Criminal Law - General matters - Criminal liability and capacity - Defence matters - Ignorance and mistake of fact - Availability of defence of honest and reasonable mistake - Generally - Act a criminal offence regardless of mistaken belief - Mistaken belief did not excuse crime charged.

Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; Bergin v Stack [1953] HCA 53; (1953) 88 CLR 248; CTM v The Queen [2008] HCA 25, 236 CLR 440, applied.

Judgment Number: [2019] TASCCA 19

1. I agree with Brett J and Martin AJ that the appeal should be dismissed. I agree with the reasons of Martin AJ.
2. The appellant was found guilty by a jury of one count of supplying a controlled drug to a child contrary to the Misuse of Drugs Act 2001, s 14. Because, as will be explained, an offence against the Misuse of Drugs Act, s 14, is an indictable offence, the Criminal Code applies to it: Criminal Code Act 1924, ss 2 and 4. Chapter IV of the Code is entitled "Criminal Responsibility" and includes s 14 which provides:

Whether criminal responsibility is entailed by an act or omission done or made under an honest and reasonable, but mistaken, belief in the existence of any state of facts the existence of which would excuse such act or omission, is a question of law, to be determined on the construction of the statute constituting the offence."

1. As was explained in R v Martin [1963] TASStRp 12; [1963] Tas SR 103, s 14 refers to mistake of fact in terms which assume its existence as a ground of exculpation.
2. The Crown case against the appellant was that he injected a female aged 15 with methylamphetamine. The Misuse of Drugs Act, s 3(1), contains a number of relevant definitions. Methylamphetamine is a controlled drug: Sch 1, Pt 2, item 172. To "supply" a drug includes to administer it. A "child" is a person who has not attained the age of 18 years. The trial judge directed the jury that it was necessary for the Crown to prove only that the appellant supplied the drug, and that the person to whom the drug was supplied had not attained the age of 18 years. It follows from the verdict that the jury was satisfied beyond reasonable doubt of those two things. As the jury was directed, it was not necessary for the Crown to prove that the appellant knew that the complainant was younger than 18. This appeal does not challenge the correctness of that proposition. As Brett J correctly explained at [17] and [18] of his Honour's reasons, it is well established that s 13 of the Code replaces the general presumption of mens rea for crimes to which the Code applies.
3. The respondent accepts that the evidence at trial sufficiently raised the issue of whether the appellant held an honest and reasonable, but mistaken, belief that the complainant was 18 or older. The appellant challenges his conviction on the ground that the learned trial judge erred in law by directing the jury that the defence of honest and reasonable mistake as to age was not available to the appellant as a defence to the charge. I respectfully agree with both Brett J and Martin AJ that the trial judge's ruling was correct. In his reasons Brett J examined the potential difficulty, in principle, in identifying the limits of the application of the defence of honest and reasonable mistake to relieve criminal responsibility where the act of an accused person is wrongful in some way regardless of the mistake. However, in my respectful view, this is not a case in which it is necessary to resolve any uncertainty because, in the circumstances, no uncertainty arises. This is not a case in which, but for the claimed mistake, the appellant was guilty of a "minor regulatory offence" or merely a moral wrong. In CTM v The Queen [2008] HCA 25, 236 CLR 440 the majority, citing Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536, stated at [8]:

"Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word 'innocent' means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be 'outside the operation of the enactment'."

1. By the Misuse of Drugs Act, s 26, a person must not sell or supply a controlled drug to another person. Breach of that provision is punishable by a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years. By the same Act, s 14, a person must not supply a controlled drug to a child. Breach of that provision is punishable by imprisonment for a term not exceeding 21 years.
2. Section 14 is in Pt 2 of the Act, which is entitled "Major offences". Offences in that Part of the Act are all indictable: s 5. There are nine such offences including, for example, trafficking in a controlled drug, s 12, manufacturing a controlled drug for sale, s 6, procuring a child to traffic in a controlled drug, s 13, cultivating a controlled plant for sale, s 7, and possessing a thing intended for use in manufacture of a controlled substance for sale, s 8. All indictable offences under the Act are punishable by imprisonment for a term not exceeding 21 years.
3. Section 26 is one of the ten offences specified in Pt 3 of the Act, which is entitled "Minor offences". The offences in that Part are summary offences, s 18. Offences in Pt 3 of the Act carry penalties which include fines and imprisonment, for some offences, for the maximum term of two years, and, for other offences, the maximum term of four years.
4. The scheme of the Act makes clear that Parliament recognised that some offences under the Act are potentially more serious, and are therefore subject to a higher maximum penalty. Major offences are prosecuted in the Supreme Court. Minor offences are prosecuted in the Court of Petty Sessions. However the specification of the offences in Pt 3 as "Minor offences", and providing for the prosecution of such offences before a magistrate, is not to be taken as indicating that such offences do not involve serious criminal conduct. A summary offence may, according to its individual circumstances, be very serious indeed. For example, it is not difficult to think of circumstances in which a case of selling a controlled drug for sale may justify a greater punishment than some cases of trafficking in a controlled drug, notwithstanding that one offence is punishable summarily and the other is indictable, and the difference in the maximum penalty applicable to each offence. There may also be circumstances in which the punishment for supplying a controlled drug contrary to s 26 may justifiably be greater than the punishment for supplying a controlled drug to a child contrary to s 14.
5. If the jury was satisfied that the appellant had supplied a controlled drug to another person, regardless of that person's age, he was not only guilty of a criminal offence, but guilty of a criminal offence within the same enactment. An honest and reasonable belief that the person to whom he supplied a controlled drug was not a child did not render the appellant's conduct "innocent" as that term is explained in CTM v The Queen and the other authorities to which Martin AJ has referred_,_ and a mistake as to age could not have excused the appellant's act.

