Written by Rebecca Fogerty, this article was published in the September 2019 edition of Proctor.
Our criminal justice system has been long criticised for how it deals with sexual crimes. A maxim for activists in this area is to "believe victims". This is important in the therapeutic realm but harder to reconcile in a justice system where a central tenet is the presumption of innocence.
There are now calls for defendants in sexual assault cases to be banned from using the 'mistake of fact' defence. This is a mistake and would undermine the integrity of our system of justice.
Of note about the current discourse is the significant confusion about the defence, even amongst those who oppose its abolition. Section 24 of the Queensland Criminal Code contains the defence. It applies to all Code offences, not just sexual crimes. It arises from the simple moral argument that if someone unwittingly breaks the law because of a reasonable but mistaken belief, they shouldn't be convicted of a crime. To take an uncontroversial example, if you buy a second-hand TV on Gumtree that turns out to have been stolen, you may not truly be guilty of 'receiving stolen property'.
There are limits to how the defence can be used. The mistaken belief must be both honestly held and objectively reasonable. If the TV was well below market price and the seller insisted on cash, it will be harder to convince a jury that you honestly and reasonably thought the transaction above board.
Contrary to recent media reports, it is well established that a defendant’s drunkenness does not, in and of itself, give rise to a mistake of fact defence. If you were so drunk that you missed the clues about the stolen TV, your belief may well have been honest, but it still isn’t reasonable.
Some have described the mistake of fact defence as a “loophole” that enables “violent, predatory and repeat sexual offenders” to “evade responsibility”. Of course, this might be said to apply to the full corpus of criminal offences and defences, including insanity, emergency, and accident. It is a reality of our diverse society that some defendants will be recidivists both for sexual and (more commonly) non-sexual offending.
More to the point, the idea that a defence might be used to “evade responsibility” is an existential question that goes to the very purpose of a system of criminal justice. A tenet of our law is the accused’s right to a fair trial. Fundamental to that right is the ability to plead one's case. If a person is accused of a crime, then surely, they have a right to say why they believe they are not guilty. It is then up to the jury to scrutinize this claim and return a verdict.
Critics of s.24 have focused on a series of successful appeals where, inter alia, the Court of Appeal held that mistake of fact was not properly put to the jury during trial directions. The cases have attracted controversy because of the victims’ apparently clear lack of consent. In reality, most of these appeals were either dismissed or allowed for reasons entirely divorced from the quality of the complainants’ evidence or the merits (or lack of) associated with the s.24 defence. In many cases, the defendants did not even argue mistake of fact at trial. There is also nothing remarkable about a jury being directed about potentially peripheral defences: it is a standard procedural safeguard.
One reason for the attention on mistake of fact is changing social attitudes about consent. Some have expressed concern that s. 24 makes it easier for defendants to secure an acquittal if the victim was too intimidated to say “no’ or unable to physically resist.
If there is truth in this, s.24 is not the culprit. The absence of a verbal or physical protest does not automatically give rise to a proper basis for the defence. The jury must consider all the facts and circumstances in determining whether a) the mistake was genuine and b) reasonable in the circumstances. The objective test of reasonableness is a safeguard ensuring that the system does not excuse callous or reckless disregard for consent.
In considering whether s.24 meets its intended purpose, we need to ask: is it possible, within the messy spectrum of human experience, for a person to be honestly mistaken about consent? If it is even a remote possibility, we must permit an accused person to mount a defence and let a jury decide whether the mistake was reasonable.
Removing s.24 will lead to more unsafe convictions, as would any effort which hobbles a person’s right to defend themselves against criminal charges. In a legal system with a high burden of proof, there will always be (thankfully rarely) trials with outcomes that seem unfair, including acquittals that seem unreasonable. These naturally attract outsize media attention. My experience, however, and that of my criminal law colleagues, is that juries usually get it right.
Our adversarial system can be painful to victims of crime. This is perhaps especially true for sexual matters, where there are often no witnesses and the process of cross-examination can leave victims feeling drained and exposed. How we address these systemic issues is beyond the scope of this article, but our response cannot be to abolish a fundamental defence for one of the most serious crimes in the Code. For the mistake of fact defence is not an outdated relic from a less enlightened era, but a basic and sensible element of any fair justice system.
 R v O’Loughlin  QCA 123
 The cases include: R v Duckworth  QCA 30; R v Hopper  QCA 561; R v Cook  QCA 251; R v Soloman  QCA 244; R v CU  QCA 363; R v Cannell  QCA 94; R v SAX  QCA 397; R v Awang  QCA 152; R v Elomari  QCA 27; R v Motlop  QCA 301; R v Cutts  QCA 306; R v Lennox; R v Lennox; Ex parte Attorney-General (Qld)  QCA 311; R v Rope  QCA 194; R v Phillips  QCA 57; R v Dunrobin  QCA 175; R v Mrzljak  QCA 420; R v Kovacs  QCA 143