Criminal Law and Procedure
LWB232
Week 4 - Mistake
Objectives of lecture on mistake
(week 4)
 Become familiar with the excuse of mistake and when it is
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


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available
Understand the rationale behind the rule regarding
ignorance of the law
Be able to distinguish between mistakes of law and fact
Be able to apply the excuse of honest claim of right
Be able to apply the partial excuse of mistake of fact
Know the exceptions to this excuse
General
 Section 22 and 24
 Section 22(1) deals with
ignorance of law, s 22(2)
with honest claim of right,
s 22(3) statutory
instrument exception
 s 24 mistake of fact
(Overview) Three types of
mistake
(1) Mistake of law s 22(1) (no excuse unless
statutory instrument exception)
Issue: What is a mistake of law?
(2) Mistake of fact s 24 (excuse in certain
circumstances)
Issue: What is a mistake of fact?
(3) Honest claim of right s 22(2)
S 22 Mistake of law
22.(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.
 Ignorantia juris neminem excusat - ignorance of the law is
no excuse - enacted in s 22(1)
 Does not mean that deemed to know the law, but if do not
know it - no excuse - McKechnie v Jones (1976) 13 SASR
184, 187
 Policy behind this rule?
Statutory Instrument exception s
22
(3) A person is not criminally responsible for an act or omission
done or made in contravention of a statutory instrument if, at the
time of doing or making it, the statutory instrument was not
known to the person and had not been published or otherwise
reasonably made available or known to the public or those
persons likely to be affected by it.
(4) In this section—
“publish”—
(a) in relation to a statutory instrument that is subordinate
legislation—means notify in accordance with section 40
(Notification) of the Statutory Instruments Act 1992; and
(b) in relation to a statutory instrument that is not subordinate
legislation—means publish in the Gazette.
Statutory Instrument exception
 Not criminally responsible for act or omission done in
contravention of statutory instrument if, at the time of
doing or making it:
– the statutory instrument was NOT KNOWN to the
person; AND
– HAD NOT BEEN PUBLISHED OR OTHERWISE
REASONABLY MADE AVAILABLE OR KNOWN to
the public or those persons likely to be affected by it.
– “Statutory instrument”: see def in Statutory Instruments
Act 1992 (Qld); includes regulations, rules, by-laws and
the like: NOT ACTS.
Statutory Instruments
 See Sawyer v Hogan; ex parte Sawyer [1992] 1
Qd R 32 - ( Kenny para 8.11)
 Note Regulatory Offences Act arrangements: see s
36 Code.
– “Except for ss 22(3), 29 and 31, this chapter does not
apply to regulatory offences” ie: s 22(3) is the
exception and does apply to the Regulatory Offences
Act
– HOWEVER: at present, there are NO statutory
instruments created under that Act.
Law or fact?
 Why important?
 No one test - see discussion in following main cases.
 Thomas v R (1937) 59 CLR 279: issue of validity of
dissolution of marriage - facts - H Ct split
 Ianella v French (1967-68) 119 CLR 84 - rent control
legislation - H Ct split
 Power v Huffa (1976) SASR 337 - loitering in public
place during demonstration
Thomas v R (1937) 59 CLR 279
 issue of validity of dissolution of marriage
 Facts
 Held by majority of High Court that mistake was
one of fact and therefore Thomas had an excuse to
the charge of bigamy.
 Dixon J (with whom Rich J agreed) held if
mistake is as to existence of compound event
consisting of law and fact, in general mistake is
fact and not law
Ianella v French
 1968 HC - split again
 Offences concerning rental of dwelling
house
 Mistake as to whether rent control
legislation in SA applied.
 2 JJ of High Court said law, and 2 fact
(decision did not turn on this point)
 Better view: mistake was of law
Power v Huffa (1976) 14 SASR
337
 Charge of loitering in a public place under SA
Police Act - demonstration on Aboriginal rights phone call to Federal Minister of Aboriginal
Affairs - returned to demonstration
 Mistake of fact or law?
