Alan Dershowitz, acting as Tyson's counsel, filed an appeal urging error of law in the Court's exclusion of evidence of the victim's past sexual conduct, the exclusion of three potential defense witnesses, and the lack of a jury instruction on honest and reasonable mistake of fact.
42.
Since the mens rea for sexual assault includes a subjective appreciation of the fact that the complainant is not consenting, the " defence " of mistake of fact in this context is thus properly understood as a failure on the part of the Crown to prove its case.
43.
The root idea was stated by three Lords of Appeal, Lord Shaw, Lord Sumner and Lord Carson, in " R . E . Jones, Ld . v . Waring & Gillow, Ld ", which dealt with a particular species of the category, namely, money paid under a mistake of fact.
44.
I believe that if you analyse a number of these flashpoints situations, the start point is where Ottava has misapprehended something, or made a simple mistake of fact, and the escalation arises because he has no suitable tactic acceptable to himself, for backing out of the situation or letting it drop.
45.
I have held, after examining " In re Diplock " [ 1948 ] Ch . 465, that under English municipal law a party who pays money under a mistake of fact may claim to trace it in equity, and that this right depends on a continuing right of property recognised in equity.
46.
This meant their breach of the law had happened largely due to an exculpating mistake of fact on the part of Morrow, who intended to end the stunt before crossing into restricted territory, but who received no explicit indications as to where that territory began " and was indeed waved farther into it by the police.
47.
Concerning the requirement to resist a " lawful " arrest, the defendant only lacks the required " mens rea " if he believes in facts which, if true, would make the arrest unlawful; not just that he believes the facts as they are make the arrest illegal & ndash; a mistake of fact suffices, a mistake of law does not.
48.
If he did not know the action was forbidden, or if a mistake of fact concerning his circumstances led him to believe that he was permitted to take that action in that situation, he is considered to have done the action " beshogeg ", " not on purpose . " If he was forced to do the action, then it was done " beones ".
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