Sexual Assault Lawyer Tweed Heads

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

Contact Criminal Defence Attorney Michael McMillan for assistance and legal advice on (07) 5619 6860 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.

In New South Wales, however, the very same phrase is defined as sexual intercourse without consent, whereas in Queensland, that would be Rape.

The equivalent form of charge in New South Wales to the Queensland charge is called Sexual Touching.

In Queensland Sexual Assault 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.

New South Wales, though, even allows for this charge to be defended before a Local Court where the maximum penalty that can be imposed is only 2 years imprisonment.

Notwithstanding that apparent concession, statistics from New South Wales indicate that nearly 20% of all offenders dealt with for that offence before a Local Court are sentenced to a term of imprisonment.

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.

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.

As can be seen from the judgement, the failure by the Magistrate to properly take that into account saw the appeal succeed.

The position in New South Wales, however, is a lot stricter in that the law that relates to sentencing substantially impedes avoiding a recorded conviction for most of those sentenced for this type of offending, but it is not impossible.

A great deal of work is required to mount a case at sentence that has a prospect of avoiding a conviction there.

Indecent Treatment of a Child

Insofar as it exists as a charge, only Queensland has this offence and it relates to the mistreatment of children.

In New South Wales the same criminal conduct is found in the sections of their Crimes Act that refer to the offence of Sexual Touching of Children.

In both States, these types of crimes are finalized in a District Court and upon conviction imprisonment is very difficult to avoid.

With that, and bearing in mind that our High Court in R v De Jesus [1986] HCA 61 has characterized sex cases as:

“..particularly likely to arouse prejudice, against which a direction to the jury is unlikely to guard.”

those charged with these offences are wise to consider whether their fate should be decided by a jury or judge alone.

Statistics produced from a comprehensive 2024 study in New South Wales reveal that there is a 9% increase in the probability of an acquittal with a judge alone trial when compared to a jury trial.

Add to that the common issue of juries failing to follow the law they are required to apply, there are solid reasons to seek a judge alone trial.

Either party can apply for one, but it is not granted without evidence-based reasons.  Simply suggesting a jury will be prejudiced will not suffice.

They are still considered to play a very important role where community standards (like whether or not the conduct alleged is indecent) are being relied on in the trial.  Both States provide for judge alone trials where it is in the interests of justice to order one.

Mixed pleas may be a reason for seeking one in a sexual case.

In the case of R v Johnston [2014] QDC 174 the court was concerned enough about the prejudicial effect on a jury who were to try a defendant for two counts of rape of hearing that he had already pleaded guilty to one count of maintaining an unlawful sexual relationship with the same alleged victim, that a judge alone trial was ordered.

Judge alone trials are an option I consider in almost all sexual cases in which I am involved.

The case of The Queen v MMH [2020] QDC 70 is an excellent example of a case in which I was involved where the trial judge applied all of the lawful directions properly and was not swayed at all by, at times, emotional evidence from the Crown witnesses in arriving at the correct verdict – an acquittal.

On the subject of community standards, my view is that this concept can prove to be a very useful point to explore for a defence lawyer in these matters.

What will be in dispute is whether, given all of the circumstances of the case, the conduct complained of meets current community standards of, for example, what is indecent.

An example of a case involving just such an argument in which I was involved was R v Nathaniel [2021] QDCPR 77.  As can be seen, in that case what was emphasized was that our client had no prior sexual interest in the alleged victim, he was heavily intoxicated in an unfamiliar house, the touching was not accompanied by any lewd commentary and the points of contact were not at locations of obvious sexual interest.

That argument produced an acquittal.

It is also useful to note that this was a judge alone trial, not a jury trial.

This, again, was another deliberate, and I believe successful, move we made.

Another common issue that arises in these types of sexual cases is how to deal with multiple complainants.

This occurs when there are several alleged victims all complaining that a single accused is responsible for sexual crimes against them.

When more than one alleged victim appears in a trial making those types of allegations against a single defendant, it is a lot easier for a jury to accept that the allegations they make are true – because there’s more than one alleged victim saying they occurred.

