Five years ago, our client was charged with two counts of sexual penetration without consent, more commonly known as “rape”. Pleas of not guilty were entered on both charges and so began the trial process.
We briefed experienced trial counsel to appear at the trial alongside Chambers Legal Practice Director Yasmin Mah. The trial was heard in the District Court, and lasted three days before a Judge and jury, comprising of 12 members of the public.
As a part of our defence, there was never any denial that the sexual penetration itself took place.
The central issue at trial was – was there consent, and if not, was there an honest and reasonable, yet mistaken, belief that there was consent?
Sexual penetration without consent
Consent is defined as being freely and voluntarily given. Consent cannot be freely and voluntarily given is it obtained by:
- Force
- Threat
- Intimidation
- Deceit or any fraudulent means
A person is also unable to give consent if they are:
- Asleep or unconscious
- Intoxicated
- Under the age of 16
A person who sexually penetrates another person without the consent of that person has committed a serious offence and faces a maximum penalty of 14 years imprisonment. If found guilty, it is almost inevitable that the penalty imposed will be a term of imprisonment.
Mistake of Fact Defence
In some cases, a person may reasonably, but mistakenly, believe they have the consent of the other person. This is known as the mistake of fact defence and could mean that the person is not criminally responsible for the act.
The mistake of fact is legally defined as:
“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.” (Section 24)
Chambers Legal believed that this case was an instance of mistake of fact and pursued this as a line of defence.
The Trial
In Western Australia, lawyers are not allowed to question the complainant (or the accused) about their prior sexual history without the express permission of the court.
The court will only consider granting this permission if there is substantial relevance to the facts of the case. It will also take into consideration whether the value of the evidence outweighs any distress, humiliation or embarrassment the complainant may suffer.
In this case, the two parties had a prior sexual history. We believed that this was substantially relevant to the mistake of fact defence and the judge agreed. We were allowed to question the complainant on the prior sexual history between them and the accused.
The verdict: not guilty of sex offence charge
After hearing from several witnesses for the prosecution and defence, counsel for both sides made closing submissions to the jury.
The jury retired to consider their verdict in the afternoon of the third day. After one hour and sixteen minutes, we received notification that the jury had a verdict to each charge.
We were very please to learn that our client had been found not guilty of each of the charges. The verdicts showed that the jury believed that either:
- There was a mistake of fact, and that our client had a reasonably but mistake belief that consent had been given
- That consent was given
- There was reasonable doubt in the prosecution’s case
Our client was acquitted of both sexual penetration without consent charges and left the court freely with their family.
Contact a Sexual Offence Lawyer
Chambers Legal has an experienced team of sexual offence lawyers who can advise you on legal defences and prospects of success at trial.
Our team prides itself on working with integrity and transparency. We are fair and honest in our pricing, providing proper cost notice. Our legal advice is tailored to each client and always provided in writing.
If you have been charged with a sexual offence and would like legal advice, please contact Chambers Legal on (08) 9500 8915 or at [email protected].
Alternatively, you can book a free 15 minute phone consultation.