THE REXSONXBLEXESS O F J111;'1'A4KE I S THE CRIMINAL IJ'4\Tl Conzmolt Ln7tl Jurisdictions. The effect of mistake of fact in the criminal law is not uniform. In particular, it is sometimes, but not always, true to say that to constitute a sufficient answer to a criminal charge a mistake of fact must be reasonable. Thus Dr. Glanville Williams says that ,~ the "idea that a mistake, to be a d e f e n ~ e must be reasonable, though lurking in some of the cases, is certainly not true as a general proposition," except, of course, where some statute expressly confines the defence to reasonable m i ~ t a k e . ~ With this may be contrasted the rather different formulation by Professor Perkins: "lf no specific intent or other special mental element is required for guilt of the offense charged, a mistake of fact will not be recognized as an excuse unless it was based upon reasonable groundsw4 The case against reasonableness of mistake in the criminal law was put in 1908 in the following words: "Must the mistake be reasonable ? An act is reasonable in law when it is such as a man of ordinary care, skill, and prudence would do under similar circumstances. To require that the mistake be reasonable means that if the defendant is to have a defence, he would have acted up to the standard of an average man, whether the defendant is himself such a man or not. This is the application of an outer standard to the individual. If the defendant, being mistaken as to material facts, is to be punished because his mistake is one which an average man would not make, punishment will sometime5 be inflicted when the criminal mind does not exist. Such a result is contrary to fundamental principles, and is plainly unjust, for a man should not be held criminal because of lack of intelligence. If the mistake, whether reasonable or unreasonable, as judged by an external standard, does negative the criminal mind, there should be no c o n ~ i c t i o n . " ~ Yet it is undoubtedly true that in many judicial references to mistake of fact the word "reasonable" or some synonym appears. Perhaps the best known is the sweeping declaration of the Privy 1. This article is a revised version of a paper delivered to the Australian Universities Law Schools Association upon the occasion of the 15th annual conference a t Perth, W.A., in l u g u s t 1960. I am most grateful to those members who took part in the ensuing discussion for their penetrating criticisms of the original draft. 2. The word "defence" is used here, as elsewhere in this article, as a matter of convenience. I t is not intended to imply that any burden of proof rests upon the defendant. 3. Glanville Williams, Criminal L a w : The General Part, pp. 163 and 167. 4. Perkins, Critni~zal a w , p. 827. L 5 . (1908) 22 Harv. Law Rev., 75, 84. Council in Uu~tkof Nezl Sozrllz Tf'crlrs 71. P,iper6 tliat "thr a h o n c e of tnem reu really consists in an honest and rcasona1,le belief cntertaincd by thct accused of the, existence of facts, whicli, if true, would make t l ~ cact charged against him innocent," hut many other t.samplcs could 1)e cited.' Nevertheless, there are also dicta of high authority which do not limit the defence of mistake of fact to reasonable mistake. Trade Associatio~t, commenting Thus Lord Atkin in Thorne o. I~fotor that on a passage in Darling J.'s judgment in D~mo~zd,Qemarlied "language was used in the judgment which seemed to indicate that (,yen if the mistake were as to a fact which would have constituted 3 reasonable cause such a mistake would be irrelevant; in other words, there must be in fact a cause not merely a genuine belief in a cause. This seems t o be incautiously expressed: and I do not think that doubt should exist upon a well established proposition in criminal law that normally a genuine belief in the existence of facts as apart from law, which if they existed would constitute a defence, is itself a sufficient d e f e n ~ e . " ~ The difficulty is usually resolved