In some cases, mistake is a defence to a criminal or penal charge. However, not all errors are recognized and accepted as a defense. While mistake of fact is accepted as a defence, mistake of law is not. For example, a person who buys a stolen bicycle without knowing it is stolen and is arrested for theft could claim a mistake of fact.
Sincerely held belief
A mistake of fact is an error about the circumstances of the offence. It consists in honestly and sincerely believing in an erroneous factual situation which, if it had existed, would have made the act lawful. The accused may therefore believe in the existence of a fact that does not exist or in the non-existence of a fact that does exist.
In order for a criminal offence to be committed, there must be the presence of both the physical element (the actus reus) and the mental element ( the mens rea). The purpose of the criminal law is to punish people who not only commit illegal acts, but who are also morally guilty. An error of fact implies that the accused did not have a malicious state of mind, and therefore cannot be held criminally liable. If the mistake of fact is accepted as a defence, he will be acquitted. In order for the mistake of fact to be successfully asserted, it will be sufficient for a reasonable doubt to be raised in the mind of the judge as to the moral blameworthiness of the accused.
In addition, the acceptance criteria differ depending on the offence.
Mens rea subjective
For subjective mens rea offences, i.e., offences where what has passed in the mind of the accused is assessed: it is sufficient that the accused has sincerely believed the fact, regardless of whether his belief is reasonable or not.
Exceptions
For some sexual offences against minors, the belief about the age of the victim must not only have been sincere, but the accused must have taken all reasonable steps to ascertain the age of the complainant.
In addition, in the case of sexual assault, the accused must have taken steps that were reasonable in the circumstances to ensure consent, honest belief is not enough.
Mens rea objective
In the case of objective mens rea offences, i.e. offences in which the conduct of the accused is compared with that of a reasonable person in the same circumstances: the belief in the fact must have been not only sincere, but reasonable.
Limitations in law
A mistake of fact is invalid if the accused sincerely believed in the existence of an unlawful act. For example, in Kundeus, the mistake of fact was raised by the accused, who had been sold the wrong drug without his knowledge. The Supreme Court rejected the defence of mistake of fact, since the drugs the accused believed he possessed were equally illegal.
Mistaken identity of the victim will not be accepted as a defence. For example, the accused could not argue that he was seeking to kill a person other than the one he killed.
The mistake of fact can sometimes be an effective defense against a criminal charge, providing a legal way out for those who have acted under false and honest beliefs. However, it is crucial to understand that this defence does not apply to all situations and is limited by strict criteria.
As lawyers dedicated to defending your rights, we are ready to help you navigate these nuances to ensure a robust defense. If you or someone you know is facing charges and thinks the mistake of fact could be a defense, please feel free to contact us for an in-depth consultation.