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Honest and reasonable mistake of fact applies is a defence available to offences where the prosecution is not required to prove that an accused intended to commit the crime in order to make out a case (strict liability offences).

An honest and reasonable mistake of fact occurs where an Accused person has committed an offence labouring under an honest belief that is reasonable but mistaken and as a consequence of that mistake commits a criminal offence.

The rationale behind the defence is that if the honest and reasonable mistake of fact as to the circumstances actually existed, then no criminal offence was committed. As such, the Accused person is not liable for their offending. A common example of when honest and reasonable mistake of fact is raised is in circumstances where someone was unaware that they were suspended from driving and as a consequence drove whilst suspended.

In order to raise honest and reasonable mistake of fact an Accused person must put forward some evidence that the defence, but once raised, the onus lies on the prosecution to prove that no such belief was held by the defendant.

Other defences

Our client defaulted on the payment of a traffic fine which led the RTA to suspend his licence for a period of 3 months. During the 3 month period our client was caught driving in Croydon, Sydney and charged with driving whilst suspended.

Our client argued that he never received the letter from the RTA notifying him that his licence had been suspended. During the time the letter was said to be sent, our client had moved house and the letter was sent to his previous address.

Our client gave evidence at the hearing at Burwood Local Court of his move and called his housemate as a witness who also confirmed the time of the move.

Our solicitor tendered our client’s phone records showing numerous phone calls were made to the suburb which he had moved to at the time the letter was sent.

Her Honour Magistrate Barkell found our client not guilty due to an honest and reasonable mistake of fact because he was unaware his licence had been suspended.

Our client was charged with a low range drink driving offence. He was advised by police to complete a ‘Notice of Pleading’ form and that the case would be dealt with by the Court in his absence.

His matter came before Kogarah Local Court where he was disqualified from driving for a period of 6 months and received a $600.00 fine. However, our client never received notice from the Court of these orders as he had been excused. Despite contacting the Court to confirm the outcome he was not notified of his licence disqualification or fine.

Unknowingly, our client drove without a licence and was charged with driving whilst disqualified.

At the hearing before the Downing Centre Local Court our solicitor made strong submissions that our client honestly did not know he had been disqualified from driving, that he had contacted the court and tendered evidence that the fine remained outstanding.

The Magistrate, albeit reluctantly, found our client not guilty due to an honest and reasonable mistake.

We appeared for a young person whom had been represented by another law firm for a drive while suspended offence and disqualified for 1 year. He instructed us that the Magistrate had not specified that he would be disqualified from the date of court and his solicitor had told him he would receive a letter stating the date his disqualification commenced.

In the circumstances, it was highly unlikely that his mistake would be found to be reasonable so we advised him to plead guilty and argued the mistake was honest but not reasonable.

At the sentencing in the Local Court, we tendered the original Court transcript which did not state he could not drive.

Our solicitor made oral submissions that his previous solicitor had refused to provide a letter or affidavit of his advice to our client (after we contacted him on our client’s behalf).

Our solicitor tendered affidavits from our client and both his parents whom he had told he was waiting for a letter from the RTA stating the date he would be suspended from.

The Magistrate accepted that our client’s belief was honest on account of contemporaneous and constant statements to his parents that he was expecting a letter from the RTA. In addition, his parent’s compelling evidence that they would never have let him drive the car if they didn’t believe their son was being honest in his assertion that he was not disqualified.

The client received a section 10 bond without conviction or penalty for driving whilst disqualified. This was an excellent result as our client also avoided the mandatory 2 year disqualification for a second disqualified/suspended driving offence.