To enhance the prospects of an acquittal, every effort must be made, in my view, to only have the jury hear from one victim per trial.

In a recent case in which I was involved known as R v P [2020] QDC 197  – We made an application to separate the two alleged victims from one indictment which would leave only one of them giving evidence against our client at trial.

As can be seen, our argument, which the court accepted, was that the connection between the two alleged victims fell short of what was required at law for them to be kept together.

This is an approach that I regularly consider when dealing with these types of charges.

As far as defences are concerned, there is one final matter of interest in relation to the Sexual Touching offences in New South Wales.

Their Crimes Act allows a person charged with some of them a defence if the alleged victim is 14 years or above when the alleged crime occurred, and the age difference between them was no more than 2 years.

If that can be proven the charge is defeated.

The equivalent in Queensland only applies if there was some penetration of the alleged victim.

Frequently these charges arise from conduct that is alleged to have occurred many years, sometimes decades, ago.

These allegations about ‘historical’ criminality raise some very odd differences between the States, not the least of which is the answer to the question: what penalty regime does an offender face if convicted?

Is it that which applies to sentences dealt with at the date of conviction, or that which applied when the offending was found to have occurred?

In New South Wales the law was amended in 2022 to ensure that anyone convicted of historical offences will be sentenced under the latest sentencing principles.

In complete contrast, the position in Queensland is that the sentencing laws that existed when the offending occurred are applicable.

Punishment for Indecent Treatment type offences in both States is guided significantly by the age of the alleged victim.

In Queensland if the child is at or over 12 years of age the maximum imprisonment is 14 years.  This jumps, though, to 20 years is the child is under 12 years.

And what makes a term of actual imprisonment very difficult to avoid after a conviction is that anyone convicted must demonstrate ‘exceptional circumstances’ in order to avoid serving an actual term of incarceration.

Although this phrase has been considered in a great many cases it has not been given a precise definition. In fact, it has been said by the Court of Appeal that whether exceptional circumstances are established in a particular case is a matter where judge’s views might differ.

Having said that, it is my experience that aggregating all of the factors personal to the offender and addressing as many of the matters related to rehabilitation, education and recidivism can usually convince the court a non-custodial sentence is appropriate.

An example of this is the case of The Queen V B Puleosi [2014] in which I was involved.  The offender in that case primarily avoided incarceration after I convinced the court that rehabilitation made the risk of reoffending low.

In addition to that, the court took into account the hardships occasioned to him after he was charged.  This aggregating approach clearly carried the day for him.

In New South Wales the maximum penalties vary when the alleged victim is 10 years of age: under that, carries 16 years imprisonment; and over that, carries 10 years.

Unlike Queensland, the sentencing law in New South Wales does not impose on those convicted of Sexual Assaults on Children a need to demonstrate exceptional circumstances to justify a sentence other than custody.

But those charges concerned with a victim under the age of 10 years carry a standard non parole period of 8 years.  That’s 8 years imprisonment before any possibility of release.

Incest

This is not a common offence, but what is really odd about this charge is how significantly different both Queensland and New South Wales treat it.

In Queensland, you face life imprisonment if convicted of intercourse with a family member.

However, in New South Wales the same conduct only exposes an offender to 8 years in prison.

Carnal Knowledge

Engaging in Penile Intercourse with Child under 16 (previously known as Carnal Knowledge.)

This offence in Queensland has been described as being intended for “…the protection of girls against themselves and to act as a deterrent against men taking advantage of the youth and simplicity of young girls and inducing them to do things which their inexperience and age prompt them to do …”

Given that most sexual offending is alleged to have occurred without any eye-witnesses, the credibility of the accuser is critical to the prosecution case.   So historically what would otherwise be inadmissible hearsay (a complaint about a sexual offence) was allowed before a court to show that an alleged victim was doing and saying things consistent with her complaint.