 Held Bray CJ: if one of the components of the
belief is law, mistake is one of law (at 345)
Other cases on fact and law:
 Pusey v Wagner [1922] St R Qd 181 Charge of travelling
stock without permit - had earlier permit and thought still
valid
 Held that mistake was not as to actual existence of permit,
but whether it applied at the later date - question of
interpretation of the permit - question of law
 Similar conclusion to earlier stock case of Beetham v
Tremearne (1905) 2 CLR 582 - held mistake was as to
effect of the document - not mistake of fact.
Cases on fact and law (cont)
 Loveday v Ayre 1955 Qld FC
 Charge of using particular timber in building - thought that
treatment used was an approved treatment under Act - not
the approved treatment
 Held on appeal against conviction that s 24 available as a
mistake of fact
 Cf recent statement by Pincus JA in R v Sheehan [1999]
QCA 461 - question of whether appellant (operated
Crossroads Aviation) authorised to operate commercial
charter flight. Claimed operating under authority of AOC
issued to Alpine Aviation.
Conclusion on distinguishing fact
and law
 No one definite test to apply, simple approach not possible
 Must compare and contrast approaches taken in previous
cases with present facts - the facts are very important  See wording s 22(1) no excuse if mistake due to ignorance
of the law
 If mistake is compound one of fact and law (often is),
compare and apply tests in Thomas and Power v Huffa
 Kenny suggests (based on Power v Huffa) that if mistake is
as to existence of observable facts then is a mistake of fact,
but if mistaken as to legal conclusion to be drawn from
observable facts then mistake of law. [But note that this
test cannot be applied to all fact situations.]
Section 22(2) Honest claim of
right
(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.
Honest claim of right - s 22(2)
 Can be a mistake of fact or law
 ‘Operates as an excuse - accused must surmount an
evidential burden - onus on Crown to negative the
existence of the claim beyond reasonable doubt
 4 elements:
– offence relating to property
– act done or omitted to be done in relation to property
– in the exercise of an honest claim of right
– without intention to defraud
(1) Offence relating to property
 Pearce v Paskov : WA 1968 : Virtue J
 offences of being in possession of undersized
crayfish and undersized crayfish tails contra to WA
Fisheries Act.
 Held these offences NOT relating to property
because no element of interference with
possessory or proprietary rights of others - acts
injurious to public in general - s 22(2) N/A.
Offence relating to property
(cont)
 Olsen v Grain Sorghum Marketing Board
[1962] Qd R 58
 Charged with buying commodity from
person other than Board - Ct held ( no real
reasons given) that offence not one in
relation to property.
Offence relating to property
(cont)
 Walden v Hensler (1987) 163 CLR 561
 indigenous person charged with keeping protected fauna
without permit(2 Australian bustards - plain turkeys) under Fauna Conservation Act - bush tucker - believed
entitled to do so - raised s 22(2)
 Majority of the High Court: Brennan, Dawson and Deane
JJ held that s 22(2) not made out. Toohey and Gaudron JJ
held that it was available and conviction should be
quashed, but agreed with majority that absolute discharge
under s 657A be granted (no conviction imposed).
 See also comments on “property” in Yanner v Eaton [1999]
HCA 53.
Element 2 - Act done (or omitted
to be done) in relation to property
 Act is read in the same way as in Falconer’s
case, ie physical action of the accused.
 See Olsen (ante)
Element 3 - In the exercise of an
honest claim of right
 If belief honestly held, does not matter how unreasonable:
Clarkson v Aspinall [1950] St R Qd 79. (cf s 24)
 See Pollard 1962 Qld FC - charge of uumv - resided in
boarding house - took friend’s car so could attend Speech
night at Wynnum High - thought friend would not object would have given permission if asked.
 In Walden v Hensler, only considered by 2 minority
judges, Toohey and Gaudron JJ. Both applied Pollard, and
held that it was an honest claim of right: he honestly
believed he had the right to use the plain turkeys.
Does the claim have to be
pursued in a lawful way?
 No requirement that the claim be pursued in a
reasonable way: Skivington 1968 UK: charged
with robbery of firm while collecting wife’s pay
packet - honest claim of right - held did not have
to show honest belief that he was entitled to take
the money in way he did - acquitted or robbery but G of assault.
