12.5 permits a corporation to share, vicariously, in the potential benefits of  a mistake made by an employee, agent or officer, it places significant limits on that reliance. The defence of reasonable mistake, which must be disproved by the prosecution when individual criminal responsibility is in issue, is transformed into an affirmative defence that the corporation must prove on the balance of probabilities. The fact that a corporate agent made a reasonable mistake is not sufficient to exculpate the corporation. The corporation must take the further step of proving that it exercised due diligence in the supervision of the agent. The due diligence limit is an expression, in yet another guise, of the pervasive principle of organisational blameworthiness.

When strict liability is imposed with respect to the physical elements of an offence, the defence of reasonable mistake is not available to a person who is merely ignorant, no matter how reasonable their ignorance may be. Since mistaken belief is required, corporate reliance on the defence is necessarily vicarious, requiring evidence that some particular agent held a belief in facts which would have made the conduct in question innocent. Of course, the defence is barred if the belief is both mistaken and unreasonable. The requirement that the belief be “reasonable” appears to refer to a belief that would be reasonable for the individual in question to hold in the circumstances. But reasonableness from the agent’s point of view is not determinative. The defence fails if the agent’s mistake resulted from a lack of due diligence on the part of the corporation, however reasonable it may  have been for someone in the agent’s circumstances.

It is quite possible to envisage circumstances in which breach of a prohibition occurs as a consequence of conduct by a number of corporate agents. That may often be the case, for example, in violations of provisions which impose strict liability for environmental pollution. The fact that one of more corporate agents may have laboured under a reasonable mistake of fact will not provide the corporation with a defence of reasonable mistake of fact if others, whose conduct constituted the offence, were merely ignorant.389

The reasonable mistakes of corporate agents may be a consequence of corporate mismanagement, failures in training or failure to disseminate information for their guidance. The corporation is required to maintain a standard of due diligence in management and information policy. Since s12.5(1)(b) requires the corporation to “prove” due diligence, it bears the legal burden of proof of due diligence: 13.4 Legal burden of proof – defence. Considered as a corporate defence reasonable mistake of fact is, at least in part, an affirmative defence.

  1.  This appears to be the logical consequence of the fact that the “conduct’ to which reference is made in the opening to s12.5(1) (conduct that would…constitute an offence) is not the same as the “conduct” to which reference is made in para (a) (“…employee…who carried out the conduct”). The first reference is to corporate conduct, which may be an aggregation of different acts and omis- sions of different individuals, attributed to the corporation pursuant to s12.2 Physical elements.