Defence-of-Mistake-of-Fact

Why the Defence of “Mistake of Fact” in Rape Cases Matters

“That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved” – Benjamin Franklin.

Recently, certain commentators have called to abolish the defence of ‘mistake of fact’ in rape cases. Some advocates for reform have written extensively on the subject but in doing so have misstated how the defence is established and mischaracterised its application in the case law.

The Queensland Criminal code states that “Consent means consent freely and voluntarily given by a person with cognitive capacity to give consent” (Section 348(1)).

The Code also provides a defence of mistake of fact where “a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things” (s. 24).

Importantly, an honest belief must be a belief that is genuinely held and a reasonable belief is one that a person holds that, in the particular circumstances, is reasonable.

Bri Lee, author of consentlawinqld.com states that reform is needed as the law as it currently stands allows ‘calculated, predatory offenders, as well as reckless and opportunistic ones’ to use the defence to ‘evade responsibility.’

When a defendant contests a charge of rape at trial, if the defence of mistake of fact is raised, the reasonableness of the defendant’s belief is to be considered and determined by the jury – 12 members of the public.

It is difficult to imagine circumstances where the defendant’s behaviour was reckless AND reasonable.

The defence is a ‘loop-hole to escape liability.’ It is also incorrect to say that it is irrelevant as to whether consent is given, so long as a person thinks they have consent. The law clearly states the belief as to consent must be genuine and reasonable and those questions are, again, to be determined by a jury, not lawyers or judges.

The state of these laws in Queensland, or anywhere else, is imperfect. We as society live with many grey areas that are subjective and cannot simply be governed or assessed as ‘black or white’ scenarios. This is exactly why our justice system utilises juries, made up of ordinary citizens, to apply common sense and logic to situations. Of course, juries are obligated to make decisions within the bounds of the laws, however issues such as ‘reasonableness’ or ‘genuine belief’ are to be interpreted and applied as they would ordinarily be in any scenario.

It is suggested the law allows a person greater leniency for their actions/decision if they were intoxicated at the relevant time. Again, this is incorrect. The case of Hopper illustrates this point by the comment of the court that, “a mistaken belief that is induced by intoxication is not one that can be considered ‘reasonable’ as distinct from honest” and “if the appellant’s belief that the complainant was consenting was not capable of being considered ‘reasonable’, then it could not affect the verdict in the case.”

In summary, whilst a person’s level of intoxication may affect how ‘genuinely’ or how ‘honestly’ they believe in a certain state of affairs, but it simply does not affect the reasonableness of that belief.

Calls for reform in this area give insufficient consideration to the role of the jury in applying the defence.

Our laws quite appropriately provide for defences which, if successful, require that a jury be satisfied to the requisite standard. To that end, we have summarised below some of the cases identified in the articles and the relevant website, to provide a more comprehensive and accurate reflection of the state of those cases:

R v PHILLIPS

  • A 13-year-old complained of having been raped on four occasions by a family friend;
  • Her version of events suggested the rapes were forceful and without consent, despite admitting only resisting on one occasion;
  • The defendants’ versions were starkly different in relation to the events, in that he stated there was no sexual contact between them;
  • The jury found the defendant guilty of rape x 1 and unlawful carnal knowledge x 2;
  • The only reasonable explanation for the jury’s verdicts are that they did not believe the defendants story and somewhat accepted the complainants version;
  • Obviously, the jury were satisfied that in all the circumstances, a reasonable person would have believed the girl was consenting;
  • The Court of Appeal ruled that the conviction for rape was inherently inconsistent with the two convictions for carnal knowledge. Therefore, the conviction for rape was substituted with a third conviction for carnal knowledge;
  • Significant discussion was conducted about whether to order a re-trial due to the inappropriate behaviour of the Judges associate during the trial.

R v SOLOMON

  • Solomon convicted of rape after trial;
  • Solomon and complainant’s versions of what occurred varied considerably;
  • Complainant claimed she woke up to Solomon raping her;
  • Solomon claimed they engage in consensual sex after spending the night together, drinking, consuming marijuana and flirting;
  • Solomon detailed many, inherently consensual, sexual acts that preceded consensual intercourse;
  • Jury obviously preferred complainant’s version and convicted Solomon of rape;
  • Appeal granted and re-trial ordered because jury were not made aware of ‘mistake of fact’ defence – which would have allowed the jury an alternative consideration, that being the genuine and reasonable belief of Solomon;
  • At trial, jury effectively only had a choice of who’s version to believe;
  • Solomon’s intoxication would only be relevant to his ‘belief’, not ‘reasonableness’.
appeal sentence qld

Can I Appeal My Sentence in Queensland?