1. The appellant was charged on indictment with one count of rape and one count of supplying a controlled drug to a child, contrary to s 14 of the Misuse of Drugs Act 2001 (the Act). The alleged victim was a 14 year old female, who had attended the appellant's premises with a male companion, for the purpose of purchasing illicit drugs. At the trial, which proceeded before Blow CJ, it was common ground that, during the visit, which lasted for approximately one hour, the appellant injected the female with methylamphetamine, which is a controlled drug, and sometime later, had sexual intercourse with her. The appellant did not give evidence, but the prosecution adduced a record of interview between him and the police. In that interview, the appellant admitted injecting the female with the drug, and having sex with her. However, he claimed that she told him, and he believed, that she was 20 years of age. He also claimed that the injection of the drug and sexual intercourse was with her consent.
2. On the count alleging rape, the trial judge left as an alternative verdict, the crime of sexual intercourse with a young person. His Honour directed the jury that, in respect of this crime, the prosecution was required to prove that the appellant did not hold an honest and reasonable belief that the female was 17 years of age or over. However, despite the defence requesting that he give a similar direction in respect of the charge of supplying a controlled drug to a child, his Honour ruled that a mistaken belief as to age did not relieve the appellant of criminal responsibility in respect of that crime, and he directed the jury accordingly. The jury returned a verdict of guilty in respect of the supply charge but was unable to reach a verdict in respect of the count alleging rape. On the re-trial of that count, a second jury returned a verdict of not guilty of rape but guilty of sexual intercourse with a person under the age of 17 years. His Honour then imposed separate sentences of imprisonment in respect of each count, although it was ordered that they be served with partial concurrency.
3. The appellant has now appealed from his conviction in respect of the supply charge. The sole ground of appeal is that his Honour erred in law by directing the jury that the defence of honest and reasonable mistake as to age was not available to the accused in respect of that charge. The ground requires consideration of the fundamental proposition which underpinned his Honour's reasons for that ruling. His Honour accepted that the "defence" of honest and reasonable mistake could apply to criminal responsibility in respect of a crime under s 14 of the Act, but only if the circumstances which were the subject of the appellant's reasonable but mistaken belief, were such that, if true, his conduct would be innocent, that is he would not be guilty of any criminal offence. In this case, even if the appellant's belief had been true, in that the female was over the age of 18 years, the appellant would still be guilty of the summary offence of supplying a controlled drug to another person, contrary to s 26 of the Act. Accordingly, his Honour reasoned, the appellant would not in those circumstances be "innocent", and for this reason a mistake, even if honest and reasonable, would not excuse his act and, therefore, not relieve him of criminal responsibility for it.
4. The appellant submits that this ruling is incorrect as a matter of law. It is submitted that the requirement that the mistaken belief render the conduct innocent simply means innocent of the offence charged. The Act does not contain any provision for an offence against s 26 to be left as an alternative to the crime under s 14. Accordingly, if the prosecution failed to negative the claim of an honest and reasonable mistake as to the complainant's age, the appellant would have been entitled to an acquittal on that count. Irrespective of the view of the second jury, it is impossible to say that the first jury would not have so decided if the defence had been left by the trial judge.
5. The respondent submits that the trial judge correctly stated and applied the law, although the Director conceded that an act could be considered "innocent", notwithstanding that it might constitute a statutory or regulatory breach which could not properly be characterised as a criminal offence. However, in the circumstances of this case, it is submitted that the summary offence of supplying a controlled drug (to a person of any age) is a criminal offence and, accordingly, the mistake will not relieve the appellant of criminal responsibility for the crime of supplying a controlled drug to a child.

The relevance of the appellant's mistake to his criminal responsibility

1. There are three ways in which a mistake by an accused as to a matter of fact, can affect his or her criminal responsibility for conduct which would otherwise constitute a crime:

(a) It may bear on whether the prosecution can prove a mental element specified in respect of the crime, in particular, guilty intention or knowledge.

(b) It may be relevant to a criminal defence other than mistake of fact eg, self-defence or defence of another.

(c) It may operate independently as a ground of exculpation, by virtue of s 14 of the Criminal Code, or pursuant to the common law in respect of statutory offences of strict liability: Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523.

1. There is no mental element specified in s 14 of the Act in respect of the crime in question. Therefore, by virtue of s 4 of the Criminal Code Act 1924, the only requisite mental element is that prescribed by the relevant general provisions of the Code, in particular, s 13. It is settled law that s 13 replaces the general presumption of mens rea in respect of crimes covered by the Code: Vallance [1960] TASStRp 12; [1960] Tas SR 51 (CCA Tasmania)[1961] HCA 42; , (1961) 108 CLR 56 (HC); R v Martin [1963] TASStRp 12; [1963] Tas SR 103.
2. It is also well settled that in respect of the mental element required by s 13(1) of the Code, the "act" which must be voluntary and intentional is "the physical action of the accused and not the whole actus reus": Snow [1962] TASStRp 26; [1962] Tas SR 271. On that analysis, the act which must be voluntary and intentional in the crime defined by s 14 of the Act, is the physical action of the accused in supplying the substance to another person. The mental element required by s 13 will not apply to the surrounding circumstances necessary to establish the crime. In the case of s 14, these circumstances include that the substance is a controlled drug and that the person to whom the drug is supplied is a child.
3. However, an honest and reasonable mistake as to these circumstances may excuse the accused from criminal responsibility. Notwithstanding that the presumption of mens rea has no application under the Code, the exculpatory effect of an honest and reasonable mistake of fact at common law is incorporated into the notion of criminal responsibility in the Code by s 14. That section provides as follows:

"Whether criminal responsibility is entailed by an act or omission done or made under an honest and reasonable, but mistaken, belief in the existence of any state of facts the existence of which would excuse such act or omission, is a question of law, to be determined on the construction of the statute constituting the offence."