Does the claim have to be
founded in law or fact?
 Bernhard 1938 English CA held that person has
claim of right if honestly asserting what he
believes to be honest claim, even if unfounded in
law or fact.
 Brennan J in Walden v Hensler: not necessary that
the claim be one recognised by law (NB: Brennan
was in the majority who rejected the claim)
 “Honest”: see R v Williams [1988] 1 Qd R 289
Element 4: Without intention to
defraud
 If the honest claim of right has been pursued dishonestly -
ie with intent to defraud, then element 4 will defeat the
honest claim of right
 See Balcombe v De Simoni - to defraud is to deprive by
deceit - by deceit to induce a course of action
 See also Hopley [1915] 11 Cr App R 248 (forgery case):
different forms of intent to defraud - one is where no claim
at all, Cf where genuine claim which could be proved if
adopted proper means, but uses documents not genuine could be intent to defraud
Section 24 Criminal Code
(1) 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 such
as the person believed to exist.
(2) The operation of this rule may be excluded by the
express or implied provisions of the law relating to
the subject.
An excuse...
Mistake of fact is an
EXCUSE. The
accused must
surmount an evidential
burden. The onus then
shifts to the Crown to
negative the existence
of the excuse, beyond
reasonable doubt.
Authorities on onus of proof
 Loveday v Ayre - 1955 - Qld FC - Philp J
declared it an excuse - other judges not
committing
 Followed in Brimblecombe v Duncan 1958 Qld FC
 Brimblecombe followed in Geraldton
Fishermen’s Co-op Ltd v Munro WA FC
But...
 It is not a complete excuse
 The accused is not criminally responsible for the
act or omission to any greater extent than if the
real state of things had been such as the person
believed to exist.
 ie, look at what the person believed to exist, and
assess what would have been their criminal
liability if the belief were real.
An example of the application of
s 24
 Benny the Bungling Burglar decides to go
to no. 56 Richperson Street as he has heard
that there is $200,000 in antiques at the
house.
 Unfortunately, he misreads the numbers,
and breaks into no. 65 instead, where they
ran out of money buying the house, and
have no furniture, let alone antiques
 Is Benny G of housebreaking?
However cf Howard the hapless
husband....
 Howard collects wife from airport -
business trip - sees her in distance - sneaks
up behind her and gives her bear hug
 Complete stranger has Howard charged
with sexual assault
 Is Howard guilty of assault?
Elements
 (1) Does or omits to do an act
– act or omission: Larson v GJ Coles
 (2) Under a mistaken belief
– Actual, not possible: Loveday v Ayre
– See also re onus: Brimblecombe v Duncan, Larson v GJ
Coles
 (3) The belief must be honest AND reasonable Honest:
subjective Cf DPP v Morgan
– Reasonable: What is reasonable is a question of fact for the jury in
every case.
– Must be a basis for the belief - see eg, Anderson v Nystrom Qld FC
1941
(4) The belief must be as to the
existence of any state of things
 Meaning of “state of things” in this context
-see R v Gould and Barnes
 Successful application: see Harmer v Grace
1980 Qld FC
 NOTE: Harmer v Grace now overturned by
s 79(12) Transport Operations (Road Use
Management) Act 1995 (Qld).
 See also Sancoff v Holford, ex parte
Holford (at 27)
Exclusions to s 24
 See s24(2) “The operation of this rule may
be excluded by the express or implied
provisions of the law relating to the subject”
 S 24 cannot be excluded merely by the
subject matter of the legislation: Geraldton
Fisherman’s Co-operative v Munro
Examples of exclusions:
 Transport Operations (Road Use
Management Act) 1995 (Qld)
 All regulatory offences - see s 36 Code
 Drugs Misuse Act s 57(d)
– “the operation of s 24 of the CC is excluded
unless that person shows an honest and
reasonable belief in the existence of any state of
things material to the charge”
 See R v Clare 1994 Qld CA
The end of mistake... More
defences next week...