A “Rational and Humane Criminal Code”? Bell v Tasmania and the Reach of Honest and Reasonable Mistake of Fact

Abstract

In Bell v Tasmania, the appellant (‘Bell’) was convicted of the Tasmanian offence of supplying a controlled drug to a person aged under 18 years. Bell claimed that he believed on reasonable grounds that the person to whom he supplied the drug was 20 years old. However, the trial judge refused to leave honest and reasonable mistake with the jury because, even if Bell’s asserted belief had been accurate, he would still have been committing a (much less serious) offence: supplying a controlled drug to ‘another person’. This column argues that the High Court of Australia should uphold Bell’s submission that the trial judge was wrong to withhold honest and reasonable mistake of fact from the jury. A person should not be convicted of a crime that s/he reasonably believed her or himself not to be committing. That is so even if s/he is intentionally committing some lesser crime. The High Court should reverse its past decisions that hold otherwise.