LWB232 Criminal Law and Procedure
Murray McCarthy
Brett Scrymgeour
Claire Stitz
1
WEEK 4
MISTAKES AND CLAIMS OF RIGHT
INTRODUCTION
 Mistake as an excuse is argued where the accused person would be otherwise liable for the offence, but
has made either a mistake of fact or is acting in the exercise of an honest claim of right.
 Deciding whether an accused has one of these excuses available can be difficult due to the necessary
distinction between mistakes of law and fact.
ELEMENT 1: Identify the issue (mistake)
ELEMENT 2: Is the mistake one of fact or law?


A mistake of law - NO EXCUSE,
whereas a mistake of fact - POSSIBLY ABLE TO EXCUSE.
e.g. Legislation states that land cannot be mined within a 10 mile radius of the Daintree.
1. If a developer who holds a lease over land wishes to mine the area and legislation prohibits development
within , it would be a mistake of fact if s/he was unsure of the boundaries of the lease.
Thomas v. R
Facts:
- Thomas was married to Agnes who beforehand was married to Higgins.
- Higgins was still married to Agnes at the time of marrying Thomas. Therefore, H filed for divorce.
- Agnes began to deny the validity of the marriage with Thomas, asserting that she was not divorced from
Higgins as there ‘had not been an entry in the court’. She then ran off with another man.
- Thomas met Bessie, and explained the situation to her. Thomas then proceeded to marry Bessie, and was
prosecuted with bigamy.
- In his defence, Thomas argued that at the time of his second marriage to B he honestly and reasonably
thought he was a single man.
Issue:
Was his bigamous marriage the result of a mistake of fact or a mistake of law?
Held:
Majority:
- Thomas had made a specific mistake as to a fact of whether the divorce had been made absolute.
- proposed a general proposition differing to that in Power v. Huffa - where there is a mixed question of
fact and law - a mistake of fact exists.
Iannella v. French
Facts:
- Iannella was the owner of a boarding house in SA, which was subject to a rent restriction of 18s & 6p per
week under the Housing Improvement Act.
- Iannella was aware of this rent restriction, and complied with it for several years. Then the Landlord
Control of Tenants Act was passed, and Iannella read newspaper reports that indicated that tenants would
lose protection under the original Act.
- As a result, Iannella believed that he was then free to charge increased rent and terminate tenancies.
- Iannella was prosecuted under the 1st Act, and argued that he was excused by a mistake of fact.
Held:
Barwick @ 97, Windeyer @ 114:
- It was a mistake of fact. The passing of an Act is a question of fact, whereas the changes that Act makes
to the law involves a question of law.
Part 3 – Mistakes and Claims of Rights
LWB232 Criminal Law and Procedure
Murray McCarthy
2
Brett Scrymgeour
Claire Stitz
- If it was a mistake as to whether a particular law applied to the premises it was a mistake of law. If it was
a mistake as to whether a specific notice issued under that Act was in existence then it was a mistake of
fact.
- Iannella was thus probably mistaken as to the specific matter - as to the rent charge on his premises,
which was a mistake of fact.
Taylor & Owen JJ:
- Thought that there had been a mistake as to law - Iannella’s mistake was one as to the existence or nonexistence of a statute - a mistake as to the state of the general law, and nothing more.
Power v. Huffa
Facts:
- Huffa had organised a demonstration, which the police had ordered to disassemble. Huffa rang the
Minister for Aboriginal Affairs, then returned to the group and urged them to ignore police.
- The appellant was charged with an offence consisting of ‘failing to cease loitering’ and failure to leave a
place where a breach of the peace was occurring.
- She argued that she had made a mistake of fact in believing that she was acting under orders from the
Minister at the time.
- The Minister had told her she had the right to demonstrate, despite having no authority to advise on the
matter.
Issue:
- Had Huffa acted under a mistake of fact or law?
Held:
- Huffa’s mistake was as to the power of the Minister to lawfully give instructions which ousted the
operation of the act under which she was charged with - a mistake of law and no excuse. A mistake as to
a compound event consisting of law and fact is a mistake of law.
TEST from Herhily & Kenny: agree with Bray CJ.
1. If one is mistaken as to the existence of observable facts, then it is clearly a
mistake of fact;
2. If one is mistaken as to the legal conclusion to be drawn from observable facts, then
it is a mistake of law.


