Criminal responsibility is not usually imposed on people who are in no way morally blameworthy. At least, that is so for serious crimes as opposed to purely regulatory offences. There may be some vagueness over where the boundary is there. And, notoriously, at the opposite extreme, opinions may differ over what can reasonably be required of people who are subject to great levels of stress, such as shipwreck survivors who kill and eat a moribund occupant of their lifeboat.[1]
Mistakes may be made by a person who performs acts that constitute the physical elements of an offence. Some of these mistakes may amount to a denial of the mental elements necessary for criminal responsibility (we call those the mens rea elements). There is nothing controversial about that, as long as the mistake is about fact and not about the law defining the offence. But, sometimes a mistake may be made about some material circumstance (that is, a physical element of the offence, but one that does not engage a mental element), and it may raise a question as to whether it is right to impose criminal liability.
What would the conditions be for an acceptable exculpatory mistake about such a circumstance? Honesty and reasonableness seem to be obvious requirements: the mistake should be one that a reasonable person would have made, and it should have been made honestly, in good faith.[2]
The excuse[3] of mistake was discussed in Bell v Tasmania [2021] HCA 42 (8 December 2021). Here the emphasis was on another aspect of acceptable mistakes: they must be about the “innocence” of the conduct.
The offence here was supplying a controlled drug to a child, and a child was defined as a person under the age of 18 years.
The defendant (appellant) had injected a person with methamphetamine, thinking that the person was over that age.
Supplying the drug to another person was, and is, a separate offence. The mistaken belief, even if it had been honestly and reasonably held, was not an innocent belief: it was belief that another offence was being committed.
The appeal was unanimously dismissed.
Kiefel CJ and Bell J at [9] mentioned historical concerns over the acceptability of a gap between moral culpability and criminal responsibility, and at [12] the common law criterion of the rightness of branding the defendant as a felon and applying punishment. Those concerns were not present where the mistake warranted conviction for an offence: [13], [15]. A provision excusing a defendant from all criminal responsibility for the relevant conduct does not operate in an absence of belief that the conduct was lawful. This contrasts to a corresponding provision in Queensland, whereby the defendant is excused to the extent of the facts that were believed to exist, so that on the facts here the defendant would be excused for supplying the drug to a child but convicted for supplying it to a (non-existent) adult: [18]. The Tasmanian legislature had decided not to follow the Queensland enactment: [23].
Gageler J agreed that under the Tasmanian legislation, the defendant must think the conduct was innocent, that is, not an offence at all. Gordon and Steward JJ came to the same view: [46]-[47], and observed that this conclusion was not harsh, unfair, or contrary to the principles of the criminal justice system: [48]. Edelman and Gleeson JJ were of the same mind: [54], and they embarked upon an extended examination of the development of the common law excuse of honest and reasonable mistake. Again, the mistake must be such as to excuse all the conduct, and here it did not: [105].
It was significant in Bell that no issue was taken over the extent of the mental elements of the offence: the prosecutor only needed to prove the intention to supply the drug. There was no requirement for the prosecutor to prove that the defendant knew or believed the recipient was a child: Kiefel CJ and Keane J at [5], Gordon and Steward JJ at [41], Edelman and Gleeson JJ at [71]. This meant that the issue was not absence of mens rea, but instead was the applicability of the excuse of mistake.
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[1] You certainly don’t need to be reminded of R v Dudley and Stephens, and the ridiculous prospect of judges making law which they acknowledge they could not themselves obey. But I just mention that case as an aside: it is not a “mistake” case, but rather it is a “boundaries of the criminal law” case.
[2] Self defence can encompass mistakes, but the requirement may be that they are honest mistakes, even if not necessarily reasonable mistakes; the reasonableness requirement attaches to the force used in self defence. See, for example s 48 of the Crimes Act 1961 [NZ]. When I was a law student this provision used the masculine pronoun only, but now we have the recognition that some people are female: “Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.” This plainly needs updating, for now we have more pronouns in recognition of the LGBTQ+ people. Where will this end? To the revisers of statutes, I recommend (consistently with my stubbornly-held view: here) avoidance of all personal pronouns here. Try it.
[3] Is it an “excuse”, or a “justification”? The reasonableness requirement suggests justification (compare self defence in note 2 above). Absence of moral blameworthiness also suggests justification. But the expressions might be used without any intention of drawing a distinction between them.
