An honest mistake of belief exists when the accused holds a reasonable but mistaken belief that their actions are lawful at the time of the offence.
To be found guilty of a criminal offence in Victoria, it must be found that the accused acted with ‘criminal intent’ when committing the act, or that they honestly believed they were entitled to act the way they did. This defence is raised then the accused in fact held an honest and reasonably held belief that their actions did not contravene the law.
This defence may also be used when a person is charged with ‘strict liability’ offences, where the prosecution does not need to prove the accused intended to commit the offence, such as driving charges or dealing with property suspected of being the proceeds of crime.
The defence of honest mistake of belief is raised when the accused holds a reasonable, but mistaken belief at the time of committing the offence. It is then up to the accused to prove that:
The mistaken belief was honestly held and the accused was not merely ignorant of the law or negligent in their conduct;
The mistaken belief was reasonable and rational, and capable of sustained belief; given the circumstances the accused was in at the time of the offence.
If the prosecution is unable to show that they accused was not honestly mistaken, or that their mistake was not reasonable, the accused will be acquitted.
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