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A mistake of fact

Jun 5, 2019 • 15m22s

How “Mistake of Fact” makes drunkenness a legal defence for serious crimes, and the campaign to change that.

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A mistake of fact

08 • Jun 5, 2019

A mistake of fact

[Theme Music]

ELIZABETH:

From Schwartz Media, I’m Elizabeth Kulas, this is 7am.

ELIZABETH:

A law that allows drunkenness as a defence against criminal behaviour is the subject of a campaign for reform. But government isn’t listening. Writer Bri Lee on what is called the “Mistake of Fact” defence.

ELIZABETH:

A warning: this episode contains descriptions of sexual assault.

[Music ends]

ELIZABETH:

Bri Lee, tell me about this person, Basil Adam Soloman.

BRI:

So, Basil Adam Soloman was at a party with a woman he knew, at her house, on or around December 13th, 2003.

ELIZABETH:

Bri Lee is a lawyer, author and advocate for consent reform. She is also a writer for The Saturday Paper. This story takes place in Queensland.

BRI:

They had been drinking amongst friends. They were known to each other.
He had consumed a carton of beer, about a dozen rum and Cokes and around five cones of cannabis. She laid out some blankets and put a pedestal fan in the lounge room, because it was very late in the evening, and Basil was too drunk to drive home at the end of the party. And later that evening, while the complainant was asleep in her room. Basil entered the room and initiated sex with her. Her evidence was then that she awoke to being raped by Basil Soloman. When she awoke and confronted him. He apologised and then he left. She did not make a police complaint immediately. However, she did go to her doctor to get a STI test. She said to the doctor that she had been raped. So the complainant, is in this case did have quite a quick record of making a complaint of rape. And, as is unfortunately common in these cases, the defendant and complainant were known to each other, they moved in the same social and sports circles. So they were still coming into somewhat irregular contact with each other for about a year.
Christmas came around and she received a Christmas card from Basil Soloman that was full of profuse, tumbling apologies, although the card did not specify exactly what those apologies related to, just that he had great regrets about ruining their friendship, etc.

ELIZABETH:

Okay.

BRI:

And she still had not made a police complaint until she saw him once more and her evidence is that he said to her to get over it. Shortly, after that interaction she went to the police. Soloman ends up being charged. He pleads not guilty, which is why the matter goes to trial.

ELIZABETH:

Tell me about Soloman’s evidence at trial?

BRI:

Yes, so Soloman's version of events at the trial was that the complainant was an enthusiastic participant. And at one point in time she sort of mentioned how drunk she was. And that's when he stopped and started feeling guilty.

And that his subsequent apologies both in the letter or anything he said to her in their interactions afterwards were simply related to his feeling bad for having initiated sex with a consenting but drunk woman. At trial the jury find him guilty, of rape.

ELIZABETH:

So Soloman is found guilty by a jury. I presume he then appeals?

BRI:

Yes.
So Soloman appealed his conviction on a few different grounds. But the judge at the trial had not correctly directed the jury on how to use the Mistake of Fact defence.

ELIZABETH:

What is that, what is a Mistake of Fact defence?

[Music starts]

BRI:

It's relatively simple, it's just the case that if the defendant had an honest and reasonable belief that their actions were legal, that they should be acquitted. The important thing to know about that Mistake of Fact defence is that there are two branches or two prongs to it. There must be an honest belief which is a subjective question, but the belief must also be reasonable, which is an objective question. At the trial, the jury were not clearly directed on how to use the fact that Soloman himself was so extremely intoxicated. And at the appeal, Soloman's defence team were arguing that the jury should have been told that because Soloman was so intoxicated, it is much more likely that because of his drunkenness, his honest belief was that the complainant was consenting.

[Music ends]

ELIZABETH:

Okay. So essentially the defence is saying: you didn't know you were committing a crime. And you didn’t know because you were drunk, therefore there’s the possibility that you should be acquitted?

