The High Court in Australia has handed down a decision today which essentially reinstates the "honest mistake" defence in New South Wales.
The honest mistake defence requires that the defendant prove that they honestly believed that the "victim" was of the age of consent or above at the time the offence was committed.
In essence the following must be proved:
- the defendant honestly and reasonably believed their partner was at least 16, the age of consent;
- the partner consented to sex;
- and, in any case, the partner was at least 14 years old.
The NSW Crimes Act had been silent on this point since about 2003. However, with this decision that silence has effectively been removed.
So, next time you are in NSW keep this in mind if you are not sure and decide to go ahead anyway!