1. The learned trial judge noted that the word "excuse" in that section "is very important in this case". In his Honour's analysis, it raised the question of whether, as a matter of law, an honest and reasonable but mistaken belief as to age would excuse criminal responsibility for the crime of supplying a controlled drug to a child, when the act would constitute an offence, albeit one which is less serious, in any event.

When will an honest and reasonable mistake excuse criminal responsibility?

1. The notion that an honest and reasonable mistake of fact will operate to relieve criminal responsibility only in a case where the mistaken facts would render the conduct "innocent" originates from English cases dealing with the application of the principle under the common law. Blow CJ referred to R v Tolson [1889] UKLawRpKQB 85; (1889) 23 QBD 168 and Bank of New South Wales v Piper [1897] UKLawRpAC 21; [1897] AC 383 in which the principle was stated in terms of a formulation that the belief must be in the existence of circumstances which, if true, would make the charged act innocent. However, these cases did not clarify what was meant by the use of the word "innocent". In the oft quoted decision of Prince (1875) LR 2 CCR 154, the Court for Crown Cases Reserved, which consisted of 16 judges, all of whom delivered separate judgments, considered the application of the principle to a charge of unlawfully taking an unmarried girl under the age of 16 years out of the possession and against the will of her parents. The defence was based on the accused's reasonable belief that the girl was over 16. The case is not particularly authoritative in respect of the excuse generally as it was in the early stages of its judicial development, but it is noteworthy for discussion about the requirement that the mistaken belief must render the act innocent. There was considerable uncertainty about this concept, with some judges suggesting that the excuse would not operate, not only in circumstances where the act consistent with the mistaken belief constituted an offence, but also if the act could be seen to be a moral wrong, or constitute a civil tort.
2. Subsequent common law cases have not provided support for the proposition that "innocent" extends as far as meaning "free from moral wrong". However, it is also apparent that the cases have not come to grips directly with the meaning of the word "innocent". Does it mean innocent of any legal wrongdoing, innocent of any wrongdoing of a criminal nature, or innocent of the crime charged?
3. It is important to bear in mind that the early common law cases were concerned with the development of the concept of mistake of fact in terms of a rebuttal of mens rea. The use of the word "innocent" in that context, was clearly related to the question of whether the defendant had the requisite "guilty mind". The meaning of the word could therefore vary according to the application of the principle of mens rea to the offence under consideration.
4. In Australia, the application of the principle as an excuse in respect of offences of strict liability, that is, where the common law presumption of mens rea does not apply, is generally attributed to the High Court decision of Proudman v Dayman (above). That case was concerned with the application of the principle, not with its operation. However, Dixon J described the excuse thus:

"As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence."

"The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment ...". [In both extracts, the emphasis is mine.]

1. The High Court subsequently commented on the application of the excuse in Bergin v Stack [1953] HCA 53; (1953) 88 CLR 248. The case concerned a summary offence contrary to the Licensing Act. A steward employed by a club was charged with selling liquor without a licence. In evidence, he claimed that he believed that the club had the appropriate licence. The court held that the offence was one of strict liability, but the defence of honest and reasonable mistake as to fact could apply in appropriate circumstances. However, in the circumstances of the case, and for a number of reasons, the excuse was held not to be applicable. One of those reasons was that notwithstanding the defendant's belief as to the licence, the sale took place outside lawful trading hours for a licensed club. The steward had not been charged with that offence, but the court found that, even if the state of affairs which he believed was true, his conduct was not "innocent", because he was breaching another provision of the Act. Fullagar J, with whom Williams ACJ and Taylor J agreed, said this:

"The rule as to the effect of an honest and reasonable mistake of fact means, I think, that such a belief excuses if its truth would have meant that no offence was being committed, not if its truth would have meant that some other and different offence was being committed. In the great case of Reg v Prince (1875) LR 2 CCR 154, Brett J said that a mistake excused 'whenever the facts which are present to the prisoner's mind, and which he has reasonable ground to believe ... to be the facts, would, if true, make his acts no criminal offence at all' (1875) LR 2 CCR, at pp 169-170. The judgment of Brett J was the single dissenting judgment in a court of sixteen judges, but the whole point of the case is that the majority held that a mistake could not excuse unless the fact believed was such that, if it had been true, there would not merely have been no crime at all but no wrongful act at all. The statement of Brett J is, therefore, to be regarded as stating a minimum requirement. Denman J said: - 'he cannot set up a legal defence by merely proving that he thought he was committing a different kind of wrong from that which in fact he was committing' (1875) LR 2 CCR at p 179. The rule is generally stated in terms which mean that the existence of the fact mistakenly believed must be such as to render the act an innocent act; see, eg Bank of New South Wales v Piper (1897) AC, at pp 389-390. Kenny (Outlines of Criminal Law, 11th ed (1922), p 65), takes as an instance the case of a man who is charged with burglary, and proves that he honestly and on reasonable grounds believed that his breaking and entering occurred before 9 pm. He would not be entitled to an acquittal on that ground, although, if his belief had been well founded, he would not have been guilty of burglary."

