#reversetheonus
The NSW Law Reform Commission delivered a thorough 250-page report on Sexual Consent Law Reform on the 18th of November 2020. The terms of reference initiated on the third of May 2018, were in response to community unrest at the underreporting of sexual offenses to police and further, the low conviction rates in NSW courts in comparison to other offences. There is no doubt that the Law Reform Commission Report proposed 44 recommendations from wide and substantial inter-displinary research accumulated under lead Commissioner Hon. Acting Justice Carolyn Simpson OA will deliver substantial changes that may, in part address the two issues that generated the report.
The community concerns have shifted radically in its approach to sexual consent law reform in the months since the report was tabled. The reported events in the Federal Parliament itself, and widespread revelations of school children's conduct in relationships in and out of the school yards. This commentary makes a case for extending the law concerned consent even further. There is a case to reverse the onus on the issue of concept upon the offender which can be rebutted by the offender proving consent on the balance of probabilities. The report continued to promote the traditional law on knowledge of consent “2.7. The law should continue to require prosecutors to prove beyond reasonable doubt, that the accused person knew the complainant did not consent.” The Report proposed certain tests for “knowledge” should be applied, supplied and clarified. This commentary does not suggest the recommendations were cosmetic but sharply rising current community values and the requirement that the law reflects public considered concern requires more drastic action, while also alert to protecting the basic rights of the accused. By way of example, in the last century the legislature was moved to allay society’s concerns in the trafficking of drugs. When the High Court affirmed and decided that the Crown must prove the mental element of knowing of the existence of the drug in the accused’s physical custody or control beyond a reasonable doubt (He Kaw The (1985) 152 CLR 523), ie that the alleged possessor actually knew what he or she was in possession of. Quickly and without resistance, the State passed the necessary law. The NSW Drug Misuse and Trafficking Act [1985] made deeming provisions that deemed (assumed) trafficable quantities of prohibited drugs to be for purpose of supply unless the accused proves that he he/she had them in his or her possession otherwise than for supply (S29(a) Drug Misuse and Trafficking Act 1985). It is not a separate offence but an evidentiary provision. This procedure allowed the Crown to press proof of supply more easily in serious cases by shifting the onus to the accused. There were no outrage or riots.
It is suggested that an alteration to S61HE Crimes Act NSW by an amendment providing an evidential burden on the accused, which focuses the fact finder on the offender and not on the complainant, would meet the publics and the profession’s proper anticipations. Similarly, if the defendant does not prove consent to an evidential level i.e., on the balance of probabilities, then in the context of the Crown’s over-arching obligation to prove the accused knew that the complainant was not consenting is evoked fairly and provides a more satisfactory platform for just verdicts in tune with community expectations. The playing field is more level, if not perfect to radicals.