Many Australians may find themselves dealing with a Court matter at some point in their lives. And many of those people will end up feeling decisions made against them, such as conviction and sentencing, were made in error. Luckily, a fundamental tenet of our legal system is the right to appeal a decision against you to a higher court. Below we cover some of the most frequently asked questions about appeals in Queensland but you should always seek a lawyer’s guidance in order to have the best chance at a successful appeal.

When can I make an appeal?

In Queensland, you are generally only able to make an appeal after a sentence has been handed down by the Court. In criminal cases, you can only appeal a guilty verdict and/or a sentence. In both criminal and civil matters you may need to seek leave (permission) to appeal, depending on the original court in which the case was heard.

It can be difficult for a layperson to accurately assess his or her chances of success on appeal. Advice from a lawyer about the grounds on which you should base your appeal and its overall strength should be a priority for anyone disappointed with the initial decision against them.

Steps of the appeal process

Though each case is unique, there is a general order to an appeals process.

  1. Appeal Book: Once a judgement you regard as unsatisfactory is handed down, you can begin the process of building your case for appeal. You don’t need to start from scratch and in any case, will rarely be permitted to introduce new evidence during an appeal, but you can condense the materials from your original case into an ‘Appeal Book’. The Appeal Book must be purchased by parties to a trial though the fee can be waived if financial hardship can be shown.
  2. Grounds for appeal: When gathering these materials, a criminal lawyer will be able to review, organize and prioritise the information to give you a better idea of what your grounds for appeal may be.Common grounds of appeal
    • Unsafe and unsatisfactory verdict: The jury’s verdict was not supported by the presented evidence and was thus unreasonable.
    • Manifestly excessive sentence: The sentence was inordinately severe in light of the circumstances of the case.
    • Error of Law: There may have been a mistake regarding the instructions given to the jury, the inclusion or exclusion of certain pieces of evidence, or the reliance upon the wrong facts when reaching the verdict.
  1. Notice of Appeal: When you are filing an appeal, you need to put several parties on notice to appeal within the time constraints set down by the particular court jurisdiction. These time limits are quite rigid, and failure to comply with them will likely result in yielding some or all of your appeal rights. Though time limits vary, they can be as short as a month after the original decision is handed down, so it is important to act fast.The Notice of Appeal is a formal legal document that provides important pieces of information, including the names of all parties and litigants who will have an interest in responding to the appeal, the date of the original court decision, the initial plea entered, all other pertinent details about the original case, your grounds for appeal, and your argument defending the need for an appeal.
  1. Appeal bail: A successful application for appeal bail will mean that a person whose sentence included a term of imprisonment can remain free until the time of the appeal. However, in order to gain an opportunity for bail pending appeal, you will need to demonstrate that the case is “exceptional”. An exceptional case is one where there is evidence of “strong grounds for concluding that the appeal will be allowed” and where a substantial portion of the sentence will be served before the appeal can be decided.
  2. Arguments: Preparation is key. The best way to win on appeal is to address what happened in the lower court, detail the mistakes that were made, how they should be corrected, and why you deserve a different result based on those corrections. A lawyer will know the practice directions required for appellate courts, which set out the strict requirements for argument outlines and timelines for serving them.
  1. Appeal hearing: If a mistake has been made in your trial or your sentence was unfair in light of the circumstances, you will likely want to tell your side of the story. Preparing your arguments and presenting them to the appellate court is how your lawyer will tell your side of the story.
  2. Decision: After hearing the arguments presented by your lawyer, an appeal court may deliver their decision at that time (ex tempore) if the decision is unlikely to affect future cases, or at a later date if the decision is likely to create a precedent for the future. If you are again disappointed with the sentence you receive, you may be able to appeal again to a higher court. If this is the case, your lawyer will be able to advise you on next steps.
Alleged Murderer in Court

Oliver Bridgeman – Arrest Warrant

PRESS RELEASE

OLIVER BRIDGEMAN – ARREST WARRANT
Bosscher Lawyers Brisbane
3 March 2016

We are aware that the Australian Federal Police have confirmed a warrant has been issued for the arrest of Queensland teenager Oliver Bridgeman.

We are aware the warrant relates to foreign incursion legislation. We understand the allegation involves Mr Bridgeman’s intentions when he entered Syria 12 months ago.

Mr Bridgeman has spent his time in Syria handing out food and clothing to refugees on behalf of a charity organisation.

Despite presumably having all relevant evidence for 12 months, the AFP has chosen to only now issue a warrant – a matter of days after the filing of an appeal to have Mr Bridgeman’s passport returned, so he could come home.
The AFP has at all times asserted to us that they wished only for Mr Bridgeman to return to Australia.