BRI:

Yes. As soon as intoxication is present it is much more likely the defendant will be acquitted due to Mistake of Fact.

ELIZABETH:

And to be clear the offender being drunk adds weight to his defence because of the Mistake of Fact statute.

BRI:

With the way it operates currently in Queensland, yes.

ELIZABETH:

Okay. Let's briefly go to the other states are there similar defences in other states regarding consent or belief in consent?

BRI:

Yes, so there are similar provisions in all states and territories about Mistake of Fact. But the critical difference is that no other state or territory apart from Western Australia allows a defendant's voluntary intoxication to basically assist them in presenting a Mistake of Fact defence. So you've got Victoria, Tasmania, New South Wales and South Australia all who have specific legislative provisions that dictate that a defendant's voluntary intoxication can't help them with Mistake of Fact.

ELIZABETH:

OK. Queensland is unique in this. What did the Mistake of Fact defence mean then in Soloman's case, what happened in his appeal?

BRI:

So, Soloman's appeal was allowed and his conviction was overturned. So essentially Soloman's own voluntary intoxication lowered the threshold for our expectations of his behaviour. Because it's a Court of Appeal decision that makes a specific rule about how judges should direct juries on Mistake of Fact, it means that subsequent District Court judges are bound to the rulings that were made by that court of appeal decision.

ELIZABETH:

So the case of Basil Soloman has become a legal precedent in Queensland?

BRI:

Yes.

[Music starts]

ELIZABETH:

I find that quite shocking really. I mean the details of this case in particular.

BRI:

Yes, most people are shocked by this … you know if someone had a carton of beer, a dozen rum and cokes, and five cones of cannabis and got behind the wheel there would not be for one moment any lowering of a threshold of criminal responsibility for whatever subsequent actions occurred.

ELIZABETH:

We’ll be right back.

[Music ends]

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ELIZABETH:

Bri, you've just described the situation in Queensland, which is that essentially drunkenness can form part of a defence against rape charges, where the Mistake of Fact defence is applied. Surely there are people fighting against this?

BRI:

Yes. I have been speaking about this specifically and very publicly, both writing about it in public, gaining public support for the issue to be referred to the Law Reform Commission. And I have also been writing pretty consistently to the Queensland Attorney-General Yvette D'Ath.

So I've been on this for 12 months. The Women's Legal Service Queensland have been on this specifically for about three years with a very focused campaign in the last 12 months alone. It's been on ABC News at least half a dozen times ...

[Music starts]

ARCHIVED RECORDING – Unidentified woman:

"I believe in justice, because I do believe."

ARCHIVED RECORDING – Unidentified woman:

"Every morning I would wake up exhausted and often crying."

ARCHIVED RECORDING – Unidentified woman:

"The messages that we send to men who commit these type of offences are absorbed over that young man’s short lifetime, and lead to offending."

BRI:

And my colleague in legal research, Professor Jonathan Crowe, who's now at Bond University, has made three separate submissions to three separate state governments in Queensland about this.

ELIZABETH:

What is it that you're wanting to happen with this law, with this issue?

BRI:

We are asking for Queensland to bring us up to parity with other states and territories who've been doing this for about a decade.

ELIZABETH:

You’ve mentioned submissions made to the Queensland government and to the Attorney General, Yvette D’Ath on this. What do some of those submissions look like?

BRI:

So about a fortnight ago, myself and Jonathan Crowe had a casual letter writing day at Brisbane's main library.

We got about a hundred people and I try not to obviously presume anything about other people's lives but it seemed quite obvious to me, either explicitly or implicitly, that a lot of the people who came to that event and wrote letters were survivors.

Some survivors have shown me the letters that they have written and these are letters that are addressed to Yvette D’Ath. And these are handwritten letters where people often describe situations where something that happened to them, because there are these sort of complicating factors that allow defence to paint pictures of grey zones, that then has a flow back effect to how these survivors are treated when they go to the police. Because the police can have this attitude, you know, what's the point in pressing charges or investigating a matter if you're just so unlikely to ever get a conviction in the end anyway?

