Sexual Assault Lawyer Brisbane

Any allegation of sexual offending is devastating. It will give rise to issues surrounding a grant of bail and the security of your employment, right through to continued contact with your family and friends.

Sexual offences encompass a wide array of behaviours that induce feelings of discomfort, fear, or threat in a person. These can include acts such as rape, sexual assault, and child sexual abuse. Over the years, the law has strengthened very much in favour of the alleged victims, so more than ever, very careful preparation and presentation of your case is paramount.

There is a wide range of sexual offences in Queensland. These range from minor offences to sexual assaults, which carry a maximum penalty of life imprisonment. Most sexual offences are governed by the Criminal Code Act 1899 and are based on a lack of consent by the victim.

We can assist with defending sex-related charges including (but not limited to):

• Sexual Assault
• Indecent Treatment of a Child
• Incest
• Carnal Knowledge
• Rape
• Maintaining an Unlawful Sexual Relationship
• Civil Claims for Damages
• Child Pornography
• Willful Exposure & Indecent Acts
• Bestiality

If you’ve been charged with a sexual offence in Brisbane, contact criminal defence lawyer Michael McMillan for assistance and legal advice
on (07) 4426 8400 or 0409 273 430

What Do All of These Offences Mean?

Sexual Assault

There is a very clear distinction between these phrases as they are found in Queensland and New South Wales. In Queensland, Sexual Assault effectively means non-consensual indecent touching.

Sexual Assault in Queensland is the least serious of sexual offending found in the Criminal Code, despite that it carries 10 years imprisonment as a maximum penalty. In fact, on a guilty plea, it can be dealt with before a Magistrate where the maximum penalty falls to 3 years imprisonment. Even though these are serious offences, it is still possible for a conviction not to be recorded against your name on sentence.

A good example of where this occurred is a case in which I was involved which is referred to as DMS v Commissioner of Police [2020]. In that case, the appellant had excellent personal features but what I emphasized was the need she had to return to the workforce, and that would be curtailed if a conviction was recorded. In Queensland the position (view QLD statistics), as can be seen, is only slightly better. So clearly these are still charges to be treated with care.

Even though these are serious offences, it is still possible for a conviction not to be recorded against your name on sentence. As can be seen from the judgement, the failure by the Magistrate to properly take that into account saw the appeal succeed.

Indecent Treatment of a Child

The offence of Indecent Treatment of a Child is specific to Queensland and relates to the mistreatment of children. Both states typically finalise these types of cases in the District Court, and securing a non-custodial sentence is often difficult after a conviction. In the landmark case R v De Jesus [1986] HCA 61, the High Court acknowledged that sexual offences are often highly prejudicial and that it is difficult to prevent such prejudice, even with jury directions. As such, those charged with these offences should carefully consider whether their case should be decided by a jury or a judge alone.

In sexual offence cases, community standards often play a crucial role, particularly when determining whether the alleged conduct is deemed indecent. Both Queensland and New South Wales allow for judge-alone trials when it is in the interests of justice to order one. A mixed plea is one scenario where a judge-alone trial might be appropriate. For example, in R v Johnston [2014] QDC 174, the court was concerned about the prejudicial impact on a jury hearing a case where the defendant had already pleaded guilty to one count of maintaining an unlawful sexual relationship with the same alleged victim, while also facing two counts of rape. As a result, a judge-alone trial was ordered.

Judge-alone trials are something I consider in nearly every sexual offence case I handle. A notable example is The Queen v MMH [2020] QDC 70. In this case, I was involved in defending the accused where the trial judge adhered to all relevant legal directions and was not swayed by the emotional evidence presented by the Crown witnesses. The result was a successful acquittal. When it comes to community standards, this concept can be an invaluable avenue for a defence lawyer to explore. A common point of contention in these cases is whether the conduct in question meets the current community standards of what is considered indecent.

For instance, in R v Nathaniel [2021] QDCPR 77, the case focused on the fact that our client had no prior sexual interest in the alleged victim, was heavily intoxicated in an unfamiliar house, and that the touching was not accompanied by lewd comments. The points of contact were also not in areas of obvious sexual interest. This argument ultimately led to an acquittal. Importantly, this case was also a judge-alone trial, not a jury trial. Again, this was a deliberate decision that proved to be successful in the long run.

Multiple Complainants

When multiple victims testify against a defendant, the likelihood of a jury convicting increases. To improve the chances of an acquittal, it’s often beneficial to request that the alleged victims be tried separately. In R v P [2020] QDC 197, we successfully applied to separate the victims, arguing that the connection between them was insufficient to be heard together. The court agreed, and our client had only one victim’s testimony presented in court.

Defences for Sexual Touching Offences

In Queensland, the defence only applies if there is penetration involved. These charges often stem from incidents that occurred many years ago, raising questions about the applicable penalty regime. In New South Wales, anyone convicted of historical offences will be sentenced under the current laws, whereas in Queensland, the penalties apply based on the laws at the time of the alleged offence.

Penalties

In Queensland, penalties for Indecent Treatment are significantly influenced by the age of the alleged victim. If the child is under 12, the maximum penalty is 20 years’ imprisonment. For children aged 12 or older, the maximum penalty is 14 years. After conviction, demonstrating ‘exceptional circumstances’ is essential to avoid a custodial sentence. The term ‘exceptional circumstances’ is not defined precisely, and judges may have differing views on what qualifies.