In fact, our High Court in Papakosmas v R [1999] HCA 37  confirmed that from ancient times the common law permitted a court to receive evidence of a complaint in cases involving alleged sexual offences.  But of that complaint, the court said:

“It clearly is not admissible as evidence of the facts complained of……(it) can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box…”

Given the prejudices mentioned earlier on these pages that attach to sexual offences, and also because there will inevitably be no eye-witness that can assist an accused, my approach has been to carefully review the admissibility of complaint evidence and the weight that could be attached to it.  The review is in two parts: does the proposed testimony actually meet the definition of ‘complaint evidence’, and if it does, how strong is it?

Inconsistencies, it is traditionally said, can be used to encourage the jury to take the view that they cannot rely on the evidence of either.  Strictly speaking in Queensland a very important feature of admissibility is the complaint made by the alleged victim, must be about the commission of the alleged offence and no other conduct.

Oftentimes, this is a matter which, in my view, should be pursued at a committal hearing where both the alleged victim and the person to whom they have complained can be cross examined to determine if that what said by one to the other is identifiable as referrable to the crime alleged.

Interestingly, this approach has lost its force in New South Wales as the law there now startlingly allows for a Judge to identify such inconsistencies that then give the jury a list of reasons why the testimony between the accuser and the person to whom they complained is not consistent.  That is apparently allowed in that State despite that neither the accuser nor the person to whom they complained gives any evidence themselves of why their recollections of what occurred is different.

Having said that, though, it certainly could be said that the value of eliciting inconsistencies may well be questionable even in Queensland in the light of decisions like the one in R v Van Der Zyden [2012] QCA 89 where the Court of Appeal said:

“Evidence by the complainant of a preliminary complaint, if unsupported by the evidence of the complainee, may serve to buttress the credit of the complainant if the complainant is believed, even though it suffers from a want of corroboration.”

That the complainant can get some boost in credibility by testifying that they complained to someone who doesn’t or can’t corroborate their testimony is, frankly, impossible to understand.  It seems to me that that case serves as a warning to ensure that a proper investigation of all potential complaint witnesses should be made by a competent defence lawyer regardless of whether the Crown are intending to call them as witnesses or not.  This is a view I have held for sometime now.

Of course, none of these same hearsay exceptions apply to an accused.  But there is a broadly similar matter of which I am aware which can assist an accused, but its application has apparently only been approved in New South Wales.

In the case of R v Rymer [2005] NSWCCA 310 the Court of Criminal Appeal said that evidence of exculpatory statements made by an accused person when confronted with allegations should be put before a trial court to support the credibility of that accused person.  In that case, the appellant was approached by police and told them “I didn’t do it”.

This was a statement which was consistent with the plea of not guilty and the conduct of the trial.  This factor, in my view, would be important to keep in mind when advising an accused on how to behave if it is expected that the approach of police and charging is imminent.

Rape

In Queensland, this is usually referred to as the most serious of all sexual offending, and a quick look at the fact it carries with it life imprisonment if convicted reflects that.  In sharp contrast, those convicted of this offence in New South Wales are only liable to a maximum of 14 years imprisonment.

So, at first blush it appears that New South Wales is more lenient on this type of offending than Queensland.

But that couldn’t be further from the truth.

This offending in New South Wales falls into a category that attracts upon conviction a standard non-parole period.

This means that if convicted there is a starting point for the period the offender will serve in prison if the offending is considered of mid-range seriousness.  And that period is 7 years.  If the offending is more serious than that, it jumps as high as 15 years of actual incarceration.

Just to give some substance to how severe a sentence of 15 years really is, that would mean the head sentence would exceed 20 years.

Contrast that with the statistics in Queensland for the broad range of periods of imprisonment imposed for all sorts of rape.    As can be seen, it is extremely rare for any sentence imposed for rape to even reach 15 years, let alone the offender being required to serve such a long term.