Not only has the government cancelled his passport at a time when his return was imminent, they have now issued an arrest warrant as we attempted to appeal that decision.

It seems the government is doing everything possible to ensure Mr Bridgeman remains stranded in Syria.

Without government intervention, it is highly likely he would already be home. Mr Bridgeman had already indicated a willingness to cooperate with authorities.

In our opinion, this is a political stunt. This decision does absolutely nothing to assist him coming home. It does the opposite.

Contact
Alex Jones
Bosscher Lawyers
Office: (07) 3229 3166
Fax: (07 3229 3438
331 George Street
Brisbane QLD 4000
Email: [email protected]

lock out laws

What’s Next? Prohibition?

The Queensland Government last week announced a significant tightening of our “lockout laws”. It would seem our Government is intent on living up to Queensland’s “nanny-state” moniker.

The new laws will see licensed venues enforce a “lock-out” of patrons at 1am and last drinks called at either 2 or 3am, depending on whether that venue is considered a ‘safe night precinct’.

This legislation, passed quickly and seemingly without thorough and unbiased consultation, seems to have come as a response to the violence surrounding licensed venues, in particular the ‘coward punch’ acts that have saturated the media in the last 12 months.

The new laws have been enacted as a reaction to a minority of people who, whilst spending nights out, have reverted to violence. The decision by the government displays a complete disregard for the law-abiding majority, who are the ones that ultimately pay the price by having their freedoms inhibited. Of course there are many other ‘victims’ who will suffer from these draconian laws; namely businesses, employees of licensed premises, musicians etc.

These rushed laws raise the question of, what happens if someone now gets assaulted at 10pm whilst out at licensed venues? Will we see further restrictions?

Instead of consideration given to curbing alcohol-related violence by way of furthering education, increasing penalties in relation to violent acts or placing restrictions on those who are found to have previously caused; the Government has decided to call in the ‘fun police’ on the majority of peaceful party go-ers and further limit their freedoms as to how they can go out and enjoy their nights.

This knee-jerk reaction is another example of surface-level thinking and an attempt at appearing to address an issue quickly for the purposes of perhaps obtaining good will, but certainly, votes. No discussion has been had in relation to the lack of research supporting lock-out laws and its contribution (or a lack thereof) to a reduction in violence. There appears to have been no consideration given to what people are going to do between 2am when last drinks are called, and closing time. Does the Government consider patrons turning to party drugs, in order to curb their alcohol intake, a success?

This legislation will not have the effect it’s designed to have. There will still be the violent idiots among us, as there always have been. Unfortunately, there is no way to legislate against those unsociable thugs. They won’t stay home because of these laws. People will start drinking earlier and, instead of leaving the pubs and clubs to go and have a bite to eat and then take the opportunity to go home, they won’t leave the licensed premises. The thought of being deprived the opportunity of being able to return to a venue will be enough to stop people from leaving those venues.

If the Government were to be honest with the people of the state, they would accept that the majority of the violence in the ‘party precincts’ is caused at or around closing time at taxi ranks. Lockout laws will not stop the mass gatherings outside venues, as all pubs and clubs will still close at once, and it certainly won’t stop the angst caused at taxi ranks.

The argument that the laws are currently operating effectively in New South Wales is a manipulation of actual facts. More and more venues are permanently closing and the reduction of people in and around those precincts that are the focus of the ‘statistics’, are not taken into account.

Finally, any argument the Government proffers in relation to this issue is rendered void once we consider the total exemptions given to our casinos. If, in fact, the problem were as serious as we are led to believe and the Government is serious about tackling the ‘problems’, then why would the casinos be exempt? Casinos are a 24 hours a day money-making machine for the Government (not to mention the political donations provided), who are allowed to serve alcohol for 22 hours a day. Are we supposed to believe that the casinos are somehow immune from the behaviour, so worrying that it warrants tightening lockout laws, that apparently plagues the rest of the state?

The apparent lack of consideration and common sense as well as the ignoring of the negative effects to our local economy, businesses, jobs etc., coupled with the total exemptions to casino’s leaves us wondering what the Governments motivation really is? Are these laws simply a mechanism to funnel party-goers into casinos?

brisbanecourt

Bosscher Lawyers Congratulates Rachel Kramer

It’s with great pleasure that the team at Bosscher Lawyers welcomes the admission of Rachel Kramer as a Solicitor of the Supreme Court of Queensland.

“Rachel is an integral part of our team, not only is she is a smart lawyer, but has a deep-seated commitment to protecting the rights of our clients,” Legal Practice Director, Alison Campbell said.

