Misstated Law: A Missed Opportunity? Ostrowski v. Palmer

The High Court of Australia’s decision in Ostrowski v. Palmer1 raises significant questions about the respective roles, under the criminal law, of the mistake defence and the principle that ignorance of the law does not excuse. The High Court decided that a fisherman who believed that there was no prohibition against fishing in particular waters, because of what he was told by a public official, was unable to rely on the defence of mistake of fact. Three judgments were delivered in the High Court and each raises beguiling questions as to the rectitude of disallowing a defence, resting on ignorance or misstated law, in all cases. It may now be time to reconsider the approach to defences premised on a lack of awareness of the relevant law, particularly if such a misapprehension was induced by the relevant public authority. Mr. Palmer, a professional fisherman, mistakenly believed he could fish in forbidden waters. Mr. Palmer’s belief that he was permitted to fish in the prohibited waters was induced by the conduct of a public official. Mr. Palmer asked the government official for a copy of all the relevant fishing regulations which identified the waters in which fishing was prohibited. The public official purported to give Mr. Palmer a full set of regulations. The documents given to Mr. Palmer were, in fact, incomplete and did not identify all prohibited waters. As a result, Mr. Palmer was caught, charged and convicted with fishing in the very waters he had believed were not restricted waters. The Full Court of the Supreme Court of Western Australia overturned Mr. Palmer’s conviction on the basis of the mistake defence under section 24 of the Criminal Code (Western Australia).2 This section provides that a person who does an act under an honest and reasonable but mistaken belief in the existence of “any state of things” is not criminally responsible.