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

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...