The Courier-Mail

Need for balance amid calls to get tough on crime

- Rebecca Treston QC is the president of the Bar Associatio­n of Queensland REBECCA TRESTON QC

THERE are always strong emotions around sexual offending. Sexual crimes are devastatin­g to the victims, their families and friends.

When reform is suggested to laws relating to sexual offences, it is often greeted enthusiast­ically by those professing the need to get tough on crime.

However, reform should be approached sensibly, informed by an evidence-based approach and not by anecdotes or accounts of personal trauma.

So the approach to the possible removal or redrafting of Section 24 of the Criminal Code – or the “Mistake of Fact” defence – must be considered carefully.

The role of this defence in sexual-assault matters has provoked debate.

It has been the law in Queensland for almost 120 years that a person is not criminally responsibl­e for an act

done while under a mistaken belief that is honestly held and where there are reasonable grounds for that belief.

Barristers, who have significan­t experience both prosecutin­g and defending these sorts of cases, generally do not agree that the law needs to be changed.

It is not the common experience of members of the Bar Associatio­n that calculatin­g, predatory, reckless or opportunis­tic offenders are avoiding criminal responsibi­lity as a result of the current state of the law.

It is also not the case that defendants can simply claim that they thought the complainan­t was consenting because they were intoxicate­d and expect to be acquitted on that basis.

In fact, meritless attempts by defendants to rely on the defence routinely fail.

Contrary to some assertions, this law is well understood by Queensland juries.

The introducti­on of a test based on “recklessne­ss” is unnecessar­y because a person who is reckless as to consent does not hold an honest belief. Even if they did, such a belief would not be reasonable if it were recklessly made or held.

As such, the defence would not succeed. As a consequenc­e, a person could not make out the defence by establishi­ng that they were indifferen­t to consent.

It is true that the prosecutio­n of sexual offences is an extremely stressful time for those involved and an experience that stays with many for a lifetime. It is a trauma that cannot be ignored.

However, any changes to our long-establishe­d defences in the Criminal Code must be backed by clear evidence that change is required.

In relation to Section 24, there is an absence of clear evidence that the law in its present terms is contributi­ng to miscarriag­es of justice.

Given this absence of evidence, the Bar Associatio­n does not currently support amendment of the Criminal Code.

If there is to be reform in this area, it ought to be the subject of considered, evidence-based decision-making.

The Queensland Law Reform Commission is well-placed to carry out such an analysis should the Government be considerin­g genuine reform.

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