The reality is, that this piece of legislation has a real effect on how survivors are treated and how the system interacts with them at that stage of first complaint. And these letters are heartbreaking, and very shocking and I don't know how anyone could sit at a desk with a hundred letters, most of them from survivors or people who are close to, or have known survivors and not reply to that in some way.

ELIZABETH:

So you haven’t received any substantial response from D’ath or her office?

BRI:

Absolutely not, and certainly not since all of these letters have started coming through in the past fortnight.

ELIZABETH:

Does it feel like they're not engaging with the argument that you're making, or how do you interpret that lack of meaningful response?

BRI:

I don't know. I don't know what else someone in my position can do. I have expertise in this area. I've teamed up with Jonathan Crowe who is pretty much the expert in this area. We've had a retired Supreme Court judge, Justice Atkinson, come out and say that she thinks Mistake of Fact needs to be looked at. The Women's Legal Service have been fighting for this for years. Now I've got the numbers and public and survivors writing to her office. If all of this is not enough, I don’t, I don't know what would be.

ELIZABETH:

There are reviews of consent law under way in other states, what are barristers contributing to that process?

BRI:

People involved with bar associations benefit from the status quo. So, the New South Wales Bar Association's submission to the New South Wales review of consent was not only an affirmation of the status quo, but if it was followed, it would take the New South Wales legal process a step backward. They argue that in cases of recklessness where sort-of specific intent to rape cannot be proved, that we should have a second lesser charge that is not called rape. That is extremely insulting and frustrating.

ELIZABETH:

Why do you think barristers do not support victim focused reform, in large part? Like, when you say they benefit from the status quo, what exactly does that mean?

BRI:

Defence barristers serve their clients whereas prosecutors serve the court.
It is frustrating that often barristers take a position as though they are the sort of rational voice of reason within the legal industry and within legal debate. Whereas my belief is that every single person talking about issues like this has a conflict of interest.

[Music starts]

ELIZABETH:

Bri, you've obviously thrown so much at this and bring so much energy to the cause. What is it that you hope will happen next?

BRI:

I hope that they announce that they will refer this issue to the Law Reform Commission, but ... I would also like to see around that announcement, an acknowledgement that we have entered a new era and that this Me Too movement is something that we cannot take a step back from.

ELIZABETH:

Bri, thank you so much for taking the time to talk through this.

BRI:

My pleasure. Thank you for having me.

[Music ends]

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[Music starts]

ELIZABETH:

Elsewhere in the news:

In Canberra, police have raided the home of a News Corp journalist, with a warrant to search her property, computer and mobile phone. The raid relates to a report from April 2018, detailing powers that would have allowed the Australian Signals Directorate to spy on Australian citizens. Police allege that the report was based on the unauthorised disclosure of information. News Corp called the raid a "dangerous act of intimidation towards those committed to telling uncomfortable truths”.

And as hinted at yesterday, the Reserve Bank has cut the cash rate to 1.25 per cent. The Australian dollar rallied slightly in response to the decision.

This is 7am. I’m Elizabeth Kulas, see you Thursday.

A law that allows drunkenness as a defence against criminal behaviour is the subject of a campaign for reform. But government is not listening and the legal establishment is not interested in seeing it change. Bri Lee talks about what is called “Mistake of Fact”.

Warning: this episode contains descriptions of sexual assault.

Guest: Author, advocate for consent reform and writer for The Saturday Paper Bri Lee.

Background reading:

Time to reform Queensland content laws in The Saturday Paper.
The Saturday Paper
The Monthly

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7am is hosted by Elizabeth Kulas. The show is produced by Emile Klein and Ruby Schwartz with Michelle Macklem. Our editor is Erik Jensen. Our theme music is by Ned Beckley and Josh Hogan of Equate Studio.

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08: A mistake of fact