Mistake
Mistake of Law v Mistake of Fact
Mistake as to observable facts → mistake of fact
o Belief that something had in fact happened: R v Tolson (relied on belief that first wife had
died mistake of fact)
o Mistake as to whether a certain legal declaration has in fact been made: R v Thomas
(bigamy—W1 divorced previous husband to marry T—T believed decree nisi=divorce had
not been made absolute & marriage therefore void—married W2 question of fact ←
mistake as to whether the decree nisi had been made absolute = fact || mistake of law if eg
mistaken as to effect of decree nisi)
o Mistake that something has in fact been authorised: Loveday v Ayre (treatment of timber in
contravention of regulations—told that had been approved mistake of fact || mistake of
law if no mistake as to declaration but knew what the substance was and thought was
lawful)
Mistake as to law or legal conclusion drawn from observable facts → mistake of law
o Mistake as to the content of the law: R v Kennedy (believed that earlier marriage was not
married as marriage with first cousin mistake of law)
o Mistaken judgement as to legal conclusion from known facts: Sancoff v Holford; Ex parte
Holford (possession of obscene books—aware of contents but did not believe to be obscene
mistake of law || mistake of fact if eg thought the books contained articles on Electrical
Engineering)
o Mistake of law based on information
mistaken information provided: Ostrowski v Palmer (2004) per McHugh J (lobster
fisherman—fishing in prohibited zone—relied on copy of regulations provided by
Fisheries WA—were outdated mistake of law ↔ mistake of fact if eg thought
that was in a different area due to navigational error ||AG made undertaking to remit
costs & penalties—but still recorded conviction—judges scathing of prosecution)
Information mistakenly interpreted: Iannella v French (increased rent contrary to
regulations—read newspaper about expiry of related legislation—mistakenly
thought it was the applicable legislation mistake of law (3:2))
o Mistake about effect of a document
Mistake about interpretation: Pusey v Wagner; Ex parte Wagner (travelling stock
without a permit—obtained permit in January, moved stock in August—question of
interpretation of permit mistake of law || mistake of fact if eg thought the words
of the permit said something else)
Mistake about legal effect of a certain document: R v Sheehan [2001] (operating
charter flight without appropriate clearance—mistake as to legal effect of Air
Operators Certificate mistake of law || mistake of fact if eg thought was a
different document)
o Mistake about effectiveness of authorisation: Power v Huffa (loitering in a public place—
illegal demonstration—called senator for permission to stay—mistake that senator had
authority to allow them to stay mistake of law)
BUT note if in relation to property → s22(3): R v Waine Keane JA at [30] (wilful
damage to property—painting symbols on huts—told that had permission
mistake that had consent of person believed to be owner → defence applied)
Compound Mistake of Fact & Law → conflicting views
o Mistake of fact: Thomas v R (HCA 1937)
o Mistake of law: Bower v Huffa (SASC 1976)
Andrew Trotter
LWB239 Criminal Responsibility Andrew Trotter
LWB239 Criminal Responsibility M ISTAKE OF L AW : s22(1)
Generally
Ignorance of the law is no excuse—unless knowledge of the law an element of the offence: s22(1)
(Ignorance of the law does not afford any excuse for an act or omission which would otherwise
constitute an offence, unless knowledge of the law by the offender is expressly declared to be an
element of the offence)
Rationale: Iannella v French (1968) per Windeyer J
• Criminal law punishes wrong, rather than creating it – mala in se
o Consistent with purposes of criminal law such as deterrence & retribution
o Cannot allow criminals to rely on self-serving constructions of the law: Ostrowski v
Palmer Callinan and Heydon JJ at [85]
• Less convincing wrt government regulatory scheme offences: mala prohibita (eg drive on the
left-hand side of the road—nothing inherently wrong about driving on the right): Ostrowski v
Palmer Gleeson CJ & Kirby J at [2]
Exceptions
• Excuses—Onus on the defendant to raise some evidence, on R to negative BRD
o reasonable doubt that the accused honestly believed he was entitled to do the act with
respect to the property → must acquit: Pollard
Claims of Right: s22(2)
But a person is not criminally responsible,
• as for an offence relating to property, for
• an act done or omitted to be done by the person with respect to any property
• in the exercise of an honest claim of right and
• without intention to defraud.
1. An offence relating to property
• “Relating to Property”
Old narrow view—interference with another’s property rights: Pearce v Paskov (1968)
(possession of undersized fish prohibition in the interests of natural environment—not
interference with other person’s property → not ‘offence relating to property’ → no
defence available)
Current broader view—any act involving property: Walden v Hensler (1987) (Cf. Brennan
J) (keeping fauna without a licence—aboriginal in possession of dead turkey for tucker &
chick for pet—had permission to go hunting—did not know it was illegal to keep a turkey
animal = property || Brennan J: only where infringing another person’s rights in property
| Dawson J: s22(3) impliedly excluded by Fauna Act as general prohibition irrespective of
property rights)
• “Property”—has meaning in s1 of the Code—anything capable of being the subject of
ownership: Stevenson v Yasso per McPherson JA at [99]
o Includes animals: Walden v Hensler (1987)
• Examples—
o robbery
o burglary
o unlawful use of a motor vehicle
o wilful damage to property: R v Waine (2005) (wilful damage to property—painting
symbols on huts—told that had permission huts = property → defence applied)
Andrew Trotter
LWB239 Criminal Responsibility o Unlawful possession of property: Stevenson v Yasso (2006) (commercial fishing
apparatus—fishing net property)
Andrew Trotter
LWB239 Criminal Responsibility 2. Act done in relation to property
• Act—
o bodily act of which the accused has control: Falconer
o composite set of movements which constitute the elements of the offence but not the
consequences of the acts: Murray
• eg—killing bird, taking chick, taking car.
3. In the exercise of an honest claim of right
• Need only be honest, not reasonable as under s24: Clarkson v Aspinall (1950); King v
Bernhard (need not be reasonable or based in law or in fact)
o BUT reasonableness may be taken into account in determining whether it was actually
held: Clarkson v Aspinall (1950)
o Honest—where honestly believes himself to be entitled to do what he is doing: Pollard
per Gibbs J at 29
• Must be a claim of right in law, not in moral, religious or cultural code: Walden v Hensler
(1987) per Gaudron J
• Test—Such that if they had the rights they claimed, it would not breach law—
o Consent that would have meant it was no offence → sufficient: R v Waine Keane JA at
[30] (wilful damage to property—painting symbols on huts—told that had permission
mistake that had consent of person believed to be owner → defence applied)
o Rights that would not excuse from particular offence → not sufficient: Stevenson v
Yasso (2006) (commercial fishing apparatus—fishing net—believed had rights under
aboriginal tradition to catch fish did not change fact that possessing illegally || cf. if
charged with fishing illegally)
• Need not be ownership or another right recognised by law: R v Waine Keane JA at [23]
(authorisation)
• Must be a current right, not one that could have been or will be obtained: Pollard (unlawful use
of MV—believed the owner would have consented if asked | would not swear that he believed
he was entitled to use it no claim of right)
4. Without intent to defraud
• Note claim of right must be honest
• Defraud = to deprive another of property by deceit: Balcombe v de Simoni (1972)
• Excuse not available if accused had intention to produce a consequence that i
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