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). It is distinct to honest and reasonable mistake of law, which is not a defence because ignorance of the law is not an excuse. A simple example of the difference is as follows:
- If someone drove whilst there licence was suspended, knowing they were suspended but not knowing it was an offence to drive while suspended, they will be mistaken as to the law and guilty of the offence.
- If someone drove whilst there licence was suspended, knowing it was an offence to drive while suspended but not knowing that they were in fact suspended, they will be mistaken as to fact and not guilty of the offence so long as their belief was reasonable.
In simple terms, an honest and reasonable mistake of fact occurs where an Accused person has committed an offence 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.
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.