IF MISTAKE OF LAW GO TO ELEMENT 3
IF MISTAKE OF FACT GO TO ELEMENT 5
ELEMENT 3: Mistake of Law

A person may not rely on ignorance or mistake of law as an excuse from criminal responsibility.
22. Ignorance of law: Bona fide claim of right. (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.
Hughes v. Hi-Way Ads
Facts:
- Hi-way was prosecuted under an obscure City Council rule, and argued that they couldn’t possibly know
of the provision.
Held:
- The argument was rejected - 22(1) - ignorance of the law is no excuse.
Part 3 – Mistakes and Claims of Rights
LWB232 Criminal Law and Procedure
Murray McCarthy
Brett Scrymgeour
Claire Stitz
3
ELEMENT 4: Exceptions to Mistake of Law (no excuse)
Exception One: HONEST CLAIM OF RIGHT

S.22(2) is an exception to the general rule that ignorance of the law is no excuse.
22. (2) .. a person is not criminally responsible, as for an offence relating to property, for an act done
or omitted to be done by him with respect to any property in the exercise of an honest claim of right
and without intention to defraud.
The elements of that offence are as follows:
1. Offences relating to property.
2. Acts done in relation to property
3. In the exercise of an honest claim of right
4. Without intention to defraud
SUB-ELEMENT 1. Offences relating to property

