A North Queensland judge has acquitted a 15-year-old boy of raping a schoolmate after a trial in which “consent and mistake of fact as to consent” were crucial to establishing the child’s guilt or innocence.
Cairns Childrens Court Judge Tracy Fantin last month found the boy – identifiable only as CK – not guilty of five counts of rape alleged to have been perpetrated on a 14-year-old girl between 19 November 2020 and 18 February 2021.
CK pleaded not guilty to all five charges and elected to be tried by a judge sitting without a jury as permitted under Queensland’s Youth Justice Act 1992.
During a five-day trial, Judge Fantin was told the alleged offences occurred at various local locations, including while on a school camping trip and inside a school building.
Judge Fantin, in a recently published 20-page written verdict, covered a range of issues canvassed by the prosecution and lawyers for CK – including issues surrounding the law pertaining to “consent and mistake of fact as to consent”.
Details of the alleged offending and the opposing legal arguments as to CK’s guilt or innocence are contained in Judge Fantin’s 29 September 2022 verdict.
“In cases like this one, in which (CK) alleges that the complainant (child) consented but did not give evidence, the element of the (CK’s) belief can arise only by way of inference,” her Honour said.
“It is likely that the facts relied upon to show consent, being objective facts, will also be relied upon to raise an inference that (CK) held a reasonable but mistaken belief about that issue.”
Judge Fantin said that, under current Queensland law, Section 24 of the Criminal Code 1899 required consideration of whether a defendant’s belief, based on the circumstances as he perceived them to be, was held on reasonable grounds (as opposed to whether a theoretical reasonable person would have held it).
“The information available to (CK) and his circumstances are relevant,” she said. “For example, that he was a 15-year-old boy communicating about sex with, and having sexual contact with, a 14-year-old girl attending the same school.
“While any reasonable doubt must be based on the evidence and not be merely hypothetical or theoretical, and while also acknowledging there is room for disagreement on whether a reasonable doubt has been raised.
“In my view a reasonable doubt is raised on the combination of features of the evidence (in CK’s case).
“I am very conscious that the standard of proof, beyond reasonable doubt, is a high standard. I am left with some uncertainty in light of all of the evidence.
“The evidence when considered as a whole is such that it leaves me with a reasonable doubt. I am not satisfied beyond reasonable doubt that the complainant did not give consent to each act (alleged).
“I also am not satisfied that the Crown has disproved beyond reasonable doubt the defence of honest and reasonable mistake of fact.
“I am not satisfied beyond reasonable doubt of the guilt of the defendant on each charge. It follows that I must find the defendant not guilty.”
Read the decision.
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