QLD Serious Legal Questions re Criminal Law Motive and Intent

[AnthonyC]

It states here that "motive is rarely an element of an offence":

http://www.courts.qld.gov.au/__data/assets/pdf_file/0010/86059/sd-bb-56-intention.pdf

To all intents and purposes it appears my case one of the rare instances where not only is the motive an element of the alleged offence, but IS actually the offence for which I am being tried (the charge is one of Indecent Treatment and involved myself in the role of a Parent merely rubbing the small of a 15 year old child's back. This in itself is not necessarily "indecent" unless it can be proved that it was done for indecent purposes, which no doubt is what the prosecution hopes to do).

Is there any criminal law legal precedent for an offence or lack of an offence being decided on the basis of what a Jury supposes a persons motive to be? It seems I am left at the mercy of the Court system and the vagaries therein. How can the truth possibly prevail under such circumstances? Might as well flip a coin?

Aside from all that I find it rather intrusive that a Jury of 12 people is going to sit there and decide my motive for something. ie. that I had a "Criminal" motive and am therefore a Criminal and should be locked up - when in fact no injury has taken place to any person, except myself.

It is bad enough that they make unfounded accusations against my person, but to trespass on my thoughts seems to be taking things too far. Do I have ANY kind of right of rebuttal or refusal to being violated by such an invasive Court Process?

 

[Sophea]

Dear AnthonyC,

There is a process the prosecution will go through to try to establish that you have committed this offence.

1. First that you "dealt with" the child - which is defined in the Code as any act which if done without consent would constitute an assault as defined by the Code. Its capable of wide application and includes touching a child.

2. That the dealing was "indecent" - by its ordinary meaning by reference to currently accepted standards of decency and having regard to the time, place and circumstances. The case of R v Jones [2011] QCA 19 - determined on appeal that whether an act is indecent is pre-eminently a question for the jury and if there is evidence that the act had a sexual quality the motive of the alleged offender must go to the jury for decision. However in the cases of
R v Rae [2009] 2 Qd R 463 and McCallum [2013] QCA 254 it was held that the circumstances of the acts were such that motive was not such a relevant factor that needed to be brought to the attention of the jury.

3. That the dealing was unlawful - not justified or excused by law.

4. The child was under 16 years old at the time.

Unfortunately this is the justice system that we live with, and yes you at the at the mercy of a jury with biases and limited information on which to base their judgement. If you are innocent, hopefully the evidence presented will be sufficient to enable a jury to see this.

 

[AnthonyC]

Dear AnthonyC,

Unfortunately this is the justice system that we live with, and yes you at the at the mercy of a jury with biases and limited information on which to base their judgement. If you are innocent, hopefully the evidence presented will be sufficient to enable a jury to see this.

Thank you. So if it is pre-eminently a question for a Jury, then the entire case is tied up with the perceptions of that particular Jury as to the indecency or otherwise of the conduct (given the facts supplied to them) ? I assume that those 12 people are considered a cross-section of the public, and therefore representative of what the public would consider indecent or not?

If the outcome of the entire case hinges entirely on intent or motive, and there is no "evidence" of any kind other than statements by the complainant, should there even be a case to answer? It could be said that the Court does a grave injustice to the rights and liberties of the person accused by subjecting them to a process that is likely to be highly prejudicial and ruled almost entirely by "inference" or "innuendo".

 

[Sophea]

While that is true to an extent, generally there is more available to a judge and jury to decide a matter than you think. While you may assume that it is purely your testimony versus that of the complainant, an incredible amount of additional information can gleaned from the circumstances, the context, the credibility of the witnesses (how they present and their history) and other subtleties. Bear in mind also that you are innocent until proven guilty beyond reasonable doubt.

 

[AnthonyC]

While that is true to an extent, generally there is more available to a judge and jury to decide a matter than you think. While you may assume that it is purely your testimony versus that of the complainant, an incredible amount of additional information can gleaned from the circumstances, the context, the credibility of the witnesses (how they present and their history) and other subtleties. Bear in mind also that you are innocent until proven guilty beyond reasonable doubt.

Well I certainly hope so, and I hope that it would follow that if my motives are seriously under question, then the motives of the Complainant for making the statements should also given a reasonable amount of consideration, particularly if such statements are going to be used to shed light on what my motives might have been!

I just can't help thinking judging someone purely on motive has to be a very grey area of Law, particularly when it involves an act that might take place in the ordinary course of Parenting and is not manifestly indecent or criminal in itself.