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Week 8 Defence - Mistake (Section 22 – Ignorance of the law and claims of…
Week 8 Defence - Mistake
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Section 24 – Mistake of fact
Section 24 applies only to mistakes of fact; if the mistake is due to ignorance of the law, s 22 will apply and if an exception is not available mistake will not be an available defence.
(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.
The defendant has the evidential burden to prove they are not criminally responsible.
When this evidential burden is proved by the defendant the persuasive burden to negate the existence of s 24 and hence argue the defendant did not hold the belief or that the belief was unreasonable will shift to the prosecution
R v Lyons (1987) 24 A Crim R 298 at 299 per Williams J; and Sancoff v Holford; Ex parte Holford [1973] Qd R 25 per Williams J.
Two elements
comprise section 24: R v Wilson [2009] 1 Qd R 476; [2008] QCA 349 per McMurdo J at [20]:
(1) Defendant must hold a subjective view—their state of mind—they positively and honestly believe ‘in the existence of any state of things’
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(2) This belief must be objectively reasonable—that is the reasonable person must be able to say “yes that is a reasonable belief”.
A reasonable belief is an objective element. Objective because it looks at the mind of the defendant In addition to the belief being an honest belief, it must be a reasonable belief: Harmer v Grace [1980] Qd R 395.
The test is whether the defendant’s own belief was reasonable: R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420 and Aubertin v State of Western Australia (2006) 33 WAR 87; [2006] WASCA 229.
The term reasonable allows for a continuum of views, with ‘a variety of beliefs’: R v Wilson [2009] 1 Qd R 476 at [39] per Fraser J.