[1969-1982] NLR (D) 84

IN THE SUPREME COURT OF NAURU

Criminal Appeal No. 1 of 1980

THE DIRECTOR OF PUBLIC PROSECUTIONS

v 

AKIBWIB ARUBIBWIN

4th March, 1980.

Criminal law - Mistake of fact as substantive defence - mistake must be both honest and reasonable.

Appeal against the acquittal of the respondent of four offences against section 2 of the Compulsory Education Ordinance 1921-1967, i.e. failing to report the reason for the absence from school of a child of which he was the guardian. The magistrate accepted that the respondent honestly believed that the school authorities did not wish the child to attend school. He did not consider whether the belief was reasonable.

Held: For a mistake of fact to afford a substantive defence (as distinct from simply negativing mens rea) it must be both an honest and a reasonable mistake. On the facts it was not a reasonable mistake.

Appeal allowed; respondent convicted and fined.

(Note: The Court found it unnecessary to decide another ground of appeal, that an offence against section 2 of the Compulsory Education Ordinance 1921-1967 is an offence of strict liability and that consequently even an honest and reasonable mistake affords no defence.)

P.A. Thorpe for the appellant
The respondent in person

Thompson C.J.:

This is an appeal by the Director of Public Prosecutions against the acquittal of the respondent on four counts of failing to report the absence of a child contrary to section 2 of the Compulsory Education Ordinance 1921-1967. That section provides that all children between the ages of six and sixteen years (fifteen years in the case of European children) must attend school on every half-day on which the schools are open, unless they fall into any one of three specified categories, and that, if a child who is not in one of those categories is absent from school, the reason for the absence must be reported to the teacher-in-charge of the school by the child's parent or guardian. The learned magistrate found as fact that a child aged fourteen years of whom the respondent is the guardian did not attend school on the four half-days to which the counts which are the subject of this appeal relate, that the child was not in one of the specified categories and that the respondent did not report to the teacher-in-charge of the school the reason for her absence. He also found that the respondent may have acted in the honest belief that the school authorities did not wish the child to attend school and that, if he had that belief, he did not act unreasonably in failing to report to the teacher the reason for her absence.

The appeal is taken on two alternative grounds. The first that the offence of non-compliance with the requirements of section 2 is one of strict liability, to which an honest, or an honest and reasonable, mistake of fact affords no defence. The second ground is that the learned magistrate was wrong, on the evidence, in not holding that the respondent's belief was unreasonable.

I do not propose to deal with the first ground as the appeal must be allowed on the second ground. The respondent elicited evidence from the teacher-in-charge of the school that on two occasions the child had been sent home from school, once because she was dirty and not dressed for school and once because she was naughty. He then gave evidence that on the day after one of the days on which the child was sent home she did not attend school because "she thought that she was not wanted any more". He then admitted that he did not approach the teacher to find out whether that was so. In any case it does not explain the absence on the other three days. 

The respondent deliberately failed to report the reasons for the child's absence. His mistake does not negative his mens rea. If it does anything, it affords a justification or excuse for the failure. So the respondent was seeking to raise what is commonly called the substantive defence of mistake of fact. For a mistake of fact to afford a substantive defence it must be both an honest and a reasonable mistake. (See, e.g. R. v Tolson (1889) 23 Q.B.D. 168, R v Gould (1968) 2 Q.B. 65, and D.P.P. v Morgan (1976) A.C. 182, 201-203). The Ordinance clearly imposes a duty on a guardian to send his child to school, and to report the reason for any absence. It is for him to ascertain whether or not there is a valid reason for any absence. It is possible, but unlikely, that he may have an honest belief in a fact which he has not attempted to ascertain; but the mistake cannot be regarded as reasonable.

The learned magistrate erred in considering, in respect of the mistake of fact, only whether the belief was honest and in looking for reasonableness only in respect of the acts which resulted from that belief and not in respect of the belief itself.

Accordingly the appeal is allowed. The order acquitting the respondent on the four counts which are the subject of this appeal is set aside and he is convicted of the offence charged in each of those counts. The maximum fine which can be imposed for each offence is $4.00. The respondent is sentenced to pay a fine of $1.00 on each of the four counts.