1. In CTM v The Queen [2008] HCA 25, 236 CLR 440, the High Court was dealing with a case in which the question was whether an honest and reasonable but mistaken belief by the accused about the complainant's age was an answer to criminal responsibility in respect of a charge of having sexual intercourse with a person aged between 14 and 16 years. The court held that the mistake could not excuse the appellant from criminal responsibility because he had not satisfied the evidential burden required to raise that issue as a ground of exculpation. The majority took the opportunity to discuss the nature and application of the principle. In general discussion concerning that question, the majority said at [8]:

"Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word 'innocent' means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be 'outside the operation of the enactment' Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536."

1. Later in their reasons, at [27], the majority expanded on this point:

"The question arises: what does the law now provide if a person charged with an offence against s 66C(3) honestly believed, on reasonable grounds, that the complainant was aged 16 years or over? It has already been noted with reference to what was said by Dixon J in Proudman v Dayman that the potential ground of exculpation requires an honest and reasonable belief in a state of affairs which, had it existed, would be such that the accused's conduct was innocent, in the sense earlier explained. It would therefore not assist an accused to believe that a child was aged between 10 and 14, or between 14 and 16; for if the child were of that age, it would merely take the case out of one prohibition into another. The act of consensual sexual intercourse is not of itself an offence. The offence consists in a particular accompanying state of affairs or circumstance (relevantly, age). An honest mistake about the extent to which a child is under-age would merely be a mistake about the kind of offence that is being committed. That would be legally irrelevant to guilt, although it could possibly have some consequence for sentencing purposes."

1. In these passages, the majority confirmed that an honest and reasonable mistake will only operate as a ground of exculpation if the state of affairs is such that, if it were true, the accused's conduct would be innocent. These and similar comments by other judges in CTM were relied on by Blow CJ in this case. However, with respect, the comments raise difficulties in terms of their wider application. By adopting the comments of Dixon J in Proudman v Dayman as to the meaning of "innocent", the court has endorsed two separate tests. One is that "innocent" means not guilty of a criminal offence. The other is that that the conduct must be "outside the operation of the enactment", although the court did seem to limit the application of the latter test to "an offence, or a series of offences, defined by statute". The difference in effect between these tests was not discernible or relevant in the circumstances of CTM, or indeed Bergin v Stack. In the circumstances applicable in both cases, and those recited in the examples chosen by the court to demonstrate the application of the principle, each formulation produces the same result. However, that will not necessarily be the case in all circumstances. In this State, all offences, including crimes, are defined by statute. If a person commits an offence defined by one statute, but under an honest and reasonable mistake of fact which, if true, would amount to an offence under a different statute, then the outcome will be different according to the formulation.
2. It is also possible to predict further difficulties arising from the application of each formulation, which again were not apparent in the circumstances of either case. For example, if the test permitted reliance on the excuse where the mistaken conduct falls "outside the operation of the enactment", it may apply in the case of a person who is alleged to have committed a minor drug offence, but who in fact believed he or she was committing a more serious offence under some other enactment. If the test is formulated as "innocent of a criminal offence", it will have broad application and may see the excuse excluded, notwithstanding a very great disparity in seriousness between the actual offence and the one consistent with the mistaken belief. These difficulties were simply not issues in CTM or Bergin v Stack. In both cases, the alternative crimes postulated in the examples were within the same legislation and were offences of a cognate nature with the offence charged, and at a similar level of seriousness. The sexual offences referred to in CTM carried different maximum penalties clearly moderated to the nature of the crime, but still penalties appropriate for serious crimes nevertheless. For example, sexual intercourse with a child under 12 years carried the potential of life imprisonment, whereas the offence of sexual intercourse with a person between 14 and 16 years carried the maximum penalty of 10 years' imprisonment. In Bergin v Stack, the offences under discussion were all breaches of the Licensing Act, presumably carrying similar penalties.
3. In this appeal, the potential disparity in seriousness between the charged offence and the offence which the accused thought he was committing, is, in my opinion, the most significant issue arising in terms of the just application of this ground of exculpation. I think there is a clear conceptual distinction between a case where a person's mistaken belief, if true, would result in that person's guilt in respect of an offence of similar or greater seriousness, and a case where a person believes he is committing conduct which would carry with it criminal responsibility for an offence considerably less serious than that which he has actually committed. Taken to the extreme, if "innocent" means not guilty of any offence whatsoever, a person would not be excused from criminal responsibility for a serious criminal offence committed under a mistaken belief in a state of affairs that would render him guilty only of a minor regulatory breach. The proposition that an accused person can be held criminally responsible for a serious offence, despite acting under an honest and reasonable belief in a state of affairs which would render him or her innocent of that crime, notwithstanding that another less serious crime may have been committed, is difficult to reconcile with fundamental concepts relevant to criminal justice, such as the presumption of innocence. Although the authorities accept that the mistake can be taken into account in the assessment of moral culpability when determining sentence, this does not seem to me to be a satisfactory response to a problem concerning the attribution of criminal responsibility.
4. As already noted, the trial judge considered that the use of the word "excuse" in s 14 of the Code, supported the conclusion that before the "defence" will operate, it must be shown that if the circumstances accorded with the honest and reasonable mistake, the accused would not have been guilty of any criminal offence. I respectfully disagree. The word as it is used in that provision is a reference to relief from criminal responsibility for the "act or omission". The attribution of criminal responsibility for same will, in the first instance, depend upon the crime or offence alleged to be constituted by that act or omission. The Code clearly endorses a criminal process which relies on accusation and clear identification of the crime which is the subject of the accusation. The principles of criminal responsibility contained in the Code will, in the normal course, be applied within the confines of that criminal process. The word "excuse" in s 14, in my view, can accordingly be properly construed by limiting its application to the question of criminal responsibility for the act or omission which is a constituent of the crime which is the subject of the identified accusation. That is, the section can be read as if it included the words "would excuse such act or omission from criminal responsibility for the crime charged." On that basis, it would be irrelevant that the act may also incur some form of criminal liability under another provision, which is not the subject of the accusation or the criminal process flowing from it.
5. The uncertainty arising from these formulations, and difficulties arising from their practical application, has been identified and discussed in some academic texts. For example, in Criminal Defences in Australia, 5th ed, Fairall and Barrett, at 2.42, the learned authors comment as follows:

