Director of Public Prosecutions v Oh Marris

The Director of Public Prosecutions appealed to the Court of Appeal of the Supreme Court of Queensland against the acquittal of the respondent, Oh Marris, on charges of rape and sexual assault. The central dispute concerned the interpretation and application of the defence of honest and reasonable mistake in relation to the element of *mens rea* for these offences.

The Court of Appeal was required to determine whether the trial judge had erred in law by directing the jury that the defence of honest and reasonable mistake, as codified in section 210 of the *Criminal Code* (Qld), could apply to the element of *mens rea* concerning the complainant's lack of consent. Specifically, the appeal questioned whether a mistake as to consent could be both honest and reasonable in the context of sexual offences.

Pearce and Brett JJ, with Marshall AJ concurring, held that the defence of honest and reasonable mistake under section 210 of the *Criminal Code* does not apply to the element of *mens rea* in relation to the complainant's consent in sexual offences. Their Honours reasoned that the statutory definition of rape and sexual assault requires the prosecution to prove that the accused knew the complainant did not consent or was reckless as to whether she consented. An honest and reasonable mistake as to consent would negate this required *mens rea*. The Court clarified that the defence of honest and reasonable mistake is a general defence that operates to negate a specific intent or knowledge element of an offence, and in the context of sexual offences, it directly addresses the accused's state of mind regarding consent.

The appeal was allowed, the acquittal was set aside, and a new trial was ordered.