At its heart, rape is an offence which occurs when the sexual act alleged does not consensually occur between the parties.  This is what most trials focus on.  The concept of consent is fraught with all sorts of issues: some from the point of view of the alleged offender, and some from the alleged victim’s standpoint.  A reoccurring one is the concept of ‘mistake of fact’.  This defence arises where the alleged offender, in effect, honestly thought consent had been given, but in fact, it hadn’t.

And for a long time, central to this defence is whether the alleged offender was intoxicated at the time the assessment of consent was made, and if so, how intoxicated.  The reason was that the alleged offender may have misinterpreted the existence or otherwise of consent because of the effect of intoxication.  Since 2021 in Queensland, however, an alleged offender’s intoxication was no longer a factor allowed to be considered when determining whether a mistake of fact existed.  That change applied to all charges from that date onward, and bizarrely to all charges of offending alleged to have occurred prior to that change to the law.  The position is the same in New South Wales.  Although undoubtedly making it more difficult for an accused to now raise a ‘mistake of fact’, this change in the law has, in my experience, meant that defence lawyers should have greater focus on the cues of potential consent relied upon by the accused before the impugned sexual act occurred.

Despite the frightening violent imagery conjured up by the word rape, the factual basis of such an allegation can be very different indeed.  In fact, the law defining the concept of consent allows for rape to have occurred when an alleged victim is completely unaware of what is occurring, for example, asleep.  Rape can also occur in a marriage where partners had on many occasions engaged in consensual intercourse.  It can even occur during intercourse that commenced consensually but before its conclusion consent is withdrawn by the alleged victim using somewhat subtle non-verbal communication.

The fundamental feature of this charge is that the alleged victim did not consent to the sex in which they were involved.  Commonly it relies primarily on the testimony of the accuser.

Given that, police will look elsewhere for other evidence.  One method they will employ to capture that evidence is the use of what is known as a ‘pre-text telephone call’.  This usually involves the police recording a telephone call from the accuser to the accused and during it the accuser will ask questions of the alleged offender designed to elicit an admission or confession.

In New South Wales it is not lawful to do that without the consent of the party being recorded so police will require a Listen Device Warrant in order to do that.

However, in Queensland, there is no such protection for an accused.  In that State it is even possible for recorded calls made without police involvement or even knowledge to be used against an accused person.

That was exactly what occurred in the very recent case of The King v John Wolfe (a pseudonym) [2024] QDCPR 5.

Maintaining an Unlawful Sexual Relationship with a Child

Both States criminalise ongoing sexual misconduct against a child, and in both States the maximum penalty that can be imposed upon conviction for that offence is life imprisonment.

Often in matters like this the Crown is allowed to adduce evidence against an accused of what is known as ‘discreditable acts’ in Queensland or ‘Tendency’ evidence in New South Wales. This is conduct that is not necessarily sexual, but they say demonstrates a sexual interest in the alleged victim.

In my experience, this type of evidence needs to be identified very early in the proceedings so that early plans can be made to potentially neutralize it. The admissibility of this type of evidence depends on the conduct having some or unusual features about it showing the sexual interest alleged.

On some occasions it may be that an accused can simply provide a compelling and innocent explanation about it, on other occasions the witness that refers to it might need to be cross-examined at a committal hearing about it to determine if it does indeed fit the relevant criteria.

The results of this approach can then be used in a pre-trial application in which it is sought to exclude it the ultimate trial.

Civil Claims for Damages

The ordeal for those charged with these offences doesn’t always conclude with an acquittal.  There is a growing number of laws promulgated in Queensland that allow an accuser to take a second bite at the accused.

A perfect example is found in the Human Rights Act 2019 which allows an alleged victim of sexual misconduct to bring a second claim against the accused person, but this time seeking money.

These claims can extend into the many hundreds of thousands of dollars.  And the protections that exist in the criminal courts don’t necessarily apply in these cases because the standard of proof is a lot lower for the complainant to meet.

Need help from a Sexual Offence Lawyer?

Michael McMillan is experienced with cases relating to sex offences.

Contact us today to assist with your matter or call Michael McMillan directly on (07) 5619 6860 or 0409 273 430.