"What is meant by the term 'innocent' in this context remains unresolved. Brett J, the sole dissenter in Prince v R (1875) LR 2 CCR 154, stated that the accused's mistaken belief must be such that it 'would, if true, make his acts no criminal offence at all'. This approach has been cited with approval by Australian judges, including by Fullagar J, with whom Williams and Taylor JJ concurred, in Bergin v Stack [1953] HCA 53; (1953) 88 CLR 248. Assuming that this approach is adhered to, the obvious question to be asked is why an accused should be convicted of a particular crime if, on the facts which he or she believed to exist, he or she would at most be guilty of some minor offence with which he or she had not been charged. For example, it would seem wrong to convict a person of a serious drug offence in circumstances where he or she had possession of the drugs but reasonably believed them to be an excisable good, namely tobacco, which if the belief were true would have meant that he or she was merely committing a breach of s 117 of the Excise Act 1901 (Cth)." [Footnotes omitted.]

1. In submissions, the Director accepted that a requirement that a person's mistaken belief must result in innocence of any offence before the ground of exculpation will apply is too broad, and that the test should be more confined. The problem, of course, is where the line should be drawn. The Director accepted that a minor regulatory offence would not necessarily take the conduct out of the definition of "innocent" but submits that it is not necessary to resolve that question in this case. In his submission, on either formulation expressed in CTM, the appellant's mistaken belief would not operate to excuse him from criminal responsibility for the crime in question, and accordingly the trial judge correctly withheld that issue from the jury. It is submitted that supplying an illegal drug constitutes a criminal offence and is an offence against the same enactment as the crime alleged in the indictment.
2. However, if the law is that the formulation should not extend to innocence of all offences, for example minor regulatory breaches, then the question of where the boundary is drawn, is relevant to the determination of this case. The Act divides offences into major and minor drug offences. The major offences, which include the offence charged in this case, are indictable offences and, in accordance with the Code, carry a maximum penalty of 21 years' imprisonment. The minor offences, which include an offence against s 26, are summary offences and carry maximum penalties which include fines or imprisonment for periods between 2 and 4 years. In the case of an offence against s 26, the prescribed penalty is a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years. Although both major and minor offences are properly described as criminal offences, the disparity in seriousness and potential punishment is significant.
3. However, any attempt to draw a line according to the seriousness of the offence, for example by excluding minor regulatory offences from the consideration of innocence, is fraught with difficulty. If one defines a criminal offence by reference to the definitions of "crime" and "offence" in s 1 of the Code, the term will encompass any offence which renders an offender liable to punishment. This would include a minor regulatory offence. In any event, the breach of some regulatory offences can involve serious conduct and incur significant punishment. Further, if such offences are excluded, the problem which immediately arises is the Bergin v Stack situation where a person is charged with a minor regulatory offence, but under the mistaken belief would be guilty of a different regulatory offence under the same statute. If one attempts to resolve this difficulty by suggesting that the excuse will not apply in cases where the conduct would see the offender guilty of an offence of similar seriousness, which is the suggestion of the learned author of Criminal Defences in Australia, then the question arises as to how the seriousness of an offence will be determined. Is it to be determined on the basis of the maximum penalty? Such a test could not possibly account for the infinite variety of circumstances and the mix of aggravating and mitigating features. Any other criteria will rely upon subjective judgment and produce unacceptable uncertainty and inconsistency in application.

1. In my view, there are only two tests capable of consistent application. The first is that the mistaken belief, if it had been true, would render the conduct innocent of the offence charged. On the basis of this test, this appeal would succeed. The alternative is that the said conduct must be innocent of any criminal offence whatsoever. The former has the benefit of certainty and seems to me to be consistent with our accusatorial system of criminal justice, and fundamental concepts related to it such as the presumption of innocence. However, the weight of judicial authority supports the second proposition. In particular, authority supports the principle that an honest and reasonable mistake will only operate to excuse criminal responsibility if the belief would result in the conduct being innocent, in the sense that it is not criminal conduct of any nature. Notwithstanding the difficulties of practical definition and application already discussed, there is a sound jurisprudential basis for that principle. This Court should follow that authority. Under that test, a criminal offence should be seen as one which carries the potential of criminal punishment. Any further uncertainty as to the precise limits of the definition of a criminal offence for the purpose of the application of this principle and, in particular, whether some or all minor regulatory offences are included, does not need to be resolved in this case. The summary offence of which the appellant would have been guilty, a breach of s 26 of the Act, is clearly an offence carrying a criminal sanction. Under the formulation consistent with authority, the mistake in question would not have rendered the conduct innocent, and therefore does not excuse the appellant of criminal responsibility for the crime committed against s 14 of the Act. The appellant's mistaken belief can, of course, be taken into account in the assessment of sentence. In this respect, it will be treated in a similar way to a mistake of law.
2. It follows that the trial judge correctly refused to leave the question of honest and reasonable mistake as to the age of the child for the jury's consideration. The ground of appeal is not made out. I would dismiss the appeal.