by explaining that the word "rcnsonable" in this context means only that unless the mistake is reasonable it is not likely to be believed, not t h a t reasonableness is requircd as a matter of law. Thus in Gurney Cockburn C.J. said that "the reasona1)leness of belief, though i t may he one element and of judging of its honesty, is not c o n c l ~ s i v e , " ~ ~ Lord Rram\vell in Dcrrz, 2,. Peek referred t o "a confusion of unreasonableness of belief as evidence of dishonesty, and unreasonableness of belief as of itself a ground of action."ll ?;ow, this esplanatio11, although it reconciles many of tlie dicta satisfactorily, is not adequate in all cases. For instance, it is difficult t o say t h a t the court is referring only to a n evidentiary caution when it deliberately requires that the mistake he such "as does not arise fro111 a want of proper care",l2 or "not superinduced by fault 6. j18!)i] 11.C.383, 389-390. i . For a selection see Prime (1875) 2 C.C.K. 154, 150, pel. Brett J . ; Tolso7z (1889) 23 Q.U.1). 168, 181, per Cave J., 188, per Stephen J . : Hurdgruue 2%. 7.h~ I.I<. 536, 540, pr7r Dison J . I-or American vsampleh see I'crkirls op. czt. pp. 826-827 n n . i l - 7 i ; 1r.S. z8. i i l ~C:lio+ig (1910) 15 l'liilippinc 488; A4dums z ~ . Strcte (1928) 110 l'cs. Cr. SO, i S.\l'. 2d 528. 8. [I920 2 Ic.13. 2(iO. 9. [1!13i- :\.C. 797, 80'3. ('p. Tliowiizs 1 , . 7'irc. I\':)ig (193i) 3!1 C.L.I<. Z!), 2 - 0 , per I J . .\id sce l'erkins o p . 6 1 1 . p. 828 11. 82; ~Iluislirrll (1830) 1 1.ew. 7 6 . 10. (1860) 11 Cox 414, 467. 11. (188lt) 14 App. Cas. 337, 352. See also 1t.iZson v. I?ijjr~)/g [1!151: 2 1i.B. 7'30, a13tl thc note ttiereo~lby Cilanville \Villiams a t 14 17lod. Luw h'c11. 485; Uorinr~rl1!)5l] V . K . 227, 253-254, per Barrj- J . 12. lfcini~lto~r. State (1930) 115 Tex. Cr. 96, 97; 29 S.\\'. 2d 777, 7i8. r8 01- negligen~e",':~ e\,en Inorc explicitly la!-> dow11 that if t h r or defendant pleads mistakc ht, " i h 1)ound to cxercisc rt.asoli;~l)lt, diligence to ascertain tlip facts".'A .ind thcl-c~ ;I furthrr diffic~llty i. 01-er offcnccs of neglig-ence.'j I t is ; contr;idiction to s l y t l i < ~i111 i t oHence can be committcd on proof of nrgligc~icc.and yc3t :illo\v ,i negligent mistalte as a dcfencc, mert3ly Ijt~cau.~c~ it h;tlq)c~liedto 1~ genuine. I t is clear that for a mistake of 'fact t o afford :L defc~nct. to a charge based on negligence, it must a1.w 11c rt~:tso~i;~ljlc~, I.o.. such a mistake as a reasonable man wollld l i ; ~ \madc in t h c ~ circumstances. I t is submitted that these difficulties havr tlicir origi~iill tlic~ custom of treating mistake of fact in the criminal law a5 onc. >inglt. defence. The truth of thc matter is that there are two sucli defences, one applicable t o crimes of mefz.q ren,16 and onc app1ical)lt. to crimes of negligence. To crimes of melts rea, or elements of crime which require meizs yea, niistakc of fact sinzfilicit~~r .I i. defence; to crimes of negligence, or elements of an offence \vhicIi require only negligence, mistake of fact is a dvfencc only if the, mistake was in all the circumstances a reasonal~leon? to make. If this analysis i s accepted, judicial dicta on the subject need not be taken too literally, but can be read in I-elation to tht. off?nct. before the court and interpreted accordingl!.. There is, however, one disadvantage to htating the Ian. in thih way, and that is that to discover whethcr a mistakc must 1)c. reasonable, one must first inquire ~vlietherthe offence chargcd i h one of negligence. A possible source of difficulty whcrt, statutory offences are concerned is that an offence nliicli ma!. ha\-e 13c.t.n intended to depend upon m e n s yea can be converted into an offclicc. of negligence by the express inclusion in the btatute of a referenccb to reasonable mistake. Thus by the Crimes Act, 1900 (F.S.L\'.), s. 77 (c) (ii) it is a defence to a charge of indecently assaulting a female under the age of sixteen years for the accused reasonabl!. to have believed that t h e female in question was over that age. The result is that in New South Wales this offence, so far as the requirement of age is concerned, is one of negligence.17 I n that particular case this result may have been intended and is by no means remarkable, for it is not unjust to expect a man who desirc. 