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Mistake Of Fact

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Mistake (criminal law)

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Criminal defenses
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mistake of fact may sometimes mean that, while a person has committed the physical element of an offence, because they were labouring under a mistake of fact, they never formed the required mens rea, and so will escape liability for offences that require mens rea.[1] This is unlike a mistake of law, which is not usually a defense; law enforcement may or may not take for granted that individuals know what the law is.


Most criminal law systems in developed states exclude mistake of law as a defense, because allowing defendants to invoke their own ignorance of the law would breach the public policy represented by the Latin maxim: ignorantia legis neminem excusat. But someone operating under a mistake of fact will not generally be liable, because, although the defendant has committed the actus reus of the offense, the defendant may honestly believe in a set of facts that would prevent him or her from forming the requisite mens rea required to constitute the crime.[citation needed]

For example: A defendant goes into a supermarket and places eight items in a basket which is presented to the cashier for payment in the usual way. Both honestly believe that all eight items have been scanned, and the defendant pays the sum shown on the bill. A store detective, however, notices that a mistake was made by the cashier so that only seven items were priced. This detective arrests the defendant after leaving the store. Since the defendant honestly believes that he has become the owner of goods in a sale transaction, he cannot form the mens rea for theft (which is usually dishonesty) when he physically removes them from the store.

There is a complex question as to whether the defense of 'mistake' applies to crimes that do not specify a mental element – such as strict liability offences and manslaughter by criminal negligence. In Australia, the High Court's 2005 ruling in R v Lavender[2] prevents the use of any 'reasonable mistake of fact' defense in cases of involuntary manslaughter.[3] However, the defense of mistake is available to offences of strict liability such as drunk driving: see DPP v Bone [2005] NSWSC 1239. And it is the very availability of the defense of 'mistake' that distinguishes between offences of strict and absolute liability. Mistake of fact is unavailable in respect to absolute liability offences.[4]

Mistake of fact

Mistake of fact may be a defence in criminal law if it is genuine, whether or not it is reasonable.

In DPP v Morgan[14] an RAF officer told three other officers to have sex with his wife, and that she would pretend to refuse just to be stimulating. They pleaded mistake, and the jury did not believe them. The House of Lords held that the judge had wrongly directed the jury that the mistake must be a reasonable one; the correct legal test was whether the defendants had honestly believed the wife was consenting, not whether they reasonably believed this. However, on the facts the House of Lords held the conviction was nonetheless safe despite the misdirection. R v Williams (Gladstone) confirmed the principle stated in Morgan that a belief that a certain set of facts are true does not need to be reasonable to operate under the defence of mistake. It merely needs to be genuine. However, the reasonableness of that belief is material in the jury deciding whether the defendant had actually held that belief.[15]

An exception to this appears to be bigamy (see R v Tolson (1889) 23 QBD 168).

The Sexual Offences Act 2003 has introduced a hybrid test of reasonable belief as to consent. The defendant must now be seen to have taken steps to ascertain clearly whether the "victim" was consenting in all the circumstances. This abolishes the defence of a genuine though unreasonably mistaken belief as to the consent.

Mistake of law

Mistakes about the criminal law

It is not a defence that the defendant held an honest and reasonable belief that what he was doing was not criminal.[16] Where the defendant is a foreigner, and the offence is not criminal in his own country, the fact of such a belief is still not a defence.[17] It is not a defence that the defendant believed that he would not be prosecuted for what he was doing.[18]

Offences created by statutory instruments

Section 3(2) of the Statutory Instruments Act 1946 provides:

In any proceedings against any person for an offence consisting of a contravention of any such statutory instrument, it shall be a defence to prove that the instrument had not been issued by [or under the authority of] His Majesty's Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged.

(Words in brackets inserted by section 1(1)(a) of the Statutory Instruments (Production and Sale) Act 1996, as read with section 1(2))

Mistakes about the civil law

A mistake about the civil law may have the effect of negativing the mens rea for an offence. See:

  • Section 2(1)(a) of the Theft Act 1968
  • R v Smith (David Raymond) [1974] QB 354, 58 Cr App R 320, [1974] 2 WLR 20, [1974] 1 All ER 632, CA
  • R v Gould [1968] 2 QB 65, 52 Cr App R 152, [1968] 2 WLR 643, [1968] 1 All ER 849, CA
  • R v Barrett and Barrett, 72 Cr App R 212, [1980] Crim LR 641, CA

See also

  • Error


  1. ^ LeRoy Miller, Roger (2011). Business Law Today: The Essentials. United States: South-Western Cengage Learning. p. 190. ISBN 1-133-19135-5.
  2. ^ R v Lavender (2005) HCA 37; 222 CLR 67 – via AustLII. Retrieved 20 March 2019.
  3. ^ Judicial Commission of New South Wales (August 2005). "The Queen v Lavender [2005] HCA 37 – Malice not an element in involuntary manslaughter". Criminal Trial Courts Bench Book, Special Bulletin 12. Retrieved 20 March 2019.
  4. ^ "Criminal Law". H&M. Retrieved 5 May 2015.
  5. Jump up to:a b The Australian Federal Criminal Code is contained in the Schedule to the 1995 Commonwealth Criminal Code Act. Division 9 of Section 3 of this Schedule deals with "circumstances dealing with mistake or ignorance" including mistakes of fact where there are fault elements other than negligence (subsection 9.1) and in circumstances of strict liability (subsection 9.2). Ignorance of statute law and of subordinate legislation are not defences under subsections 9.3 and 9.4, respectively.
  6. Jump up to:a b Schedule to the Criminal Code Act 1995 (Cth)
  7. ^ Crimes Act 1914 (Cth)
  8. Jump up to:a b c Parliamentary Library of Australia. History of criminal law(Report). Parliament of Australia. Retrieved 20 March 2019.
  9. ^ Human Rights (Sexual Conduct) Act 1994 (Cth)
  10. ^ Euthanasia Laws Act 1997 (Cth)
  11. ^ Corporations Act 2001 (Cth)
  12. ^ International Criminal Court Act 2002 (Cth)
  13. ^ R v Park [1995] 2 S.C.R. 836 – full text via CanLII. Retrieved 20 March 2019.
  14. ^ [1976] AC 182, [1975] 2 WLR 913, [1975] 2 All ER 347, 61 Cr App R 136, [1975] Crim LR 717, HL
  15. ^ R v Williams (Gladstone), (1983) 78 Cr App R 276, [1984] Crim LR 163, CA (28 November 1983)
  16. ^ Johnson v Youden [1950] 1 KB 544 at 546, [1950] 1 All ER 300, 66 TLR, (Pt. I), 395, DC
  17. ^ R v Esop (1836) 7 C & P 456, (1836) 173 ER 203; R v Barronet and Allain (1852) Dears 51, (1852) 169 ER 633, (1852) 1 E & B 1, (1852) 118 ER 337, (1852) 22 LJMC 25, (1852) 17 Jur. 184
  18. ^ R v Arrowsmith [1975] QB 678, 60 Cr App R 211, [1975] 2 WLR 484, [1975] 1 All ER 463, [1975] Crim LR 161, CA

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