The Offence of Rape (Qld) | Armstrong Legal

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This article was written by Ali Rana - Practice Director - Brisbane

Ali Rana is a Practice Director and practises exclusively in criminal law. Ali is a seasoned advocate and regularly represents clients in the Magistrates, District and Supreme Courts of Queensland. Ali has significant experience representing clients in all types of criminal matters, particularly serious criminal offences. Ali is focused on the fundamental rights of his clients and ensuring that they...

The Offence of Rape (Qld)


Under section 349 of the Criminal Code 1899, the offence of rape carries a maximum penalty of life imprisonment. As with any criminal offence, the offence is broken down into elements and the Crown is required to prove each element beyond a reasonable doubt in order to secure a conviction. 

What is the offence of rape?

The elements of the offence of rape are as follows.

  1. The accused had carnal knowledge (sexual intercourse);
  2. With the complainant;
  3. The complainant did not consent to the sexual intercourse.

What is consent? 

Consent is the only legal defence to rape. Consent is defined in section 349 of the Criminal Code 1899 as follows.

(1) “consent” means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

(2) Consent is not freely and voluntarily given if it is obtained—

  1. by force; or
  2. by threat or intimidation; or
  3. by fear of bodily harm; or
  4. by exercise of authority; or
  5. by false and fraudulent representations about the nature or purpose of the act; or
  6. by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.

(3) A person is not to be taken to consent to an act only because they do not, before or at the time the act is done, say or do anything to communicate that they do not consent to the act.

(4) If an act is done or continues after consent is withdrawn by words or conduct, then the act is done or continues without consent.

Mistake of fact defence

Most rape trials and appeals are focused on whether consent was freely given and, if not, whether a defence of mistake of fact is applicable (ie. did the accused mistakenly believe that the complainant was consenting). Ultimately, this is a question for the jury to determine on the facts unique to each matter. 

The Court of Appeal has considered the question of consent on many occasions. Two recent decisions of R v Makary [2018] QCA 258 and R v Sunderland [2020] QCA 156 are strongly relied upon by courts in understanding how to address this issue. Ultimately, it will be an assessment of the complainant’s mind at the time having regard to what the jury finds their ‘acts’ conveyed together with the evidence they give at trial about their state of mind at the relevant time. It is only once the jury finds that consent was not given at the relevant time that it moves onto the, common, defence of mistake of fact. This defence is found in section 24 of the Criminal Code 1899. 

Case law on consent

In the 2018 Queensland Court of Appeal decision of R v Shaw, Davies and McPherson JJA said:

“Under s 347 [which then defined the crime] consent refers to a subjective state of mind on the part of the complainant at the time when penetration takes place. It is not in law necessary that the complainant should manifest her dissent, or strictly even that she should say in evidence at the trial that she did not consent to sexual intercourse…

A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it. Failing to do so may, however, depending on the circumstances, have the consequence that at the trial a jury may decide not to accept her evidence that she did not consent; or it may furnish some ground for a reasonable belief on the part of the accused that the complainant was in fact consenting to sexual intercourse, and so provide a basis for exemption from criminal responsibility under s 24 of the Criminal Code.”

Consent and the offence of rape

There is a real misconception in the community that certain types of behaviour establish consent by the complainant. These include silence by the complainant, the situation where the complainant knew the accused and where the complainant made no physical efforts by the complainant to stop the defendant. None of these circumstances in themselves establish consent.

All facts leading up to an alleged rape are relevant to allowing the jury to understand the circumstances of the case and to establish whether consent was ‘freely and voluntarily given’ by the complainant. Whilst there are a number of common features in each offence of rape charged, each set of circumstances is so vastly different that no singular feature of a case is telling. 

Once the jurors have heard all the evidence, they will be instructed by the trial judge that they can only convict the defendant if they find beyond a reasonable doubt that the complainant was not consenting to sexual intercourse at the relevant time.

The investigations into a rape allegation are crucial. There are a number of decisions that have to be made by the accused at an early stage, one of the most important being whether to give an interview to police. That is why it is important to contact a solicitor as soon as you become aware of a complaint.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

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