However, addressing factors such as rehabilitation, education, and the risk of reoffending can help persuade the court to impose a non-custodial sentence. For example, in The Queen v B Puleosi [2014], I successfully argued that the offender’s rehabilitation reduced the risk of reoffending, which led to a non-custodial sentence despite the severity of the offence.

Incest

Although not a common offence, Incest is treated very differently in Queensland and New South Wales. In Queensland, anyone convicted of engaging in intercourse with a family member can face a life imprisonment sentence.

Carnal Knowledge

The offence of Carnal Knowledge refers to engaging in penile intercourse with a child under 16, and it is a specific charge in Queensland. Historically, this offence has been seen as a protective measure, particularly for girls, aimed at preventing exploitation by older men. As most sexual offences are alleged without eyewitnesses, the credibility of the accuser becomes crucial to the prosecution’s case.

Traditionally, complaints made by the alleged victim could be introduced as evidence of consistency with their testimony in court, even though they were considered hearsay. This was confirmed in the High Court case Papakosmas v R [1999] HCA 37, which upheld the use of complaint evidence to show the consistency of the complainant’s story. However, the court clarified that this evidence was not admissible as proof of the facts themselves but only to show consistency.

Given the prejudices surrounding sexual offence cases, I focus on carefully reviewing the admissibility and strength of complaint evidence. This review is twofold: firstly, determining if the proposed testimony meets the legal definition of complaint evidence, and secondly, assessing its strength in supporting the accuser’s version of events.

In Queensland, for complaint evidence to be admissible, the complainant’s statement must directly relate to the alleged offence, not any other conduct. In my experience, this is often an issue that should be challenged at the committal hearing, where both the accuser and the person they complained to can be cross-examined to verify the consistency of their statements.

Rape

In Queensland, rape is considered the most serious sexual offence, and the penalty reflects this, with life imprisonment being the maximum sentence upon conviction. Queensland’s sentencing statistics for rape show that sentences rarely exceed 15 years, and it’s uncommon for offenders to serve such long terms.
At its core, rape is an offence that arises when sexual activity occurs without consent between the parties. Most trials focus on the issue of consent, which can be complex from both the accused and the alleged victim’s perspectives. One common defence is mistake of fact, where the accused argues that they honestly believed consent had been given, even if it hadn’t.

A significant point of contention for this defence, especially in cases involving intoxication, is whether the accused misinterpreted the consent due to their level of intoxication. Since 2021, however, Queensland law no longer allows intoxication to be considered when determining a mistake of fact, even for charges arising before the law changed.

Despite the aggressive connotations often associated with rape, the factual basis of such allegations can vary significantly. The law allows for rape to occur even when the alleged victim is unaware of the act, such as when asleep. Rape can also happen within a marriage, where consensual intercourse turns non-consensual. It can even arise in situations where the intercourse begins consensually, but the alleged victim withdraws consent during the act, often through subtle non-verbal communication.

The key element in a rape charge is the lack of consent. This is typically established through the testimony of the alleged victim, but police will often look for additional evidence to support the accusation. One method used is the pre-text telephone call, where police record a conversation between the accuser and the accused. During this call, the accuser may ask questions designed to elicit an admission or confession from the accused.

In Queensland, recorded calls made without police involvement or knowledge can be used as evidence against the accused. This was demonstrated in the recent case of The King v John Wolfe (a pseudonym) [2024] QDCPR 5, where such a recording was used in the prosecution.

Maintaining an Unlawful Sexual Relationship with a Child

In both Queensland and New South Wales, maintaining an unlawful sexual relationship with a child is a serious crime, carrying a maximum penalty of life imprisonment upon conviction. In cases of this nature, the Crown may introduce ‘discreditable acts’ (in Queensland). This evidence isn’t necessarily sexual in nature but is used to suggest that the accused had a sexual interest in the victim. Identifying this type of evidence early in the process is critical, allowing the defence to plan an effective strategy to counter it.

The admissibility of this evidence hinges on whether the conduct in question demonstrates unusual features that indicate a sexual interest. In some instances, the accused may offer a compelling and innocent explanation. In other cases, the defence may need to cross-examine the witness at a committal hearing to assess if the evidence meets the legal criteria for inclusion. The results of this early investigation can then be used in pre-trial motions to seek the exclusion of this evidence in the final trial.

Civil Claims for Damages

For those facing criminal charges, the consequences don’t always end with an acquittal. In Queensland, there is an increasing number of laws that allow an alleged victim to pursue a civil claim for damages following a criminal trial. A key example is the Human Rights Act 2019, which enables an alleged victim of sexual misconduct to bring a separate civil claim for monetary compensation. These claims can result in substantial financial penalties, sometimes amounting to hundreds of thousands of dollars.

Unlike in criminal cases, the standard of proof in civil cases is lower, meaning the complainant doesn’t have to meet the same strict criteria. As a result, the protections available in criminal courts, such as the presumption of innocence and the need for proof beyond a reasonable doubt, do not apply in civil claims.

Contact Us for Legal Advice & Representation in Brisbane, QLD

Speak with experienced Brisbane Criminal Lawyer Michael McMillan about your criminal matter before it’s too late.

Contact Michael McMillan immediately on (07) 5619 6860 or 0409 273 430 . Alternatively, you can send an enquiry online.