Sunday, October 23, 2011

Law - Litigation Defence "Honest and Reasonable Mistake"

23/10/2011 Evening 7:46pm (Warm Weather)

This afternoon from a Hong Kong drama learn the "Honest and Reasonable Mistake" words, one of the way how to defence yourself when get sue.

After google it, finally get the some ideas from Armstrong Legal, appreciate their good work.

According to the Armstrong legal article, below is the example of the case of Honest & Reasonable Mistake:

Thomas (1937) 59 CLR 279

The High Court held that it was a defence to a charge of bigamy that the accused had believed "bona fide and on reasonable grounds” that he was not married and therefore a single man entitled to marry. The basis of the belief of the accused was that his marriage to his "former wife" was not valid because her decree of divorce had not been made absolute, so that she was still a married woman when he married her.

In upholding the defence of honest and reasonable mistake, Latham CJ said: “The belief was that a decree absolute had not been made by the Supreme Court of Victoria. Whether or not such a decree had been made was a question of fact. If no decree absolute had been made, the marriage of the accused's former wife would not have been dissolved and therefore, she would still have been a married woman when she married the accused. Thus, her marriage to the accused would have been invalid, and he would not have been a married person when he went through the ceremony of marriage with Miss Deed. Thus, if his belief as to the matter of fact mentioned had been true, he would not have been guilty of the offence charged.”


Another case that is worth to read regarding to Honest & Reasonable Mistake is, R. v. Park [1995] 2 S.C.R. 836, is a Supreme Court of Canada.

The accused have to have air of reality to substantiated his allegation that he might have had an honest belief that she was giving consent.

The definition of air of reality test, a pre-requisite test conducted to weigh the defense against a criminal charge. The defense should have sufficient evidential value. The evidential foundation is referred to as the air of reality.

Two instances, air of reality test can be applied are:
1. A prima facie case has been made against the accused.
2. An affirmative defense like insanity defense is raised by the accused.


Reference & Notes:
1) http://www.armstronglegal.com.au/web/page/defence_of_honest_and_reasonable_mistake_of_fact


2) http://en.wikipedia.org/wiki/R._v._Park

3) http://definitions.uslegal.com/a/air-of-reality-test/