Factors Affecting Liability V – Consent & Mistake – Honest & Reasonable Belief
Consent
Consent relies on the victim having agreed to the conduct in question & being in a position to agree
• A person must have the capacity to consent
• In most sexual offences, young people below a certain age cannot give valid consent
• Re D (A minor) [1984] (House of Lords)
Facts: A mother wished to have her mentally abnormal daughter sterilised. There was a question as to whether the mother could consent on behalf of her daughter.
Decision: The mother could not give consent on behalf of her daughter for an operation which was not for the benefit of her daughter.
• Consent may be a defence to a charge of assault if it is valid
• However, a person cannot always give valid consent to bodily harm falling short of death
Donovan [1934]
Facts: The appellant beat a girl for the purposes of sexual gratification with her consent.
Decision: An ordinary person cannot consent to the infliction upon himself of harm which would constitute or exceed bodily harm.
There are well-established exceptions to this rule (e.g. in lawful sports)
Billinghurst [1978]
Facts: Question of acts done outside the rules of the game was addressed.
Decision: Players consent to force of a kind that could reasonably be expected to occur during the game (i.e. in the course of play, as opposed to a punch thrown after the play had stopped)
R v Brown [1993] (House of Lords)
Facts: The appellants were a group of sado-masochistic homosexuals who over a ten year period participated in acts of violence against each other for sexual gratification. The victim in each case consented to the acts being committed & suffered no permanent injury. They were convicted of assault occasioning actual bodily harm & unlawful wounding.
Decision: Their appeals were dismissed.
A person cannot consent to the infliction of harm above that which is transient or trifling.
It is not in the public interest to condone the infliction of bodily harm for no good reason, & sexual gratification was not a good reason.
An apparent consent will be treated as unreal & hence no defence when
i) the victim is very young & unable to comprehend the nature of the act
ii) the victim’s apparent consent is procured under duress
iii) the person, apparently consenting, is induced to do so by fraud
• Where there is an honest & reasonable mistake as to the nature of the act forming the basis of the consent, then the mistaken facts will be accepted as fact for the determination of the consent
Williams [1923]
Facts: The defendant was a singing master who persuaded a female pupil to submit to sexual intercourse under the pretence that it would improve her breathing. He was convicted of rape.
Decision: His conviction of rape was affirmed.
If the woman knew nothing about the nature of the act (i.e. made a mistake) & thought that her instructor was doing something merely to improve her breathing, then her consent would have been improperly obtained & not be valid.
However, if she understood what was occurring & was willing to be persuaded that one of the benefits of sex was improved breathing, then she did not make a mistake as to the nature of the act & her consent would be valid.
Mistake
• A belief in a particular set of facts which is not correct
• Mistake of fact may be raised by the defence to negative the prosecution’s case that the accused possessed the requisite mental element for an offence
• For statutory crimes, the defence of honest & reasonable mistake of fact is available for a strict liability offence, but not for an absolute liability offence – He Kaw Teh (1985)
• The defendant bears an evidentiary burden, & the prosecution is then required to prove the relevant mens rea beyond reasonable doubt - He Kaw Teh (1985)
Proudman v Dayman (1941) (High Court)
Facts: P was convicted of allowing H to drive a car without a licence.
Decision: P was denied special leave to appeal.
Per Dixon J: As a general rule an honest & reasonable belief in the state of facts which, if they existed, would make the defendant’s act innocent, affords no excuse for doing what would otherwise be an offence.
Ignorance & inadvertence are not enough for a mistake to be made. The defendant must make a positive act of turning their mind to the issue & then make a mistake, as opposed to not considering the issue at all.
Here, it was not enough that P didn’t know whether H had a licence or not. To rely on the defence, she must have had a belief that H didn’t have a licence.
SRA v Hunter (1992)
Facts: SRA was convicted of polluting water contrary to statute. In defence, they said that they believed all systems to be working properly.
Decision: Mistake must concern a positive & affirmative belief in a certain fact or state of affairs, as distinct from mere absence of knowledge.
He Kaw Teh (1985) (High Court)
Facts: The accused was charged with importing heroin into Australia contrary to the Customs Act 1901 (Cth).
Decision: The fault element had not been displaced. The prosecution must prove the accused knew the item in his possession was a narcotic substance & that he knew he was importing a narcotic substance.
There are three categories of statutory offences:
i) Mens rea offences – an offence where the prosecution is obliged to prove mens rea (subjective knowledge)
ii) Strict liability offences – an offence which does not require any proof of mens rea, but to which the common law defence of honest & reasonable mistake of fact applies (e.g. culpable or dangerous driving: Jiminez (1992))
iii) Absolute liability offences – an offence which does not require any proof of mens rea, so that the offence is made out so long as the act of the accused is voluntary (no defence of honest & reasonable mistake of fact)
There is a presumption that mens rea is an essential ingredient of every offence.
Per Brennan J: This presumption can be displaced by
i) the words of the statute (absence of words like “knowingly”, “dishonestly” or “wilfully” which imply mens rea)
ii) the subject matter of the statute (if acts are for regulative purposes, it is more likely that the subjective element will be displaced)
iii) considering the consequences for the community
iv) considering the consequences for the accused if convicted (the more serious the consequences for the accused, the less likely that the subjective element will be displaced)
• Ignorance or mistake of law is no defence to any crime, however reasonable that mistake may be – Von Lieven v Stewart (1990)