Generic image of heavily intoxicated people in Kings Cross, Sydney. Drunk. Drunkeness.
Generic image of heavily intoxicated people in Kings Cross, Sydney. Drunk. Drunkeness.

Rape ‘mistake of fact’ defence leads to man found not guilty

A YOUNG Central Queensland cowboy was this week acquitted of rape after successfully arguing "mistake of fact" that the woman he had sex with was able to give consent despite knowing she was intoxicated.

The Queensland Law Reform Commission is currently reviewing the "mistake of fact" defence, which is a 110-year legal defence that allows people accused of rape to argue that they had a mistaken but honest and reasonable belief the sex was consensual.

It has been used by defendants including repeat violent offenders and men who have argued that a woman's behaviour, including flirting, could be taken as consent.

The State Government sought views from key stakeholders about the defence law in a 2018 review. The findings are to be published April 17, 2020.

This week, jurors in Rockhampton heard evidence during a rape trial where the alleged victim and the defendant had never met before the night they had sex.

They had met at one nightclub earlier in the night, both drinking alcohol, but went off with their separate groups only to run into each other again on the dancefloor of the Giddy Goat.

The court heard the woman's friend testify they had been smoking and talking outside the nightclub moments before the dancefloor run-in and that her friend was 'lucid' and talking about the day's events.

The friend said she saw the defendant 'grinding' behind her friend for about a minute and her friend participating in the dance move.

And then they were gone - for hours.

Crown prosecutor Joshua Phillips, during his closing address to the jury, said the alleged victim had rated her alcohol intoxication level as five out of 10 and then she swallowed a pill (an illicit drug) and she started blacking out - not comprehending things that took place in the alleyway.

He said the friend testified the woman did not use any of their code words they had previously established for circumstances where they needed help during a phone call she made when she became concerned of her whereabouts.

Defence barrister Phil Hardcastle said the alleged victim testified that it wasn't until she was at a coffee shop with her friend hours later that she "may have had sex with someone" and turned to her friend told her she thought she "may have been" sexually assaulted.

Mr Hardcastle questioned how would his client know the woman was blacking out, particularly after she had climbed a fence on her own, had not shown behaviours to indicate she was highly intoxicated, such as being unable to walk by herself.

He said his client claimed the woman was on top of him while they were having sex.

Mr Hardcastle said the woman testified she couldn't remember the sex.

He said his client honestly and reasonably believed at the time of sex the woman was capable of giving consent and they had consensual sex.


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