What is an offence relating to property?
Structure for determination:
a) Is it in Part 6 of the CC (Offences relating to property, e.g. stealing, misappropriation, fraud)
b) If not, does it have the characteristics considered in Pearce v. Paskov
c) If not, consider whether or not it is something capable of ownership (see s.1). If it is capable of being
owned and you’re not allowed to own it, then it may satisfy this section in that element: Walden v.
Hensler
d) Judgments of Walden v. Hensler
a) Is it in Part 6 of the CC (Offences relating to property, e.g. stealing, misappropriation, fraud)
b) If NOT, does it have the characteristics considered in Part 6:
Pearce v. Pascov
Facts
- A licensed fisherman was charged with being in possession of an undersized and underweight crayfish in
contravention of the Fisheries Act (WA).
- P argued/claimed an honest claim of right under 22(2) equiv.
Issue:
- Was it an ‘offence relating to property’?
Held:
- The offence was not relating to property, and 22(2) could not apply. They do not involve as an element
any interference by the person charged with the proprietary or possessory rights of others.
- “Offences relating to property” in s.22(2) should be construed as applying EXCLUSIVELY to the
offences of the CHARACTER of those defined in PART 6 OF THE CODE (stealing, misappropriation,
unlawful use etc).
- If the offence is not one in Part 6, look to the following CHARACTERISTICS:
Part 3 – Mistakes and Claims of Rights
LWB232 Criminal Law and Procedure
Murray McCarthy
4
Brett Scrymgeour
Claire Stitz
Wrongful or fraudulent interference with the property of OTHERS involving deprivation of or
INTERFERENCE with the PROPRIETORY or POSSESSORY RIGHT of the owner or the person in
possession, or DESTRUCTION OR DAMAGE of the property of others.
c) If NOT, is it capable of ownership?
Walden v. Hensler
Facts
- The HC extended the grouping of things relating to property.
- The Def was charged with taking ‘fauna’ without a licence - he was an Aborigine who had taken a bush
turkey.
- He argued that his people had done so for several millennia (custom), and therefore was excused under
s.22(2).
Held:
As to whether the offence ‘related to property’:
Brennan J:
- adopted the narrow interpretation - offence had to have the characteristics of an offence in Part 6, ie.
offence must cause another to part with property.
- The purpose of the Act was to protect fauna from destruction or control rather than the protection of the
Crown’s or any other person’s rights over it. The Act was not one relating to property.
Deane J:
- adopted wider view - an offence of keeping certain property without a permit was an offence relating to
property.
Toohey J:
- whenever an offence can be truly said to relate to property is when the property is something that answers
the description of property.
- s.22 should be read narrowly or restrictively.
- “Property” is defined in s.1 CC as ‘everything animate or inanimate capable of being the subject of
ownership.
Gaudron J:
- examined the question of whether a subject is capable of ownership and ‘that the right asserted be a right
to do or to refrain from doing an act in relation to property’.
- focus on the possibility that the Crown in whom the fauna was vested, was a form of ownership, which
necessarily involved the notion that fauna is capable of being the subject of ownership.
SUB-ELEMENT 2: “act done with respect to property”?
Falconer
- The word ‘act’ ins.22 was to be interpreted in the same way as ‘act’ in s.23, ie. relating to the
PHYSICAL ACTS of a person.
SUB-ELEMENT 3: What is the exercise of an honest claim of right?
Clarkson v. Aspinall at 89
- The app. (C) was charged with unlawfully using 2 heifers, the property of A. He claimed and introduced
evidence to establish that the heifers were his or his wife’s own.
Held:
- That a person shall not be criminally responsible as for an offence relating to property if the act to be
done is in the exercise of an honest claim of right.
Part 3 – Mistakes and Claims of Rights
LWB232 Criminal Law and Procedure
Murray McCarthy
Brett Scrymgeour
Claire Stitz
5
Pollard
- The Acc argued that he believed that the owner of the MV would have consented to his using of it had he
asked.
- The ‘act’ was the taking of the car, and the offence was a property offence as fell under Pt 6 CC.
Held
- Per Gibbs: This was an honest belief because he honestly believed himself to be entitled to do what
he was doing. It did not matter that he was completely mistaken as to the law.
- P was excused from criminal responsibility, and the conviction was quashed.
- his belief in what the owner of the MV would have said could not by itself establish a ‘claim of right’
under s.22, as a ‘claim of right’ means a claim of an EXISTING right concerning the property and
not what may be acquired in the future.
Walsh v. R
Facts:
- W was charged with the ‘wilful and unlawful killing’ of an ox’ which was the property of another.
- W was the owner of land with avocado trees which had been damaged by the cattle straying.
- A defence under 22(2) would be available to him if he honestly believed that he was entitled to commit
the killing. W claimed a right to protect his property based upon his ownership of it.
Held:
- 22(2) refers to a right relating to the property (of another) to which the charge relates, not the defendant’s
own property.
Williams
- “Honest” is subjective
SUB-ELEMENT 4: “without intention to defraud”?
R v. Hopely
- H sought the refund of payments
- His claim of right was genuine, however he had forged documents and therefore the claim was defeated he used the documents to defraud the tribunal.
Balcome v. de Simoni
- Defines “defrauding” as depriving by deceit.
- Must not behave in dishonest way or claim will be defeated.
EXCEPTION TWO: Statutory Instruments
22. Ignorance of law: Bona fide claim of right.
(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
him and had not been published or otherwise reasonably made available or known to the public or
those persons likely to be affected by it.
Sawyer
Facts:
- S was charged as a prisoner for having money hidden on his person in contravention of Rule 14 of the
Corrective Services Act.
- The rules were not published in the Government Gazette. S sought to raise an excuse under s.22(3) & (4).
Part 3 – Mistakes and Claims of Rights
LWB232 Criminal Law and Procedure
Murray McCarthy
Brett Scrymgeour
Claire Stitz
6
Held:
- To determine criminal responsibility, 2 ISSUES were raised:
First issue:
- To raise an excuse under 22(3), it is necessary to show 1st there is a breach of statutory instrument
as DISTINCT from an Act.
Second issue:
- Having surmounted the evidentiary burden, the legal onus shifts to the Crown to negative 22(3)
BRD by showing either :
1) the Rule was known to Sawyer; or
2) that the Rule (instrument) is either published or notified in the Gazette; or
3) that the Rule had otherwise been reasonably made available to the prisoner; or
4) that the Rule had been reasonably made known to the prisoners.
- The Crown could not negative 22(3). Despite Sawyer etc. knowing generally of the prohibition on
possessing money, it was the rule (statutory instrument) that had to be known to the prisoners.
- There was not even a copy of the rule in the prison, nor was it on any notice boards or distributed.
Definition of “Publish”
22. Ignorance of law: Bona fide claim of right.
(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.
ELEMENT 5: Mistake of Fact
MISTAKE OF FACT AND CRIMINAL RESPONSIBILITY
24. Mistake of fact. 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 he believed to exist.
ONUS OF PROOF


