(08) 9278 2575Mistake of Fact
The defence of Mistake of Fact applies when a person acts under an honest and reasonable, but mistaken, belief about a key fact related to the offence.
Mistake of Fact under section 24 of the Criminal Code Act Compilation Act 1913 (WA) (“the Code”) operates as a complete legal defence for any person charged with an offence under the criminal law in WA. It is a defence that is commonly raised within the context of speeding offences and sexual offences.
The following paragraphs outline the key elements of the defence, situations in which it is commonly raised and recently proposed changes to how the defence applies in WA.
Key Elements of the Mistake of Fact Defence
To successfully raise the defence of mistake of fact, two key elements must be established:
- Firstly, the accused must have genuinely mistakenly believed in a particular state of affairs at the time of the offence. This is a subjective assessment, focusing on what the person actually believed.
- Secondly, the mistaken belief must have been reasonable, meaning that it would make sense to an ordinary person with similar attributes to the accused. This introduces an objective element, ensuring the belief isn’t only honestly held, but also justifiable under the circumstances.
This defence applies broadly to many offences unless it is specifically excluded by law. If properly raised by the evidence in a trial and the prosecution fail to disprove (or negate) the evidence, it results in a finding of not guilty and a judgment of acquittal.
Proving An Actual Mistaken Belief
The first element of the legal defence of mistake of fact is that a person must be under an actual mistaken belief in a particular state of affairs.
For example, the defence may be raised if an accused person is charged with a speeding offence and honestly believed at the time that they were driving under the speed limit. Further, the defence may be raised within the context of sexual offences where the accused argues they honestly, but mistakenly believed the complainant was consenting.
A Reasonable Belief
The second element of the legal defence of mistake of fact is that a person’s belief must be reasonable. Courts balance subjective and objective aspects when determining the reasonableness of the belief constituting the defence of mistake of fact.
Personal characteristics like age or intellectual disabilities can be considered, but impairments due to intoxication are excluded from this assessment, ensuring that voluntary intoxication cannot justify an unreasonable belief. Furthermore, values or cultural beliefs, such as extreme views about behaviour or appearance, are not taken into account, ensuring that the defence is grounded in objective community standards rather than subjective personal views.
Proposed Reforms
Recently, concerns have been raised in a report by the Western Australian Law Reform Commission regarding the application of the mistake of fact defence to sexual offences.
The report has recommended that greater legislative guidance should be provided to clarify what constitutes a reasonable belief in the context of mistake of fact, particularly in sexual offence cases.
Proposed reforms suggest defining a narrow list of attributes and characteristics that can be considered when assessing reasonableness to the following:
- Intellectual disabilities;
- Developmental disorders (including autism spectrum disorders and foetal alcohol spectrum disorders);
- Neurological disorders;
- Mental illnesses;
- Brain injuries;
- Dementia;
- Physical disabilities; and
- Where the offender is under 18, young age and immaturity.
Further, the report suggested the Code should provide that the accused’s belief that the complainant consented to a sexual activity is not reasonable if the accused did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the complainant consented to that activity. This would institute an ‘affirmative consent’ model in Western Australia.
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