13. Dotson v. State (1878) 82 .%la. 141, 144. 14. Gordon v. State (1875) 5 2 Ala. 308, 315. 15. The term "negligence" is used here as meaning "a non-intentional fallure t o conform t o the conduct of the reasonable Inan in respect of the co11sequence in question" (IVilliams op. cit. p. 86). The antithesis sometimes drawn between negligence as conduct and negligence as a state of mint1 is thought t o serve no useful purpose (see ibid., pp. 85-86). 16. The term "ntens yea" is used here t o indicate some degree of advertence in cont;adistinction t o inadvertent negligence, and comprises sucil h t a t r h of mind as intention, knowledge, \vilfulness, and recklessness. 1'7. Cp. Criminal Law Consolidation - k t , 1935-1952 (S.Ll.), ss. 55 ( 2 ) (1)) and 57 (3) (b). scxual excitemcnt with a soung woman to takc reasonable care to ascertain her age' first. I3ut parliamentary drafts~nanshipis not ala1aj.s conspicuou> for its precision, and the consequence5 of inattention m;l!7 not alwa\-s 1~ so sitisfactory. :-idmittc.dl!*, tilts danger of legislati1.e oversight in the coinmou la\\. jurisdictions is not undulj- menacing, for the rnajor oflcnces rr:clniring 7nerl.s Yru remain tiic products of casc-lair. and are not subjc~ctto a statntorg- defence of reasonable mistake of fact. The cast. is differcmt, Ilouever, when a comprehensive code of criminal law is enacted, fol. the inclusion of the word "reasonable" in the formulation of a single general defence of mistake in a code may leati to scrious difficult!.. The point may he illustrated by refercnct, t o tlic Qut~c.n.;landC'rirninal ('ode. ('haptcr 1 of that ('ode sets out the general principles of ' criminal responsi1)ility wllictl "apply to all persons charged wit11 any offence against the Statute Law of Q u e e n ~ l a n d . " ' ~ Cllal)ter- \' includes 5 . 23, ~i.llicliruns as follows. Sertior2 21:-A person who does or omits to do a n act undtlr an I~onestand reasonal~le, but mistaken, belief in the esistencc~ of any state of things is not criminally responsible for the act or omission t o any greater extent than if the real state of things had btcn such a i he believed to exist. The operation of this rule may be excluded by the exprcis or implied provision5 of the law relating to the subjcct.19 I t will bc scacll that this section, which is the only one conccrncd in general tcrms wit11 mistake of fact,20includes a n exprey? requirement that the mi3takr he reasonable. Therefore in its full form the first paragraph of 5 . 24 applies o n l y 2 0 offences, or to can particular clcincnts of offencc~,~u-hich be committed negligcntlh-. Since, this is thr. only section on m k t a k e of fact in the Code, ;lnd since it is of ge~leralapl~lication,the question arises, how is s. 51 to be reconciletl with those offences which require proof bj. P of some form of advcrtence" on D's part ? Or, to put tile question \V..\. Code are ictc~itical. Cp. s. 14 of t h e Tasn3ani;tll ('ode. 20. ( ' l a i n o f ~ . ~ g !i> t dt~alt\\it11 in s. 32. Some rules excltltling t h e deietlce \ of mi5t;rke of l a c t In relat~ori t h e age of tile victilll 111 ccrtaiii scxual to o1tcnct.i a r c t o 111. t m n d in s . 229 aiitl 362. (\V..i. Cvdc ss. 22, 205, a n d 330). 21. l ' l ~ c x p r e s i o n "ollc~lcc.> . . of advertence" is used i11 t h c t e x t itlbtead c . of " ~ ~ t l c ~ n c c s rc.cluil-ilii: IIIOIS rcn" because t h e t e r ~ l l" ? ) ! ( - I / , I ~ U " l i 1101 u ~ c d eitlicr the. (jucc~n~lancl t h e IT..!. Code, a n d i:, r i o t a p p l ~ c a b i c ~ 111 or to < ~ t l e l r c e ~ ~ruclc!