Proctor : September 2019
34 PROCTOR | September 2019 In liberal democratic legal systems such as we have in Australia, principles of good government, justice and civil order are grounded in the ideal of the rule of law. AV Dicey identified three main tenets of the rule of law: 1. The state can only justify punishing a person if it is proven in court that the person has breached a law. 2. Everyone is equal before the law and no one is above the law. 3. The fundamental rights of citizens should arise from the ordinary law. Sir Ninian Stephen, a judge of the High Court of Australia and Australia’s twentieth Governor- General, would add that the rule of law requires that those who administer the law (such as the executive and judiciary) must be independent from the legislature; and the citizenry must have appropriate access to the courts. Lord Bingham of Cornhill, an eminent British judge and jurist, would further add that the law must be accessible, intelligible, and clear; laws must afford adequate protection to human rights; those in authority must exercise their power reasonably and without exceeding their limits; and any adjudicative procedures provided by the state should be fair. When considered together, these elements of the rule of law essentially point to a fair and accountable legal system. For this reason, the rule of law is the paradigm within which the appropriate and ethical operation of the law, and of legal processes and practice, is justified. While the rule of law is by no means a paradigm that translates perfectly to practice, in the words of Lord Bingham, it is nevertheless “the foundation of a fair and just society, [and] a guarantee of responsible government”. The principle of fairness in the rule of law is key. Tom Tyler, a Yale Law School professor of psychology and law, commented that “the public’s law-related behaviour [is] powerfully influenced by people’s subjective judgments about the fairness of the procedures through which the police and the courts exercise their authority”. Mistake of fact is an important general criminal defence for having committed a crime that sits well within the paradigm of the rule of law. While ignorance of the law is no excuse, section 24 of the Queensland Criminal Code recognises that if a person commits a crime as a result of an honest and reasonable mistake, then it is fair that they avoid conviction for that crime. Consider, for example, a situation where a person honestly and reasonably believes (incorrectly) that they are not married, and they go ahead and marry someone. It turns out that they are in fact at the time of that marriage, legally married to someone else. They made a big mistake – but it was an honest and reasonable mistake. For this reason, the law says the mistake constitutes a defence to the offence of bigamy. I would suggest that a poll of people in the street would think this was fair and just. It would be unfair to convict a person of bigamy in these circumstances. It is equally fair that some offences, for example, vehicle offences involving liquor and drug use, specifically exclude the operation of the defence for obvious public policy reasons. The test for the operation of mistake of fact contains two distinct elements that should contribute to its fair operation: the subjective test of honesty, but also the objective test of reasonableness. This constitutes a double protection of fairness. Not only must the accused honestly make the mistake, but on an objective analysis of the facts and circumstances their mistake must be considered reasonable. In this way, mistake of fact operates in a balanced and fair way, consistent with the rule of law. However, like the paradigm within which it operates, mistake of fact is not perfect in the way in which it manifests in practice. There are some contexts in which it doesn’t work well. One of these contexts is rape and sexual assault. We know this due to a strong evidence base, including the lived experience of rape survivors, which cannot be ignored. Jayne recently shared her experience with The Courier-Mail for an article published on 13 July entitled ‘Battered by Twin Traumas’. The person accused of raping Jayne was acquitted. This was despite evidence that she had repeatedly asked for him to stop, had told him that what he was doing was hurting her, and at the time she (and presumably he) could smell the blood resulting from his violent actions. Putting yourself in the shoes of the accused, do you think mistaking this situation for consent is reasonable? A reasonable person in these circumstances would understand that there was no consent. Jayne’s story is just one of many. Ms Bri Lee and Professor Jonathan Crowe have gathered together a significant body of evidence to show that mistake of fact is not operating in the context of rape and sexual assault as the rule of law would have it. Their research shows that reliance on the excuse is resulting in unjust acquittals because there are, among other things, significant problems with the analysis of whether the mistakes claimed in such cases were reasonable. How can we get the rule of law principle of fairness back into the operation of mistake of fact in the context of rape and sexual assault? One possible approach, as advocated by Ms Lee and Professor Crowe, is to narrow the defence to ensure that the objective requirement that the mistake is shown to be a reasonable one, is better met. This approach is consistent with the current law in Tasmania. Reform to the mistake of fact excuse in this way is rational and appropriate because it will ensure that mistake of fact works fairly in support of just outcomes in rape and sexual assault matters. And yet there are zealous opponents who, despite the extant evidence base, choose to ignore the potential unfairness and injustice resulting from its operation in these cases. Indeed, some of the recent commentary against reform of mistake of fact on social media has fallen well below the standards of intelligent professional discourse and debate – and that is disappointing. The rule of law provides an assurance to the citizens of Australia that they will be governed responsibly, and that the operation of the law and the legal system will be just and fair. Lawyers, as custodians of the rule of law, can look to its values for purpose and meaning in our professional lives. It is right that lawyers advocate zealously for their clients’ interests in any legal context, and perhaps especially in criminal law contexts. However, our primary ethical duty is to the court and the administration of justice. This means that when an aspect of our system is not working congruently with the principles of the rule of law, we need to work together to fix it. The rule of law creates an imperative to reform mistake of fact as an excuse for rape and sexual assault offences so that its operation is fair and just. For this reason, Ms Lee and Professor Crowe, along with the Women’s Legal Service Brisbane, rape and sexual assault survivors and workers, and many others, are to be commended for achieving a referral to the Queensland Law Reform Commission (QLRC) on this issue. The recommendations of the QLRC’s enquiry will be much anticipated. Rachael Field is a Professor of Law at Bond University and President of Women’s Legal Service QLD.