Our criminal defence lawyers regularly rely on the defence of honest and reasonable mistake to secure not guilty verdicts in the Local Court, District Court and Supreme Court.
An honest and reasonable mistake of fact is a powerful legal defence in New South Wales. It recognises that a person should be found guilty of a criminal offence if they acted under a genuine and reasonable misunderstanding of the facts.
What is an honest and reasonable mistake?
The defence applies where:
- You made a mistake about a fact (not the law),
- The mistake was honestly held, and
- The mistake was reasonable in the circumstances.
In New South Wales, the defence is only available for strict liability offences, as proof of intent is not required.
If successfully raised, the law treats your actions as though the facts were as you believed. For example:
- Believing you had permission to engage in conduct,
- Believing the property belonged to you,
- Acting under a mistaken belief.
Courts have consistently held that an accused should not be criminally responsible where their actions were based on a reasonable misunderstanding of the factual situation.
How do we defend honest and reasonable mistake cases?
Our criminal defence lawyers take a strategic and evidence-based approach by:
- Carefully identifying the mistake of fact relied upon,
- Gathering evidence to demonstrate the belief was genuinely held,
- Establish a clear timeline of events to demonstrate when and how your mistaken belief was formed,
- Highlight the circumstances that made the belief reasonable,
- Gather relevant evidence such as: Witness statements, expert opinions, and records and notifications.
The courts will then closely examine the surrounding circumstances.
What is the legal test for an honest and reasonable mistake?
The elements of honest and reasonable belief must be satisfied:
Honest belief
- The belief must be genuinely held in your mind.
- It does not need to be correct, but it must be real.
Reasonable belief
- The belief must be one that a reasonable person in your position could have held.
- The courts assess this objectively.
The mistake must be one relating to facts and not law.
Reasonable doubt
You must raise evidence of the mistake, and the prosecution must then disprove the defence beyond a reasonable doubt. If the court is left with a reasonable possibility that your mistake was honest and reasonable, you must be found not guilty.
Contact us
Australian Criminal Law Group offers free first appointments, in person at Sydney CBD, Parramatta, and Blacktown, as well as via phone and video.
To book your free first conference with the Australian Criminal Law Group, call (02) 8815 8167 or submit a website enquiry.
Contact us now.