Mistake of Fact – General Principles
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been as such as the person believed to exist (s24 Criminal Code (WA). This is known as ‘Mistake of Fact’.
Section 24 provides a ‘ground of exculpation’ rather than a defence (CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 [8]; BSJ v The State of Western Australia [2023] WASCA 5 [49]). It is, however, sometimes convenient to refer to s.24 as a defence so far as it is engaged as an argument in answer to an allegation that an accused has committed a criminal offence.
The mistake must be one of fact, not the law, as to the real state of things. This is a reference to the state of things relating to the elements of the offence in question, not to the state of things as to whether the offence exists or whether the conduct constituted by those elements is an offence (Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493, [10]-[11]). Ignorance of the law is not a defence (Criminal Code (WA) s.22).
The belief must be both honest and reasonable but mistaken. If that is the case, the person is not criminally responsible for their act or omission to any greater extent than if the real state of things had been as such as was believed to have existed (G J Coles & Co Ltd v Goldsworth [1985] WAR 183 at 187-188). In assessing a mistake of fact by the accused:
- The accused must have acted under an actual belief which is a subjective element; and
- The accused’s belief must be reasonable which is a mixed element.
The mixed element is a combination of subjective and objective aspects. In other words, the belief must be reasonable to the ordinary person and is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting their appreciation or perception of the circumstances in which they found themselves. These personal attributes and characteristics include their age, gender, ethnicity, as well as physical, intellectual and other disabilities (Aubertin v The State of Western Australia [2006] WASCA 229 [43]).
A belief cannot be positively held if, for example, the person has deliberately not found out the facts or does not know the facts because they have not bothered to think of them (BSJ v The State of Western Australia [2023] WASCA 5 [4]).
Mistake of Fact in Sexual Offences
The issue of mistake of fact often arises in sexual offence matters.
The question of mistake of fact under s. 24 is often concerned with mistake on the part of the accused person as to whether the complainant consented to the sexual touching and/or penetration with which the appellant was charged. ‘Consent’ means consent freely and voluntarily given (Criminal Code (WA) s. 319(2)(a)).
In the context of an offence of sexual penetration without consent, s.24 will not arise for determination unless there is, in fact, no consent. The same is true in relation to an offence of indecent assault. Therefore, the prosecution must firstly prove beyond reasonable doubt that there was no consent to the sexual touching and/or penetration by the complainant.
Likewise, s.24 has no application where the evidence is that there was express and unequivocal consent. In those cases, no possibility for mistake exists (WCW v The State of Western Australia [2008] WASCA 232 [100]).
A mistake of fact pursuant to s.24 as to consent of the complainant will only arise for determination where (Narkle v The State of Western Australia [2011] WASCA 160 [39]):
- There was, in fact, no consent; and
- There is some evidence, fit for the tribunal of fact’s consideration, that at the material time the accused had an honest and reasonable, but mistaken, belief that the complainant consented to the sexual penetration or indecent act.
Where there is evidence of an honest and reasonable but mistaken belief by the accused that the complainant consented to the relevant sexual touching or sexual penetration, the burden of negativing the issue of mistake of fact rests on the prosecution (CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 [8], [35]; WCW v The State of Western Australia [2008] WASCA 232 [8]).
In such circumstances the prosecution must prove beyond reasonable doubt that the accused did not honestly and reasonably believe that the complainant consented to the sexual touching or sexual penetration (BSJ v The State of Western Australia [2023] WASCA 5 [59]). Accordingly, the jury must acquit if there is a reasonable doubt that the accused honestly and reasonably believed that the complainant consented to the sexual touching or sexual penetration.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) and Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