1. The relevant background facts to this appeal are set out in the judgment of Brett J. In essence, upon the trial of the appellant for supplying a controlled drug to a child, contrary to s 14 of the Misuse of Drugs Act 2001 (the Act), Blow CJ declined to instruct the jury that the prosecution was required to prove that the appellant did not possess an honest and reasonable belief that the person to whom he supplied the drug was aged 17 years or over. In his Honour's view, such a belief was not exculpatory because, even if the belief as to age was reasonably held, the appellant would still have committed the offence of supplying a controlled drug to another person contrary to s 26 of the Act. In those circumstances, the belief as to age did not "excuse" the act of supply as required by s 14 of the Criminal Code.
2. The appellant appeals against the verdict of guilty on the basis that the trial judge erred in law in directing the jury that the appellant's belief as to the age of the person to whom the drug was supplied was irrelevant. By way of contrast, as the appellant was charged with rape in the same trial, Blow CJ directed the jury that in respect of the alternative verdict of sexual intercourse with a young person, the Crown was required to prove that the appellant did not possess an honest and reasonable belief that the complainant was aged 17 years or over.

1. Speaking broadly, the so-called defence of honest and reasonable mistake of fact applies in Tasmania. Section 14 of the Code provides as follows:

Whether criminal responsibility is entailed by an act or omission done or made under an honest and reasonable, but mistaken, belief in the existence of any state of facts the existence of which would excuse such act or omission, is a question of law, to be determined on the construction of the statute constituting the offence."

1. Blow CJ observed that it is "well established that s 14 and its counterparts in other Code States are statutory expressions of the common law". In applying the common law, s 14 requires the Court to consider whether the act relied upon as constituting the criminal offence was done under an honest and reasonable, but mistaken, belief as to facts which would "excuse" the otherwise criminal act. The trial judge regarded the word "excuse" in s 14 as "very important". His Honour encapsulated the issue as "whether a belief that the girl was an adult, if held, would 'excuse' the act of supplying a controlled drug to her".
2. In simple terms, Blow CJ found that a belief that the person to whom the drug was supplied was an adult would not "excuse" the act of supplying the drug to her because that act of supply would be an offence against s 26 of the Act. In Blow CJ's view, this conclusion followed on a proper construction of s 14:

"[12] As Hayne, Heydon, Crennan and Kiefel JJ said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47], 'the task of statutory construction must begin with a consideration of the text itself', and 'The language which was actually being employed in the text of legislation is the surest guide to legislative intention.' It follows that, unless there is a good reason to adopt a different interpretation, s 14 should not be interpreted as applying to a mistaken belief in a state of facts, the existence of which would not 'excuse' the accused person's conduct, even if the believed facts would result in the accused person being guilty of a less serious offence than the one charged."

1. In Thomas v The King [1937] HCA 83; (1937) 59 CLR 279, the High Court was concerned with a charge of Bigamy. The accused believed that his former marriage was invalid and that he was lawfully entitled to the enter into the ceremony of marriage.
2. By a majority, the High Court held that such a belief constituted a good defence. In the course of his judgment, Latham CJ referred to the "strong" authority of Tolson's Case [1889] UKLawRpKQB 85; (1889) 23 QBD 168. In his Honour's view, Tolson's Case established the proposition that "the general rule in all the graver class of crimes ... is that the accused is not guilty if he had an honest and reasonable belief in the existence of facts which, if they had really existed, would have made his act both legally and morally innocent" (287). [My emphasis.]
3. The Chief Justice also referred to a passage from the judgment of Wills J in Tolson's Case:

"It is, however, undoubtedly a principle of English criminal law, that ordinarily speaking a crime is not committed if the mind of the person doing the act in question be innocent." [My emphasis.]

1. In addition, his Honour cited a similar passage from the judgment of Cave J (287):

"At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence." [My emphasis.]

1. In a judgment with which Rich J agreed, Dixon J also cited with approval the same passage from the judgment of Cave J in Tolson's Case. His Honour described this "doctrine" as "deeply embedded in our criminal law" (300). Later in his judgment, Dixon J expressed the view that Tolson's Case finally established that the general doctrine of the common law existed and described the rule in the following terms at 304:

"The rule accepted was that in the case alike of an offence at common law and, unless expressly or impliedly excluded by the enactment, of a statutory offence, it is a good defence that the accused held an honest and reasonable belief in the existence of circumstances which, if true, would make innocent the act for which he is charged." [My emphasis.]