S 24 is an EXCUSE, so the accused has an evidential burden .
The onus then shifts to the Crown to negative the defence Beyond Reasonable Doubt.
Operation of s 24
 Section 24 is not a complete excuse. The accused is not criminally responsible for an act/omission to any
greater extent than if the real state of things had been such as the person believed to exist.
Example of operation of s 24
 Benny the Burglar decides to go to 24 X street as he heard there was $2000 to steal, but he went to the
wrong house.
- still guilty of housebreaking - 24 does not afford Benny an excuse.
Part 3 – Mistakes and Claims of Rights
LWB232 Criminal Law and Procedure
Murray McCarthy
Brett Scrymgeour
Claire Stitz
7
SUB-ELEMENTS OF S 24:
(1)
(2)
(3)
(4)
A person does or omits to do an act
under a mistaken belief
the belief must be honest AND reasonable
The belief must be as to the existence of any state of things.
SUB-ELEMENT 1: Act or omission
= act or omission charged: Larson v. GJ Coles
SUB-ELEMENT 2: Mistaken belief
 Must be an actual, not a possible belief: Loveday at 271.
 The onus is on the defendant to show that there is before the court evidence of mistake for it to be
considered: Duncan at 12.
Larson v. GJ Coles
Facts:
- Qld Health Act - false labelling alleged against Coles - false dates of packaging in contravention of the
Act. Coles claimed they had an honest and reasonable but mistaken belief as to the roll of labels to be
used.
Held:
- Connolly J – There has to be some evidence of a belief in the servant who made the mistake that the
labels in question were ‘used by’ labels, and not merely evidence of a state of affairs in which no
attention was given to the matter whether for good reason or bad..
- A daily check of labels had failed to identify the mistake - Coles were liable.
- The mistake was not reasonable in that there was no system in place for checking the information which
had been printed on the meet packages after they had been displayed for sale.
ELEMENT 3: Belief must be honest AND reasonable
DPP v. Morgan
Facts:
- Husband invited his friends to rape his wife.
Held:
- Friends could not be guilty of rape if they believed she did consent, even if the jury did decide there were
no reasonable grounds for that belief.
 “Honest” – subjective test. TEST: did the person honestly hold the belief?
 “Reasonable” - what is reasonable is a question of fact for the jury in every case.


The onus is on the Crown to negative the belief.
There must be a basis for the belief.
Anderson v. Nystrom
Facts:
- N was charged under the Transport Regulations - drove 15 miles without a licence. (a license was needed
after 15 miles.) N thought the journey was under 15 miles.
- After 2 miles N was stopped by the Police, who then followed him for all of the 15 miles. N alleged that
he had not used a speedometer.
Held:
- N did have a reasonable belief, even though it was inaccurate. This could have been based in the
speedometer. Belief did not cease to be reasonable just because he was told.?
Part 3 – Mistakes and Claims of Rights
LWB232 Criminal Law and Procedure
-
Murray McCarthy
Brett Scrymgeour
Claire Stitz
Section 24 was available as he believed the road was not greater than 15 miles.
SUB-ELEMENT 4:
8
What is a “State of Things”?
Gould v. Barnes
- Dangerous act killing- abortion
- Sought to se s 24:
Held:
- If an abortionist had gone to the chemist and asked for a harmless mixture and received a surf/dettol mix,
then 24 would be available.
- However G and B knew of the contents. Their only mistake was as to the consequences which flow from
the act, not as to the existence of a state of things.
Sancoff
Facts:
- S was convicted by Mag of publishing obscene material. He argued that publication was not obscene, but
if they were found to be obscene - excuse under 24.
- The book had a clear label of its contents and pictures and it was undoubtedly ‘obscene’.
Held:
- S 24 was not available - there was no mistake as to the content of the book, and therefore no mistake as to
existence of a state of things.
SUB-ELEMENT 5: CONCLUSION

If there is an honest and reasonable, but mistaken, belief in the existence of any state of things - then the
person is not criminally responsible for the act or omission to any greater extent than if the real state of
things had been such as he believed to exist.
EXCLUSION of s.24
s 24 2nd para:
“The operation of this rule may be excluded by the express or implied provisions of the law
relating to the subject”.
Geraldton Fishermens Co-op v. Munro: cannot be excluded merely by the subject matter of legislation.
R v. Clare:
- The def, a policeman, sought to use s. 24 after found in possession of heroin. Initially stated that ‘didn’t
know’ what he was carrying.
- Upon further questioning as to what he thought it was - answered that thought it was perfume base.
Held:
Per Davies J at 6464:
- T.J. should have directed the jury that it was sufficient that the accused knew he had in his physical
control a quantity of white powder.
- t was then for the accused pursuant to s.24 as modified by s.57(d) DMA to show he had honestly and
reasonably believed it was perfume base.
- If the Magistrate had given that direction - no doubt that C would have been convicted.
Part 3 – Mistakes and Claims of Rights