- tl1t.111: Sec Il'lligc,r .SJi?ii, ( ' ~ ~ i i i i r i c . I:O~IIIL~.I,l ! l O i l l ( Similarly, t h e generic \ ~ o r duntltr 4 C.I.1 7 , I r r t l '. J these Codez i-. "ottcwce" and not "crime", \vhicli 1s usrtl to cieeignatc* t h e more serivux oflcnces. 18. s. 36. I ! ) . ss. 24 a n d A(; 01 t h c T h e Reasonableizess of Mistnlze zlz the Criminal Laze1 49 from the opposite point of view, if the negligence defence of mistake is to be found in s. 24, where is what a common lawyer might call the melzs rea defence of mistake to br found ? I t is proposed to furnish the answers to these questions 11y inquiring into the application of s:. 24 to tvilful murder, house-breaking, burglary, and rap?. (i) LZ'ilfi~l,%Zt~rder. Students at the Law School of the Unil-ersity of Queenslantl Ivere recently asked to consider the following problem. D2Vis dri~.ing some sheep along a country road at dusk. He sees a small sl~ape mo1.e towards the flock some waj. ahead. Thinking it is zt dingo about to attack the sheep, he shoots and kills the intruder. \\.hen he reaches: the body he discovers he has killed, not a dingo, but a child. He is charged under s. 301 of the Code with wilful murder. The jury find that D honestly believed he was shooting at a dingo, but that the mistake was not a rc~asonableone in the circumstances. Should D be convicted ? To these fact; must be added the definition of wilful murder. Section 301 :-Except as hereinafter set forth, a person who unlawfully kills another, intending to cause his death or that of some other person, is guilty of wilful murder.23 By s. 291 an unlawful killing is one which is not authorised, justified, or excused by law.23 The opposing arguments may be shortly stated. D relies on the fact that an essential element in the crime of wilful murder is proof by P of an intention on D's part to kill a human being. Since, owing to D's mistake, P cannot prove this element, D cannot be convicted of wilful murder. P's reply, however, is formidable, although the absurdity of the result leaves us in no doubt that it cannot be the law. According to P, D cannot be heard to say that the element of intention to kill a human being has not been proved, for the only way in which D can demonstrate this is by pointing to his own mistake. The Code, which by the Criminal Code Act, 1899, s. 2, "shall be the law of Queensland with respect to the several matters therein dealt with", and which is therefore the only source of law on any subject with which it deals, legislates for the defence of mistake in s. 24. This section clearly restricts the defence to reasonable mistake, and the jury have found that D's mistake was not reasonable. Therefore D cannot rely on his mistake as an answer to any element in the offence charged. Therefore D must I)e convicted of wilful murder. Obviously P's argument cannot be correct, for it is unthinkable that if the jury's findings had been made as a preliminary to a 22. 1) stands for t h e defendant to a criminal charge a n d P for t h e prosecutor. 23. \V.r\. Code s . 278. 24. W.A. Code s. 268. 5(1 l'he University of Queerz~landLaw Joztrnal request for a direction on the law to assist them in arriving at their general verdict, the trial judge would have been obliged to tell them that it was their duty to convict of wilful murder. Equally obviously, the difficulty arises from the inclusion in s. 24 of the word "reasonable". Since it cannot be assumed that the requirement of reasonableness is nierely to be overlooked or explained away, the problem is to retain it but to fit s. 24 into a scheme of the Code which does not lend itself to anomalies of this kind. I t is submitted that the clue is to be found in the last sentence of s. 24: "The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject". At first sight the sentence seems to he superfluous, for any statutory provision may be expressly or impliedly excluded by any later statute, and the Code is not peculiar in this respect. Further reflection, however, may lead to the different