Is ignorance of the law a defence in relation to criminal law matters?

by The FindLaw Team

Anyone who has made even a cursory attempt at reading any piece of statute will quickly come to the realisation that there are a lot of laws out there to put it mildly. Due to the sheer volume of laws that exist, means that even the most knowledgeable of legal practitioners wouldn’t know every piece of statute out there, so what hope do non-legal practitioners have? Although there’s absolutely no way which any normal person would be aware of every law, ignorance of the law still is not an excuse if a person commits a crime. 

Ignorance of an offence is not a defence

In Ostrowski v Palmer (2004) 218 CLR 493 Gleeson CJ and Kirby J said (at 500):

“Professor Glanville Williams said that almost the only knowledge of law that many people possess is the knowledge that ignorance of the law is no excuse when a person is charged with an offence. This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware of those elements that constituted an offence.”

Turning to statute, we can look to s 22(1) of the Criminal Code 1899 (Qld) as our example, with the section stating: “Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.”

On an initial reading, it may seem a little harsh that not knowing specific laws cannot be used as a defence, however the rationale is sound because if ignorance can be raised, then conceivably everyone may plead ignorance.

What if someone holds the belief that the conduct is lawful?

In Walden v Hensler (1987) 163 CLR the appellant was found in possession of a turkey and a live turkey chick without licence. Gaudron J said (at 606):

“Section 22 of the Criminal Code 1899 (Qld) is in two parts; the first part gives the expression to the principle encompassed in the maxim ignorantia juris non excusat (ed’s note: ignorance of the law which everybody is supposed to know does not afford excuse); the second part provides, not by way of exception, but by way of qualification to this principle, the defence of claim of right. Such a defence is not constituted by mere ignorance of the criminal law, and therefore must have some foundation or basis independent of a mere belief in a liberty to engage in that which is not unlawful. Equally, however, ignorance of the criminal law does not preclude the assertion of a supposed right, notwithstanding that such assertion involves a belief, founded in ignorance, that conduct proscribed by the criminal law is lawful.”

Sure ignorance may be bliss under certain circumstances, but when it comes to criminal offences, the maxim probably isn’t going to help someone who finds themselves in trouble with the law. 


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