Fennell v The Queen

Fennell was the appellant in proceedings before the High Court of Australia, appealing against a decision of the Supreme Court of Queensland. The dispute concerned the appellant's conviction for the offence of unlawful sexual intercourse with a girl under the age of 16 years, contrary to s 211 of the *Criminal Code* (Qld). The central issue on appeal was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of reasonable belief as to the girl's age.

The High Court was required to determine whether the trial judge's summing up to the jury sufficiently explained the elements of the defence of reasonable belief under s 24 of the *Criminal Code* (Qld). Specifically, the court considered whether the jury had been adequately instructed that they must acquit the appellant if they found that he held a genuine and reasonable belief that the complainant was 16 years or older, even if that belief was mistaken.

Gummow and Kirby JJ, in their joint judgment, held that the trial judge's directions were inadequate. They reasoned that the defence under s 24 requires the accused to prove, on the balance of probabilities, that they held a belief that the complainant was of or above the age of consent. Crucially, this belief must be both honestly held and objectively reasonable in the circumstances. The judges found that the summing up had not made this dual requirement sufficiently clear to the jury, potentially leading them to believe that an honest belief alone, without objective reasonableness, would suffice, or conversely, that an objectively reasonable belief was not sufficient if not honestly held. The appeal was allowed, and the conviction was quashed.