New QLD Act to Amend Criminal Code Consent and Mistake of Fact Provisions
On 7 April 2021, the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 (Qld) (‘the Act’) received assent. The Act has partially commenced.
The Bill for the Act was originally introduced to the Queensland Legislative Assembly on 13 August 2020. However the Bill subsequently lapsed on 6 October 2020 following the dissolution of Queensland Parliament. The Bill was then reintroduced on 26 November 2020 by Attorney-General and Minister for Justice Shannon Fentiman. The Bill passed with amendments on 25 March 2021.
The main purpose of the Act is to implement recommendations of the QRLC 2020 report, 'Review of consent laws and the excuse of mistake of fact’ (‘the QLRC Report’). Specifically the recommendations proposing changes to the Criminal Code Act 1899 (Qld) ('the Criminal Code') to codify existing case law principles regarding consent and mistake of fact in relation to sexual offences. According to the Attorney-General's second reading speech, there are four key legal principles that the QLRC Report identified which “would benefit from being explicitly spelt out in the Criminal Code.”
Those principles were:
- Silence alone does not amount to consent
- Consent initially given can be withdrawn
- A defendant is not required to take any particular ‘steps’ to ascertain consent, but the jury can consider anything the defendant said or did when considering whether they were mistaken about consent
- The voluntary intoxication of the defendant is irrelevant to the reasonableness of their belief about consent, though it can be relevant to the honesty of that belief
Relevance of Silence and Inaction
Case law establishes that silence does not amount to consent. This principle was established in R v Makary  2 Qd R 528 and was most recently confirmed in the case of R v Sunderland  QCA 156 ("R v Sunderland"). In R v Sunderland, Sonfronoff P at [para 44] stated:
"[I]naction cannot be considered in a vacuum. It too must be considered with all of the relevant circumstances surrounding the sexual act... So, inaction in the context of prior acts or words might mean that the complainant has previously given consent which remains operative until withdrawn... So too, inaction, when taken with the other circumstances, may be a manifestation of unwilling submission rather than consent."
The Bill's explanatory notes further stated that the QLRC Report observed that this principle was not widely understood by the general community and legal stakeholders. Therefore, the Act clarifies the meaning of consent, as defined under the Criminal Code, by adding the following subsection:
(3) A person is not to be taken to give consent to an act only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act.
Withdrawal of Consent
The Act also further amends the meaning of consent under the Criminal Code by adding the following subsection:
(4) If an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues without consent.
The requirement that consent is withdrawn by either words or conduct follows observations in the QLRC Report that:
"[a]s a matter of fairness, it is necessary that the other person is made aware that consent is withdrawn and given the opportunity to respond to that withdrawal by ceasing to engage in the relevant act."
Relevance of defendant's conduct and circumstances
The Act will introduce section 348A into the Criminal Code, which expressly outlines the legal principles regarding mistake of fact in relation to consent.
348A Mistake of fact in relation to consent
(1) This section applies for deciding whether, for section 24, a person charged with an offence under this chapter did an act under an honest and reasonable, but mistaken, belief that another person gave consent to the act.
(2) In deciding whether a belief of the person was honest and reasonable, regard may be had to anything the person said or did to ascertain whether the other person was giving consent to the act.
(3) In deciding whether a belief of the person was reasonable, regard may not be had to the voluntary intoxication of the person caused by alcohol, a drug or another substance.
Current case law provides that a jury must regard the personal circumstances of a defendant in deciding whether they acted under an honest and reasonable, but mistaken belief about consent. However, the defendant's intoxication is irrelevant in deciding whether this belief was reasonable. The QLRC Report noted that this principle is not always communicated clearly to juries.
The introduction of this new section seeks to ensure consistency in directions given to the jury.
In addition to implementing the QLRC Report recommendations, the Act amends a wide range of other legislation for various purposes. According to the second reading speech, the Act will also:
- reaffirm “the Palaszczuk government’s commitment to reducing harm from alcohol related violence by progressing additional initiatives to advance our Tackling Alcohol-Fuelled Violence Policy”,
- reaffirm Queensland’s commitments under the National Consumer Protection Framework for Online Wagering, and
- amend the Legal Profession Act 2007 (Qld) to “clarify the operation of certain provisions in relation to the Legal Practitioners’ Fidelity Guarantee Fund.”
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Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 (Qld), Bill and supporting information available from TimeBase's LawOne Service