1. Dixon J then referred to a passage of the judgment of the Privy Council in Bank of New South Wales v Piper [1897] UKLawRpAC 21; [1897] AC 383 in which the observation was made that the absence of mens rea "really consists in an honest and reasonable belief entertained by the accused of the existence of fact which, if true, would make the act charged against him innocent". [My emphasis.]
2. The historical analysis in Thomas demonstrates that when s 14 was enacted in the Crimes Act in 1924, the rule was commonly expressed in terms of a belief in facts, the existence of which, if true, would make the act charged "innocent". The rule in this form was confirmed in Thomas and later in Bergin v Stack [1953] HCA 53; (1953) 88 CLR 248. An employee of a club not registered under the Victorian Licensing Act was charged with selling alcohol without a licence. The employee said he took it for granted that the club was licensed, but he was unaware that he served alcohol during prohibited hours. The High Court unanimously held that the belief concerning the licence did not provide an answer and, in a judgment with which Williams ACJ and Taylor J agreed, Fullagar J spelt out the application of the relevant principle (262):

"In the second place, even if it could be said that he entertained an honest and reasonable belief that the club was a registered club entitled under the Act to sell liquor to its members, it could not in this case, in my opinion, be an answer to the charge. At this point the fact that the sale took place at 6.40 pm, ie outside lawful trading hours for a club (see ss 266(2) and 8 of the Licensing Act 1928), becomes for the first time relevant. (Since the defendant was not charged with selling outside trading hours, it is not, in my opinion, relevant in any other respect.) If his belief had been true, the only result would have been that he was guilty of an offence under s 266 of the Act. The rule as to the effect of an honest and reasonable mistake of fact means, I think, that such a belief excuses if its truth would have meant that no offence was being committed, not if its truth would have meant that some other and different offence was being committed. In the great case of Reg v Prince, Brett J said that a mistake excused 'whenever the facts which are present to the prisoner's mind, and which he has reasonable ground to believe ... to be the facts, would, if true, make his acts no criminal offence at all'. The judgment of Brett J was the single dissenting judgment in a court of sixteen judges, but the whole point of the case is that the majority held that a mistake could not excuse unless the fact believed was such that, if it had been true, there would not merely have been no crime at all but no wrongful act at all. The statement of Brett J is, therefore, to be regarded as stating a minimum requirement. Denman J said: - 'he cannot set up a legal defence by merely proving that he thought he was committing a different kind of wrong from that which in fact he was committing' The rule is generally stated in terms which mean that the existence of the fact mistakenly believed must be such as to render the act an innocent act; see, eg Bank of New South Wales v Piper. Kenny (Outlines of Criminal Law, 11th ed (1922), p 65), takes as an instance the case of a man who is charged with burglary, and proves that he honestly and on reasonable grounds believed that his breaking and entering occurred before 9 pm He would not be entitled to an acquittal on that ground, although, if his belief had been well founded, he would not have been guilty of burglary. In the present case the defendant said that he 'did not know that trading hours for clubs were universally restricted to 6 pm'. But this, of course, is merely a statement that he did not know the law. If the facts established an offence against s 161, the existence of a belief which, if well founded, would mean that his offence was not against s 161 but against s 266, affords him, in my opinion, no defence." [Footnotes omitted.]

1. It is significant that Fullagar J spoke of a belief excusing the conduct only if it was a belief in facts which would mean that "no offence" was committed. His Honour expressly excluded belief in facts which would mean that "some other and different offence was being committed". Further, his Honour regarded, as enunciating a "minimum requirement", the statement by Brett J that the mistake excused the act if the believed facts would make the act "no criminal offence at all". In Fullagar J's words, the facts believed by the person charged must be such that "there would not merely have been no crime at all but no wrongful act at all".
2. In addition, Fullagar J spoke of the rule as generally stated in terms "which mean that the existence of the fact mistakenly believed must be such as to render the act an _innocen_t act". [My emphasis.]
3. In more recent times, the High Court in CTM v The Queen [2008] HCA 25, 236 CLR 440, was required to consider the conviction of a youth of sexual intercourse with a person aged between 14 and 16 years. The youth told police that the complainant had informed him she was aged 16 years. Although the appeal against conviction was dismissed on the basis that the youth had not satisfied the evidential burden required to raise an honest and reasonable mistaken belief as to the complainant's age, the majority held that the common law principle of honest and reasonable mistake as to facts can apply to the particular section of the New South Wales Crimes Act. In a joint judgment, Gleeson CJ, Gummow, Crennan and Kiefel JJ concisely identified the principle in the following terms at [8]:

"Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word 'innocent' means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be 'outside the operation of the enactment' Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536."

1. Later in their judgment, their Honours provided an example which can directly be applied to the circumstances under consideration at [27]:

"The question arises: what does the law now provide if a person charged with an offence against s 66C(3) honestly believed, on reasonable grounds, that the complainant was aged 16 years or over? It has already been noted with reference to what was said by Dixon J in Proudman v Dayman that the potential ground of exculpation requires an honest and reasonable belief in a state of affairs which, had it existed, would be such that the accused's conduct was innocent, in the sense earlier explained. It would therefore not assist an accused to believe that a child was aged between 10 and 14, or between 14 and 16; for if the child were of that age, it would merely take the case out of one prohibition into another. The act of consensual sexual intercourse is not of itself an offence. The offence consists in a particular accompanying state of affairs or circumstance (relevantly, age). An honest mistake about the extent to which a child is under-age would merely be a mistake about the kind of offence that is being committed. That would be legally irrelevant to guilt, although it could possibly have some consequence for sentencing purposes."

