The defence of honest and reasonable mistake of fact is a defence open in many statutory offences and requires the defendant to meet what is called an “evidentiary burden”.
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The defence has three elements:
- The mistake must be an honest one
- The belief forming the basis of that mistake must have been a reasonable belief to have held in the circumstances
- The mistake must be one relating to fact and not law
Offences in which the defence is available
The defence generally is available in what are known as strict liability offences.
The defence is not strictly speaking a “defence”. By establishing that a person had an honest and reasonable mistaken belief of fact, the prosecution has been unable to establish all of the “essential ingredients” of a charge. The evidence is insufficient to establish that the accused had knowledge of the presence of some essential factual ingredient.
The defence in practice
The general test is:
- did the accused have an honest and reasonable mistaken belief in a certain state of things which, if that state of things existed, the defendant’s actions would have been innocent.
It is for the accused to raise this defence, and accordingly the accused must satisfy an evidential burden, on the balance of probabilities. If the accused meets that burden on the balance of probabilities, the prosecution then bears a burden beyond reasonable doubt to establish that the belief was not held, or that it was not a reasonable belief to hold in the circumstances. The first of those considerations is a subjective assessment, whether the belief is honestly held. The second is an objective assessment, whether the belief was reasonable in the circumstances.