Rachel works out of the Bosscher Lawyers Maroochydore office.

rachel kramer

alex jones lawyer

Man Accused of Impersonating a Police Officer in Court

Brisbane Criminal Lawyers at Bosscher Lawyers are defending a man who allegedly impersonated a police officer then forced a prostitute to perform sex acts

The 34-year-old man is accused of forcing the escort to perform sex acts at a Burleigh Hotel on February 18 last year. He is charged with one count each of assuming the designation or description of a police officer and rape.

Police allege the man arranged to meet the prostitute then introduced himself as an undercover police officer investigating the sex industry.

Defence barrister John Jacob applied in the Southport Magistrates Court yesterday to cross-examine the victim about “inconsistencies” in her statements.

Mr Jacob said there was an absence of any direct threat or act of violence by his client and said he wanted to ask the complainant why she felt she couldn’t scream.

Magistrate Chris Callaghan ordered the victim to be cross-examined about how the man blocked the exit, why she was scared of violence and why she couldn’t scream.

The committal hearing will be held on May 23.

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Masterchef Drug Charges

MasterChef Contestant Accused of Drug Supply & Possession

A Former MasterChef contestant has faced a Brisbane court accused of drug supply and possession.

Filippo Silvestro, 42, represented by Bosscher Lawyers‘ Alex Jones, allegedly had more than 150 ecstasy pills in his possession and about $16,500 in cash when police arrested him in the Brisbane CBD on October 28 this year.

Silvestro made the top 24 of the 2012 MasterChef Australia series before a disastrous quiche lorraine saw hum bundled out of the competition before he could make the top 10.

He appeared in the Brisbane Magistrates Court today for the first time and did not enter pleas to four charges including supplying dangerous drugs and possessing dangerous drugs as well as tainted property.

The case was adjourned to February next year for the drugs to be analysed.

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lawyer alex jones

Trio Jailed over $20 million Heroin Bust

Three men who allegedly planned to earn easy cash by helping to smuggle millions of dollars worth of heroin into Australia in decorative wooden altars are facing lengthy jail terms.

Supreme Court Justice Ann Lyons said while there was no evidence the trio had planned to take more than “fleeting possession” of the drugs, a strong message of deterrence was needed.

“I accept that you would have all played this role for reward, knowing that you were facilitating the distribution of illegal drugs,” she told the men.

Criminal Lawyers Brisbane at Bosscher Lawyers’ Alex Jones represented two of the trio.

Lam Hoang Tran, 32, and Tam Minh Dang, 50 were sentenced to ten years’ jail and Duy Hoa Pham, 35, to 12 years’ jail.

gold coast criminal lawyers

Man Who Allegedly Attacks Muslims Will Defend Charges

A French-born Australian who allegedly attacked two Muslim tourists in the spa of the Gold Coast’s Q1 hotel, telling them “we’re going to bomb you, we’re going to bomb you all” will fight the charges.

And a magistrate has criticised one of the charges as “wrong”.

Francky Guise, 37, is accused of spitting in the face of a 17-year-old Muslim male and grabbing the breast of a burka-clad female in an ugly racial attack at the Surfers Paradise supertower on Monday night.

Mr Guise is being represented by Bosscher Lawyers.

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criminal law

Teenager Avoids Jail Sentence

A Sunshine Coast teenager who allegedly stalked, bashed and robbed a former friend has avoided jail so he can continue his mental health rehabilitation.

Trae John Joseph Predo was 17 when he committed the offences against an 18-year-old friend last year.

Judge Robertson yesterday referred to Predo’s harassment of his friend through a vast number of phone calls as “bizarre”, noting some of the calls contained threats.

It was during the period of phone stalking when Predo arranged on March 12 last year to meet his friend at a park at Mooloolah about 9.30pm.

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missing mining magnate

Missing Mining Magnate

Criminal Lawyers Brisbane at Bosscher Lawyers’ client, Markis Scott Turner was charged in 2011 with conspiring to import and traffic more than $20 million worth cocaine into the country, and was due to face a Brisbane Supreme Court trial on September 29 this year.

But the former owner of company CQE Materials and Handling is now being hunted by Australian Federal Police after the alarm was raised early last month after he had failed to report to police as part of his bail conditions since August 14.

Arrested man in handcuffs with hands behind back

Police, lawyers warn of risks of the citizen’s arrest

After allegedly leaving a trail of damage that stretched three kilometres, a man was brought to an abrupt halt when Ipswich residents performed a citizen’s arrest on Monday morning.

Police said 10 cars had been damaged during the spree, with the drama ending when the man stopped outside a school and allegedly tried to steal another car.

