Mistake

ss 76 and 79

Common law approach

Ad hoc development

Reasonable grounds requirement (Tolson) If it affects MR, doesnt matter if unreasonable (Morgan)

Reasonableness requirement: differs according to context

Self-defense: originally reasonableness required now no (Williams, Beckford) Duress: reasonableness required Note: PC approach applies good faith (due care and attention) requirement across the board
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Role of mistake

YMC

Mistake can only be raised via s. 76 or s. 79

Competing approaches in Singapore

Treat mistake of fact as affecting MR (when statute does not expressly require MR, presumption of MR judicially read into statute) For S/L crimes: consider the mistake of fact made when deciding on whether the A acted with due diligence

s. 76 bound by law

76. Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.

s.79 justified by law

79.Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it.

Meaning of mistake

Not defined in PC Ratanlal and Dhirajlal

unconsciousness, ignorance or forgetfulness mistake is only a mistaken, positive perception

Indian courts have drawn distinction

Spore courts

have not yet drawn such distinction

Divide between law/fact

Why dont we include mistake of law? Is it over-rated? Is it realistic? US Model Penal Code s.2.04(1)

ignorance or mistake as to a matter of fact or law defense if negatives the purpose, belief, recklessness or negligence required to establish a material element of the offence
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Divide between law/fact

Boundaries between law and fact: not clear

Glanville Williams: something perceptible by the senses

Believed that their superiors order was legal (mixed law and fact?)

Arumugan

Indian cases: if mixed, will hold to be mistake of fact --- is it really mixed? Kochu Muhammad

Married second time believed that first marriage had been dissolved Held: mixed law and fact

Bound by law

43.The word illegal or unlawful is applicable to every thing which is an offence, or which is prohibited by law, or which furnishes ground for a civil action: and a person is said to be legally bound to do whatever it is illegal or unlawful in him to omit.

Justified by law

No definition in PC Abdullah v R as long as legal

According to modern ideas, as embodied in the Penal Code, an act only acquires its criminal character by being forbidden by law (idea of residual freedom). What the law does not forbid, it allows, and what a law allows is I think justified by law

What if mistakenly think was committing a different crime?

YMC: should be judged based on his mistake

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Believed in good faith

52.Nothing is said to be done or believed in good faith which is done or believed without due care and attention.

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Standard of good faith

Recall Iris Tan

Not whether a reasonable person could make the mistake

Note that this relates to perception of facts not your behavior

But your behavior could be used to demonstrate that your perception was reached in good faith

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Alternatives to reasonableness

Simester & Sullivan: purely subjective approach

Difference between perception (as long as honest) and response (requirements of reasonableness, proportionality)
Contextual approach as to whether reasonableness should be required E.g. PD you are going to exercise force should impose reasonableness E.g. Rape societal concerns E.g. police officer with firearms training hold to higher standards
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Ashworth

Alternatives to reasonableness

US MPC
s.2.04(1) ignorance or mistake as to a matter of fact or law defense if negatives the purpose, belief, recklessness or negligence required to establish a material element of the offence Commentary: There is no justificationfor requiring that ignorance or mistake be reasonable if the crime or the element of the crime involved requires acting purposely o knowingly for its commission.

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Standard of good faith

Objective or subjective: how much individualized features of A should we consider? Excusatory nature of the defense
Supports taking into account individualized features e.g. capacity and intelligence Mohd Amin were educated Chirangi physical disabilities (cataract affecting vision)

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Teo Eng Chan

A was charged with rape & relied on mistake of fact under s 79 of the Code. Consent: S. 90 consent vitiated if 1.given under fear 2. A knows or has reason to believe S. 26. A person is said to have reason to believe a thing, if he has sufficient cause to believe that thing, but not otherwise. Established that was given under fear As argued that no resistance this may be crucial when force used but here no force used did judge go on to examine if As had sufficient cause?

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Teo Eng Chan

Mistake Section 79 requires Ds mistaken belief that V was consenting to have been in good faith, that is, with due care and attention. Section 79 does not recognise the English common law ruling in DPP v Morgan that Ds mistaken belief need only be honestly held.

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Standard of good faith and mutuality: gender gap

Problem of miscommunication in rape cases

From stranger rape to date rape --- Definition of rape shifts from force to nonconsent As are doctors, V is nurse party travel to As house rape takes place overnight travel back Quoting another case arising from same case It is time to put to rest the societal myth that when a man is about the engage in sexual intercourse with a nice woman a little force is always necessary The essence of the offense of rape it the lack of consent o the part of the victim. I am prepared to say that when a woman says no to someoneany implication other than a manifestation of non-consent that might arise in that persons psyche is legally irrelevantAny further action is unwarranted and the person proceeds at his peril. In effect, he assumes the risk.

Commonwealth v Sherry (1982) Massachusetts Supreme Court

Strict liability for consent? Why? Courts trying to send a signal? Is this appropriate or fair? Note that most other US courts have chosen not to follow this precedent

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Standard of good faith and mutuality: gender gap

Commonwealth v Fischer (1998) Pennsylvania Supreme Court

Two 18 year old university students - 1st sexual encounter that is aggressive in nature few hours later another encounter V says no, A says no means yes A realizes she is serious and stops Note that Pennsylvania law had been amended to include general defense of reasonable mistake of fact but court noted that legislative debates intended this to extend to date rape without force, rather than Fischers facts Yet, the court recognized that Changing codes of sexual conduct, particularly those exhibited on college campuses, may require that we give greater weight to what is occurring beneath the overt actions of young men and women.

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Standard of good faith and mutuality: gender gap

Weiner observes that

A gender gap in sexual communications exist . Because both men and women are socialized to accept coercive sexuality as the norm in sexual behavior The woman, who believes that she has conveyed her lack of consent, may interpret the mans persistence as an indication that he does not care if she objects and plans to have sex despite her lack of consent. She may then feel frightened by the mans persistence, and may submit against her will

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Standard of good faith and mutuality: gender gap

MacKinnon observes

Men are systematically conditioned not even to notice what women want. They may have not a glimmer of womens indifference or revulsion. Rapists typically believe the woman loved it.. the deeper problem is the rape laws assumption that a single, objective state of affairs existed, one which merely needs to be determined by evidence, when many (maybe even most) rapes involve honest men and violated women. To attempt to solve this by adopting the standard of reasonable belief without asking, on a substantive social basis, to whom the belief is reasonable and why --- meaning, what conditions make it reasonable --is one-sided: male-sided

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Contextual approach to consent for rape/sexual offense

Kadish, Schulhofer, Steiker

Sexual assault: if use force or a threat of physical force Sexual offense: if without consent Consent: at the time of the act of sexual penetration there are actual words or conduct indicating affirmative, freely given permission to the act of sexual penetration Different gradations of MR: knowledge of no consent, recklessness, criminal negligence

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