conclusion that the first paragraph of s. 2.2 does not necessarily stand or fall as a whole, but applies only so far as its terms accord with the elements of tlie particular offence under consideration. On this view the function of the sentence quoted is to make it clear that the first paragraph of s. 24 docs not apply in its entirety to offences with the definitions of which any part of it would be inconsistent. So far as the requirement of reasonableness is concerned, sucli offences fall into two groups, those needing proof by P of what Professor Perkins calls a "specific intent or other special mental element", and offences of strict responsibility. There is an inconsistency between s. 24 and offences requiring a specific intent, sucli as the intent to kill a human being in wilful murder, because it is a contradiction to say that P must prove a certain mental state on D's part, and yet allow D to be convicted if a reasonable man would not have held the belief which D actually had. There is an inconsistency between s. 24 and offences of strict responsibility because if D is strictly responsible on proof by P of the criminal act alone, D's beliefs are irrelevant whether reasonable or not. Offences of strict responsibility will not be further considered here.25 In the problem D's answer to P's argument is that the requirement of reasonableness in s. 24 is irrelevant because wilful murder is not an offence of negligence. Another way of putting the point is to say that since there is an inconsistency between the general section 24 and the particular section 301, the particular, in accordance with the usual rui^e of interpretation, prevails over the general t o the extent of the inconsistency. Therefore the definition of wilful murder in s. 301 i5 not to be cut down by the word "reasonable" in 25. The law relating to strict responsibility in Queensland is examined by the present writer in a forthcoming article in the Modern Law Review. Thr, R e a s o ~ ~ a b l e ~ ~ t , s , of Mzstake ZII the Crlm~nal Luii 51 . 24. 'Therefore for wilful murder. 1)'a miitake operate, to prevent his conviction \17hetIier I> should I w :~cquittcdaltogethrlr or convicted of rnanslaughtcr insteadM iii not clear or1 the fact5 of the problem. Thc jur?- have c,~tal>li.;lir.d tliat D was nr.gligc~nt, ~ u tto support a I c.on\.iction for rna1~-laughterthere would have to he a finding, not int.rt\ly of ~iegligence, 1)ut of criminal ncgligence, for under thc ('odes, as a t common law, a higher dcgrec of ncgligcncc is rrrluirc>cl for criminal than for civil lialjility.9' In ;lndcrso~z 7,. Arj~strom" Phi111 j. rejected a n argumcmt 1jv counsel, to the effect that s. 24 had no application to offences und'r thc Code which contained the word "knowingly", as "unthinkable", o n the ground that it n.ould then have an application to homicidc and stealing, and that to exclude the defence of mistake from tlicsc offences would be absurd. His Honour's comruent suggests that there Inay have hecn some misunderstanding between himself and counsel. I t is quite clear that the tirst l~aragraphof s. 24 cannot apply in its entirctj- to offences whicl~ can 11c committc~d only "knowingly", any more than it can appl!- in it> entirety to offcncc,. rclquiring a specific intent. But eclualll., t h e firht paragraph of s. 2-1 al)plies to any offence so far as it is not inconsistent with the clefinition of that offence, and therefore ;~pplieato a limited extent to offences which can be c o m m i t t ~ d only "knowingly". The relationship between s. 24 and the definition of the particular offence is seen readily enough in wilful murder, t o which the intention t o kill a human being is ccntral. I t may be instructive, however, t o examine the operation of mistake in a n offence in which the specific intention is found alongside aonle other requirement which can be fulfilled through ncgligence. An example in housebreaking undcr- s. 419 (I ) :Any person who breaks and enters the dwelling-house of another ~ r i t l iintent to commit a crime therein is guilty of a crirne.29 2 In(1c.r tht. po\\ri- i t 1 s. 571; (\V. ('otltx 5 . 