1. The appellant's mistake about the age of the person to whom he supplied the drug was merely "a mistake about the kind of offence" that was being committed. The mistake was, therefore, "legally irrelevant to guilt".
2. In my opinion, the essential principle as stated by Fullagar J has not been overruled. Rather, it was confirmed by the majority in CTM v The Queen. In order to excuse, the believed facts, if true, must render the act charged "innocent" in the sense that the act would not amount to a criminal offence.
3. In my view, this was the position at common law when s 14 of the Code was enacted in 1924. In those circumstances, and having regard to the statutory context and text of s 14, in my opinion the Chief Justice was correct in his view that the word "excuse" in s 14 means excused from any criminal offence. I respectfully disagree with the view expressed by Brett J to the contrary.
4. In the passage earlier cited from CTM, after identifying that in the context of mistaken belief the word "innocent" means not guilty of a criminal offence, the majority added the following at [8]:

"In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be 'outside the operation of the enactment'."

1. The quote concerning the conduct being "outside the operation of the enactment" came from the judgment of Dixon J in Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 at 541. On a special leave application, the High Court was concerned with the application of the rule to summary road traffic offences created by statute. Although special leave to appeal was refused, Dixon J observed at 540:

"As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence." [My emphasis.]

1. Later in his judgment, Dixon J made the observations which were subsequently cited by the majority in CTM (at 541):

"The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe."

1. Brett J has expressed the view that in these passages, the majority in CTM has endorsed two separate tests. First, that "innocent" means not guilty of a criminal offence and, secondly, that in the case of an offence, or series of offences, defined by statute, the belief, if true, would take the conduct of the accused "outside the operation of the enactment".
2. In Proudman v Dayman, Dixon J was concerned with the application of the rule to a summary offence created by statute. This is apparent from the following passage (540):

"The strength of the presumption that the rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute. If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise where in matters of police, of health, of safety or the like the legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced. In such cases there is less ground, either in reason or in actual probability, for presuming an intention that the general rule should apply making honest and reasonable mistake a ground of exoneration, and the presumption is but a weak one."

1. After discussing the presumption that the general rule should apply to regulatory legislation which adopts penal measures, his Honour concluded that there was no sufficient reason for treating the presumption as rebutted with respect to the particular provision of the Road Traffic Act under which the charge had been laid. It was in this context, and immediately after making these observations, that his Honour spoke of an act being taken "outside the operation of the enactment".
2. This aspect of the rule was not the subject of submissions. The historical context for Dixon J's reference to conduct "outside the operation of the enactment" has not been explored. Bearing in mind that in the same judgment Dixon J spoke of the "general rule" in terms of believed facts making an act "innocent", it may be that when his Honour spoke of an act being "outside the operation of the enactment", he had in mind regulatory offences.
3. In Bergin v Stack the High Court was concerned with a statutory offence under the Victorian Licensing Act. Fullagar J applied the "innocence" rule and did not qualify it as meaning innocent under the particular enactment. However, the alternative offence existed under that enactment and the possibility of an offence under a different enactment was not considered.
4. In CTM, the majority might have been acknowledging the existence of a separate test when statutory offences of a regulatory nature are involved. However, as the issue was not the subject of submissions and the Court is concerned with criminal matters, it is unnecessary to explore this issue further.
5. Brett J has also expressed concern that if "innocent" means not guilty of any offence, a strange and unfair result could ensue. A person could be held guilty of a serious criminal offence because the facts mistakenly believed, which would otherwise excuse the act charged, would nevertheless amount to a minor offence such as a breach of regulations. His Honour cites the example provided in the text: Criminal Defences in Australia, 5th ed, Fairall and Barrett, at 2.42:

"What is meant by the term 'innocent' in this context remains unresolved. Brett J, the sole dissenter in Prince v R (1875) LR 2 CCR 154, stated that the accused's mistaken belief must be such that it 'would, if true, make his acts no criminal offence at all'. This approach has been cited with approval by Australian judges, including by Fullagar J, with whom Williams and Taylor JJ concurred, in Bergin v Stack [1953] HCA 53; (1953) 88 CLR 248. Assuming that this approach is adhered to, the obvious question to be asked is why an accused should be convicted of a particular crime if, on the facts which he or she believed to exist, he or she would at most be guilty of some minor offence with which he or she had not been charged. For example, it would seem wrong to convict a person of a serious drug offence in circumstances where he or she had possession of the drugs but reasonably believed them to be an excisable good, namely tobacco, which if the belief were true would have meant that he or she was merely committing a breach of s 117 of the Excise Act 1901 (Cth)." [Footnotes omitted.]

1. The concern expressed by Brett J and the academic text would be somewhat ameliorated if the rule required that the believed facts would render the act innocent in the sense of innocent of any criminal offence. However, his Honour's concern about the disparity between maximum penalties for major and minor offences under the Act would still remain. Again, while the Director of Public Prosecutions accepted that the rule would be too broad if it required the mistaken belief to result in innocence of any offence, no matter how minor, this issue and the question of where the line should be drawn was not the subject of submissions. It is unnecessary for this Court to explore this issue further.
2. In my opinion, as a minimum requirement, s 14 of the Criminal Code requires that the believed facts excuse the act in the sense that the act would not amount to a criminal offence. Notwithstanding the significant disparity in maximum penalties, the offences of supplying a drug to an adult is a criminal offence attracting a maximum penalty of imprisonment for four years. While the Act distinguishes between major and minor offences, all are criminal offence attracting sentences of imprisonment.
3. The Chief Justice was correct. The appellant's belief that he was supplying a controlled drug to an adult was "legally irrelevant to guilt".
4. For these reasons, in my opinion the appeal should be dismissed.