Where the defence case at trial is actual consent rather than mistake of fact, the evidential threshold for s 24 of the Criminal Code (Qld) requires evidence raising for consideration the inference that the accused believed the complainant had a particular state of mind consisting of willingness to engage in the specific act charged, and that the complainant had freely and voluntarily given consent to that specific act. Prior sexual history and conduct not referable to the specific act charged (here, fisting) will not meet that threshold. The exercise of the discretion to make a serious violent offence declaration under s 161B does not require a finding that the case falls outside the 'norm' for the offence type. [name withheld]'s dissent raises the question whether the majority's approach to the s 24 threshold impermissibly requires the evidence to establish the inference of honest and reasonable belief rather than merely raise it for the jury's consideration.
The full text is available to signed-in members, including the 1 later case that cites this judgment.