593). 1. 2 7 . Cn/icc,o/il?it ; . li'. (Ill.52) 87 ('.I..K., I 1.j. 13ut see t h e conxr~ncing r i t i c ~ s n ~ c of this ca3c h>- I'eter HI-ctt, .lIir,7~l~cii~iilrv ii'tr ~Ilotovisl (1!433), 27 cr~id . \ u t . I.a\v Jour.. 6 arid 81). 2s. ;1!l11- St. 13. (j~1.5(i, 7 2 . 1 l ~ n t ~ ' v s i d 1~ ~ v k ~ ' rI;i~d('vcctioii7,. l i i r t ;I!tlSJ Ii ~ .s' S t , K. ()tl. 1 0 , \ ~ l ~ e r e ruihtake ( ~ ffact \\a\ conil~lcrctiin rcxlation to ;L ~tirtutclrv offencc 01 "\<~lfull\-" fail~nr:t ( ~ ~ ~.t .l i \\lth ~an ar11itr:ttion c i~l .I\\-arti. I; il-relc\-:rl~t hcrc l,cciu>e t h c ;tatutc \vas a C ' o n ~ ~ i i ~ ~ ~ \ \Oa ~tCi. e Il l C~~tnrnorr I)I iiiciplt.~ la\\apply t o ('ominon\\-ealtll r,ffences. In l;o~t.,iircii i . l~i~r.lsi~u l ! l l S ] I 2 (!.J.I'.I<. ( lUS, ivlrci-tl 5 . 91 \\.;rs applletl t u a n ofrtict. of " i n t e ~ ~ t i o i ~ ; trl~lit~c,r;rte" or l ~nlliction ~ ~ n n e c t ~ ~ pain -on a n ;1111nl:i1, ul iar) 110 tlliticrllt! x . t.t~r~~liutc.recl i; L~ccauset h e mistake seems to have 1)rt.n rcg;ir(lrcl as reasonable. 2 : ) . IT'..\. C'oclt, s. 401 ( 1 ) . 52 ?'he U ~ z i v e r s i ~of Quetvzsland La7~1Journal y I) breaks and enters his neighhour's housc intending to takc parkct of cigarettes 1 ~ Ilas seen lying on a table through thc window. . On his trial he assrrth two mistakes. First, he maintains that he thought the house was his own, which is identical in structure and himilarly furnished, and broke in because he found when lie got to the front door that he had lost his key, Second, he thought tile packet of cigarettr~s was his own. The jury find that both mistake.; were genuine but that neither was reasonable. D cannot be convicted because his second mistake amounts to a claim of right with s. 22 of the Code. As at common law, the particular form of misapprehension called claim of right does not have to be reasonable. Since D's defence comes squarely within s. 22, there is no need to invoke s. 24 at all. Indeed, it seems probable that s. 24 cannot be i ~ ~ ~ r o kfor , 22 should prevail over it as a special section over a e d s. general one in the aame way as a section defining an offence. Thc relevant paragraph of s. 22 runs as follows. Section 2 2 : - . . . a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud. But suppose now that the jury had found that the first mistake was genuine but n in reasonable, and that D did not make the second mistake a t all, h i real belief being that someone had left the cigarettes behind by accident whilst visiting D earlier that day. I t is submitted that D should he convicted, for there is nothing I11 the wording of s. 41!b (1) to exclude responsibility for negligence so far as the requirement that the dwelling-house be someone else's is concerned. If there is nothing expressly or impliedly excluding the first paragraph of s. 24 or any part of it, then that paragraph applies in its entirety where mistake is raised, for its concluding sentence makes clear that s. 24 applies unless excluded. I t is submitted that the same reasoning applies to any other clement of an offence which does not in terms require advertence, such as the circumstance that a housebreaking a t night is burglary: if Id pleads on a charge of burglary that he thought it was daytime, his mistake must 11e reasonable to succeed.30 Conversely, where there is included in the definition of an offence the word "knowingly" or "wilfull$"' or some synonym, it follows that, under the Code as a t common law, a mistake need only be genuine and not also reasonable. (iii) 4 Suggestioa for Reform. , I t will be seen that in the result the position under the Queen\land Code is the same as the common law position as stated by 30. Cp. Smith, The Guilty Mlnd z?z the Crirn~+lal Law (1960) 76 L.Q.R. 78, 80 ff. T h e Reaso~~ableness Mistake of 2'12 