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:
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.”