Torture is a criminal offence under section 320A of the Criminal Code 1899. The offence is defined as the intentional infliction of severe pain or suffering on a person by an act or series of acts done on one or more occasions. It carries a maximum penalty of 14 years imprisonment. This article outlines the offence of torture in Queensland.
The offence of torture
A person can be found guilty of torture if they have intentionally inflicted severe physical mental, psychological or emotional pain or suffering, whether this was temporary or permanent.
The offence of torture can be aggravated if at the time of committing the offence the accused was a participant of a criminal organization or knew or ought to have known that the offence was being committed at the direction, in association with or for the benefit of a criminal organization (Penalties and Sentences Act 1992, section 161Q).
When is the charge of torture laid?
The offence of torture is a charge that is being seen more frequently, particularly in domestic violence settings where there has been no actual physical violence. A simple example is where there are a number of threats, express or implied, of physical harm over a period of time. A charge structured in this way is capable of meeting the elements because of the inclusion of the elements of “mental, psychological or emotional pain or suffering”.
Non-physical pain and suffering
In any setting, mental, psychological or emotional pain or suffering can easily vary depending on a number of factors, such as:
- The relationship between the defendant and the complainant;
- What the defendant knows of the mental state of the complainant;
- Matters known only to the defendant and the complainant (such as an uncommon fear held by the complainant);
- The personal history of the complainant that is known to the defendant; and so on.
The meaning of “mental, psychological or emotional” is put to a jury to consider the ordinary meaning of the words. As a result, allegations of torture can often seem convoluted, benign and entirely unclear particularly at the early stages of criminal proceedings.
When speaking of allegations of torture that do not include physical violence, matters tend to be quite complex and will generally rely almost solely on the statement of the complainant, particularly if there are no witnesses to the allegations (as is common in a domestic setting).
Case law on torture
There are no Queensland Court of Appeal decisions that deal with a torture offence solely on the basis of mental, psychological or emotional pain or suffering. There are a number of reasons for this, including the fact that defendants suspected of this kind of offending can be charged with an offence of “making threats” or “threatening violence” rather than with torture.
However, with the recent focus on domestic violence and the growing understanding of the issue within the police and prosecutions, the legal industry has seen a number of charges of torture that are yet to be finalised. The community now has a better grasp of the nature of domestic violence and the fact that it does not always manifest as physical violence. With the recent introduction of strict rules, it has become very difficult to get counselling records that may assist defendants in assessing the allegations.
As a result, there is a real possibility that charges of torture involving no physical violence will be brought more frequently and will succeed. These trials are likely to be complex, involving considerations that go beyond the allegations.
There is no minimum sentence for the offence of torture. It carries a maximum of 14 years imprisonment. However, given there is very little precedent on the issue, it is difficult to say what range of penalties will ordinarily be applied to offences of torture involving no allegations of physical violence.
As with any criminal charge, it is important to take the following steps if you are faced with allegations of torture:
- Speak to a lawyer before agreeing to take part in a police interview. Because of the complexity of the issue, anything said in the police interview, even matters that may seem utterly benign, could amount to admissions of facts in issue and may well make it easier for the Crown to prove its case;
- Give your lawyer all records in your possession. This may assist in giving context to a relationship. Records could include phone logs, text messages, letters, emails, and so on;
- Do not speak to anyone but your lawyer about the issue. Friends and family members may well be required to give evidence including anything you might have said to them about the issue. You will not know whether what you have to say amounts to an admission until there is a clear description of the allegations;
- Do not make contact with the complainant about the allegations, even if they wish to speak to you about the matter.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.