the Criminal Law 53 Professor Perkins :-"If no specific intent or other special mental element is required for guilt of the offense charged, a mistake of fact will not be recognized as an excuse unless it was based upon reasonable ground.;." I:ut it will also be seen that the route to this result is not ohvious, or a t least not as clear as it might bc. An improvement in thtx drafting of s. 24 is desiral~le. The present form of s. 24 ha:, the advantage that there is normally no doubt whetlicr any particular offencc., or any particular element in an offence, can be committed negligcntly: since the first paragraph of s. 24 applies in its entirety unless expressly or impliedly tbxcluded, an offence can be committed negligently unless its dt:finition is inconsistent with a requirement of reasonableness. I f , for example, there were a sectioli htating merely that a mistake of fact must be reasonable where negligellct. is charged but not \Acre some degree of advertence is required, this would not help to sol\-e the problem of identifying those elcnlents of an offencc ~vhichcan be committed negligently.31 It is submitted that s. 24 would br improved if mistake of fact were dt~finedin some sucli terms as are ubed in thc iirst paragraph noit, but omitting the wo~-d "reasonal~le", and then adding on a pro\.iso to the same effect as l'rofessor Perkins's formulation. The result would 11e along the followirlg lines. X perzon who does or omits to du an act under a mistaki.11 11elief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the rral state of things had been sucli as he believed to exist. Provided that unless an intention to cause a particular result is an element of the offence constituted, in whole or part, by a an act or orni~sion,~?mistakc of fact ,>hall not escusc frorn criminal responsibility unless it was based upon rcasonahlc grounds. The word "l~onest" is omitted from the first paragraph of this dl-aft because it is riot thought to add anythirig of substance. To speak of a belief as dishonest is to imply that it is not held at all. I11 the normal usage of words the phrase "dishonest belief" is a cwntradiction in terms, for the kind of dishonesty meant is 31. The formula adopted in the Tasmanian Criminal Code s. 14 is defective from this point of view:-"\Vhether criminal responsibility is entailed by an act or omission (lone or made under a n honest and reasonable, b u t mistaken, belief in the existence of any stage of facts the existence of which \i-ollld excuse such act or omission, is a question of law, to be determined on the construction of the statute constituting the offence." 3%. Cp. the second paragraph of s. 13:-"LTnless the intention to cause a particular result is expressly declared to be a n element of the offence constituted, in M-holeor part, by a n act or omission, the result intended to be caused by a n act or omission is immaterial." i n c o n ~ l ) ~ l t ~uitlie l~elief. I t is thercfol c 3 ~lnnecc\.al-y to l~l th;it a mktaken helief be honcst.33 I cquire I t is submittc~dt h a t , clllitc apart from any new cod(,.; ~vhich ma). connc into I~c,ing else\vhcre in the common law u-orld, thc, (,)ucc.~~hland ('od(- ivould I,c irnpro~.ed if the present 1. 24 were rc,l)l:~cc.tlI)? tlir draft sectiorn proposed above. Thr. rfiect \voul(l be, to rcinlove ol,scu~-iticswithout changing the lawl.. S < ) s ttlii, iniluir\- must l ~ e made, \-chat is a "specific intent or otlit%rsp('cia1 rnc,nttil clcmcnt", or, in the words used aljo\.i.. "rill intc,ntio~ito cnuhc. a j)articul:~r result". 'l'lle clucstion involve.; itlclitif!.ing vffc~icc. intention. I t has already 11cc.n heen that such of otftxnccs fall into two clab\c.h, those which btand or fall i , ~ tlit=ir c~ntirc.t!, on the clllc,\tion of intention, sllch as ~vilfulrnl~l-de~. under tlirl ('otle and most fornii of murder at cornmon law, anti thoaca ivllicll con.;i.%t1);nrtly of element.; of interition and partl!