Images of the citizen’s arrest were published online, showing the man being pinned to the ground before he was loaded into the back of a police van.

The 52-year-old man was charged with 16 offences and is due to face court on Tuesday.

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sunshine coast lawyers

Man who raped stepdaughter gives house to girl’s mum

A man who molested his stepdaughter has signed over his house to support her and her mother while he is in jail.

Brisbane Criminal Lawyers at Bosscher Lawyers’ Anna Smith told a court yesterday that her client knew he would emerge from prison with nothing and have to start again.

“This action demonstrates genuine remorse for his offending,” Ms Smith said.

The man, 57, pleaded guilty in Maroochydore District Court to nine sex offences against the nine-year-old.

The charges included six counts of indecent dealing, two counts of rape, and maintaining a sexual relationship with a child, ending in September last year.

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Grandmother Accused

Rapist ‘distressed’ by learning victim has HIV asks for lighter sentence

A rapist was left “distressed and upset” when he found out the man he had targeted had HIV.

The sexual encounter had begun as consensual but Philip Donald Jason, 48, “crossed a line”, which led him to being charged with rape.

The victim asked him to stop, but he did not stop straight away.

After raping him in the attack last June, Jason ran off with his bag, mobile phone and sunglasses.

Later, after being arrested, Jason, was told his victim was HIV positive.

His lawyer Andrew O’Brien told Brisbane District Court on Wednesday: “He was first made aware of that after he was arrested … and he was obviously distressed and upset.”

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Man Punching Woman

Acquitted of Punching Woman in the Face

In the Toowoomba District Court, it took less than 15 minutes for a jury to find a man accused of punching a woman in the face not guilty.

Bronson Charles Thomas Bartlett, 29, has pleaded not guilty to assault occasioning bodily harm of Jessica Peacock, 22, who sustained a black eye after being punched in the face during an altercation in the car park of Valleys rugby league club in Pillar St on September 1, 2013.

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Parole

Man Released on Parole After Pub Fight

Two men who admitted stomping on a felled victim’s head during a pub fight in Toowoomba have been jailed.

Toowoomba criminal lawyer, Nathan Bouchier for both defendants, said the incident was another example of an alcohol-fuelled altercation which, unfortunately, had escalated.

Magistrate Graham Lee sentenced one of the men to 12 months in jail but ordered he be released on parole immediately.

However, taking into account Hills criminal history, Mr Lee sentenced him to 15 months in jail and ordered he be released on parole from December 21 after serving about four months.

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Michael Bosscher Defends Accused Financial Planner

Michael Bosscher Defends Accused Financial Planner

A Brisbane financial planner accused of murdering a spiritual counsellor who was his client had lost focus in the weeks leading up to the alleged attack, a court has heard.

Murder accused Trung Ma faced a committal hearing in Brisbane on Wednesday charged with murdering 63-year-old Hugo Bonham on February 3, 2014, and interfering with his corpse.

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toowoomba criminal lawyers

Row Ends Up in Magistrates Court

Four people accused of being involved in a dispute at Hatton Vale during which shots were fired appeared before Toowoomba Magistrates Court yesterday.

Police claim the dispute was over jewellery.

Criminal Lawyers Brisbane at Bosscher Lawyers’ Claire Graham, for one of the accused, told the court her client instructed that he had remained at the car during the whole incident and was unaware of any weapons being in the car.

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Tim Meehan Brisbane Criminal Lawyer

Standing True to Legal Principle

The right to a fair trial is a cornerstone of the Australian judicial system and was squarely the focus of leading Australian criminal law firm, Bosscher Lawyers in representing Brett Cowan in his application to have Chief Justice Tim Carmody disqualified from hearing his appeal, citing a possible perception of bias, emanating from a meeting between Chief Justice Carmody and child protection advocate Hetty Johnston in April, during the appeal process.

Consequently, yesterday the Chief Justice withdrew from the matter.

Chief Justice Carmody had been sitting together on the case with Justice McMurdo and Justice Hugh Fraser, and their written decisions on the appeal have yet to be delivered.

Brisbane Criminal Lawyers at Bosscher Lawyers’ Tim Meehan pointed out to a number of media outlets that his team only made the apprehended bias application after the bench raised the issue.

“Quite frankly this has got nothing to do with Hetty Johnston, it has nothing to do with Bravehearts,” Mr Meehan said.

He said the decision by Justice Carmody to withdraw from the case was very unexpected.

“Justice needs to be done according to law. It’s as simple as that.

“All we want for our client is for his matters to be dealt with in the correct way, and in the way that everyone else is entitled to have their matters dealt with.”

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