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  • Writer's pictureSam Kuhn

Mistake of Fact Criticisms Mistaken

Criticism of a controversial ‘mistake of fact’ law in Queensland is misinformed and there needs to be greater community awareness about how the law operates, says leading legal firm Creevey Russell Lawyers.

Section 24 of the Criminal Code Act 1899 (Qld) contains the defence that a person is not criminally responsible for an act such as a sex offence if the person held an honest and reasonable, but mistaken, belief there was consent involved.

The Queensland government has called for the law to be reviewed by the Queensland Law Reform Commission, with a recommendation expected in early 2020.

Creevey Russell Principal Dan Creevey said the suggestion that the mistake of fact defence allows an offender to walk free in sexual offence type matters is “simply wrong”.

“Creevey Russell Lawyers believes the criticisms of the section 24 defence are misinformed and there needs to be greater community awareness as to how the law operates,” Mr Creevey said.

“The mere fact that the defence may be raised does not dictate that a jury will accept the defence is applicable in any given matter. That is because section 24 contains both a subjective and objective component. A  defendant cannot just raise section 24 and expect to be let off – juries apply their common sense, and the subjective component of the test provides that safeguard.”

Creevey Russell Senior Associate Trent Jones said subjectively, an accused person may hold an honest and mistaken belief regarding the existence of anything, such as the fact a person is consenting to sexual intercourse.

“Objectively, however, it is a matter – most commonly reserved for juries – to determine whether or not that mistaken belief held by a defendant was reasonable having regard to all the circumstances of a case,” he said.

“Trials involving sexual offences are most often run before a jury.  The role of a jury in a criminal trial is to determine whether or not an accused person is guilty or not guilty of the alleged offence. A jury reaches their verdict by adopting the role of the sole judge of the fact, receiving guidance and direction regarding the application of the law by the presiding judge.

“A mere mistake of a defendant is simply not enough to enliven a section 24 defence. For a section 24 defence to be successful, a jury must form the view that the honest, but mistaken, belief held by the defendant, in their particular circumstances, was held on reasonable grounds.

“The section 24 defence is not a matter whereby an accused person can simply state that they honestly believed a complainant was consenting and automatically expect to be acquitted. If that were the case, there would certainly be significant issues with the justice system, but that is not the way the section 24 defence is designed to operate.

“Juries have accepted the existence of a mistake of fact defence and acquitted accused people previously, but, similarly, there have been instances where juries have rejected a mistake of fact defence and convicted a defendant.”


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