- of c,lc~nents of n(~gliscnci,, bncll ;L> houbel~rc>nking undc,r the, ('ode ant1 at curnmon 1 A11 offcncc,s of intcxrition are tlcfinetl in 011t7 of tn.o nri!.s. c~itllc~r ~-c~clilir-c,n~c.~lt tlir, of ilntrntion is c~.\;li~i.s;ocl tllc, df~tinition. in or it is imljliecl in the. nattlrt, of tlii. offenct). Esampli*-of tlic, fornlc.1 , I I H , lc%gio~i.1 t I - t l c . c - c L ~ i : r l - \ . to rt~nieml)oiunlj- that ;I I c~cluil-t~~nc.nt tlltrt bomctlling i l l , tio~;c"lillo\~i~~gl>.""\vilfl~ll~-" jti>t a-. mlicli or i? ,in c.sl)~-es rrc~~]nirc.nnent intention as the, term "nitii intont to" of (lo son~c>tlling. .In e~arn1)lt. implied i l l t i ~ ~ ~ i iari\iiig frorn thc. of on ~ l a t u r eof tlncx off(mce is raljc. Rape ib cietincd in tlic, (`ode :i. follo1v1. Sr'ctior~ 347 :-~--.in\.pel->on who has carnal lino\vledgc, of ;I wornan, or girl, not his wife, ~vithollt her conbent, or ~ v i t h her consent, if tlic consent is obtained 11y force or 1)). mcxany of threats or intimidation of any kind, or 1)y fear of 1)odily harm, or I)!. nirbans of falsc and frnuclult~nt~-c,~)~-t.>.r,nt;ition-; 21to the natrn-c. of tlic act, or, in the cast. of a 111ari.icdn.oInan, I)y personating llcr huslnnd, is guilt>- of a CI-imc,n.11icli icalled rapt.:'" Sowhere in tllis dt+inition is thew any requirement of intention to hring ;rhont a specific rclsult. I t is suljmittcd as self-el-ident that a clcar intr>ntion ;it Icait t o have carnal knowlcdgc ib iniplied in the ofic,ncc, for onti can scarcely ha\re intcrcou1-bc, tlir.ot~gh mc,rc> nc~gligc~nce. What i.: fic7rhnj)h less clear is nht~tllcltlic clcmcnt of non-conscmt on tlnc part of the woman is a matter of intention 0133. Or hr~nuf i d c . c]' (!ucen as to whether the woman with whom he had intercourse was his wife, and it is not ~ a s y see how one can overbear 11). threats or mislead by false to and fraudulent misrepresentations through mere carelessness. I t is ~ u b m i t t e dt h a t on these issues, as with carnal knowledge, in the \.cry nature of things the burden rests upon I' of proving intention t)y I), or at least r~cklessnesson D's part as to thc effect of his actions or state~cents. This bring so, there is a strong infe~.ence that every element in rape was intended by the draftsman to require actual knowledge on D's part and that the wording of s. 347 has this effect. Aforeover, it is desirable to keep tl-ie criminal law under the C'ocir in line with the common law where this can be done without 1-iolence to the wording of the statute, and it seems t h a t 3 3 . Hence the rule of practice nhich requires corroboration on a charge of rape, and the importance attached t o a n early complaint by the v i c t i ~ n . 56 7'hc U1li7*ersityof ()uee~lslu?zdL a a ) J o u r n a l thc interpretation of the offence of rape put forward here represents the position a t corn~llon law.36 I t is suhmittt~tfin conclusion that hitherto, both at common law and under the* Codes, too little attention has I)ec!n paid to stating the effects of mistake of fact upon criminal responsibility wit11 precision. 'Tllis has led at common law, not on]), t o recurrent uncertainty as to n.hat those effects are, but in some instances to important, and not necessarily desirable, inroads on tllc principle of meus rca itself." Under statutc there has emerged the possibility that offences of negligenct, may be created through simple inad\.crtt~nceto tlie importance. of the word "reasonal~le". Under thc Codes n proctL.s. of caref111 analysis is necessary if absurdly unjust results arP to 1 1 avoid(.tl. One can only hope that tht. futurtx ~ xvill tclI a difftlrc,nt tale. 36. See t h e discussion 1)y >Io~-rl\ ant1 l'urncr in (1954) 2 l'ni\-. (!id. I.. J . , 2.17. 3 7 . Conspicuuusly in k)igain>-. Ilver since Tolsoii (1889) 23 Cj.13.I). Itis. mistake, t o Ije a defence t o I)iganly, has had to l)e reasonal~le. There is n o obvious virtue in this rule. *I.L.hl. ( I . o n d ~ ~ nSenior I.ccturer in Law in t h e Vniversit!- of .ltlrlairlt.. );