The law changed on 23 September 2024. This article was first published in 2020, when the Queensland Law Reform Commission had just recommended keeping the mistake of fact excuse largely as it was. Parliament has since amended the law twice: in 2021 and again in 2024, when Queensland adopted an affirmative consent model. This article has been rewritten to explain the current law (as at 3 July 2026), how it evolved, and which version applies to which cases. For the new consent rules in detail, see our companion article on affirmative consent in Queensland.
The short version
- The mistake of fact excuse still exists in Queensland rape and sexual assault cases; it was never abolished.
- For alleged offences committed wholly after 23 September 2024, it is dramatically narrower: a belief in consent is not reasonable if the accused did not say or do anything to ascertain consent (Criminal Code s 348A(3)).
- The accused’s voluntary intoxication has been irrelevant to the reasonableness of the belief since 2021.
- For alleged offences from before 23 September 2024 (which still make up a large share of charges, because complaints are often made years later), the old law applies.
If you are facing an allegation where consent is in issue, which version of the law applies can decide the case. You can speak to us confidentially about your situation, day or night, without judgement.
What the mistake of fact excuse is
Under section 24 of the Criminal Code (Qld), a person who acts under an honest and reasonable, but mistaken, belief in a state of things is not criminally responsible to any greater extent than if that state of things existed. In a rape or sexual assault trial, the relevant mistaken belief is that the complainant was consenting.
Two requirements have always applied: the belief must be honest (actually held) and reasonable (judged against the circumstances). Once the excuse is raised on the evidence, the prosecution must exclude it beyond reasonable doubt; the accused does not have to prove it.
The old law: consent could be communicated subtly
Before the reforms, the leading cases were R v Makary [2018] QCA 258 and R v Sunderland [2020] QCA 156. Consent under the old s 348 meant consent “freely and voluntarily given”, and the Court of Appeal held that the giving of consent is a representation, usually by words or actions, but sometimes capable of being conveyed “in the most subtle ways, or by nuance, evaluated against a pattern of past behaviour”. The courts were always careful to add that mere submission is not consent.
Those cases were the backdrop to the Queensland Law Reform Commission’s Report No 78 (June 2020), a 295-page review of consent and mistake of fact built on an analysis of hundreds of trials. The QLRC recommended clarifying the law (confirming that silence alone is not consent and that consent can be withdrawn), but expressly declined to recommend a full affirmative consent model, and recommended that the excuse itself be retained.
The 2021 reform
The Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 (in force from 7 April 2021) implemented the QLRC’s recommendations. It:
- codified that a person is not taken to consent merely because they did not say or do anything, or did not resist;
- codified that consent, once given, can be withdrawn; and
- inserted the original s 348A, providing that regard may not be had to the accused’s voluntary intoxication in deciding whether a mistaken belief was reasonable: a drunk accused is judged by sober standards.
At that stage, whether the accused took any steps to ascertain consent was something a jury could consider; it was not yet a precondition.
The 2024 reform: affirmative consent
Following the Women’s Safety and Justice Taskforce’s recommendations, the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 went where the QLRC had not. From 23 September 2024:
- Consent means free and voluntary agreement (s 348), and a new s 348AA lists circumstances in which there is no consent, starting with a person who “does not say or do anything to communicate consent”, and expressly covering intoxication to the point of incapacity, fear of harm (including economic and reputational harm), abuse of authority or trust, fraud, and stealthing (non-consensual condom removal or tampering).
- Mistake of fact is now gated: under the amended s 348A, a belief in consent is not reasonable if the accused did not, immediately before or at the time of the act, say or do anything to ascertain whether the other person consented.
- A narrow exception exists where the accused proves that a cognitive or mental health impairment was a substantial cause of them not saying or doing anything (ss 348A(4)–(6), 348B–348C); the accused bears the onus, and expert evidence is required.
The excuse survives, but the practical enquiry has been inverted. Under the old law, the defence could build a reasonable belief from the whole mosaic of the interaction. Under the new law, the threshold question is concrete: what did you say or do to find out whether the other person was consenting?
Which version of the law applies to your case
This is the point most often missed in public discussion. The 2024 Act’s transitional rule (Criminal Code s 761) turns on the date of the alleged offence, not the date of charge:
| Alleged offence date | Law that applies at trial |
|---|---|
| Wholly after 23 September 2024 | Affirmative consent model (ss 348, 348AA, amended s 348A) |
| Wholly or partly before 23 September 2024 | The former provisions, including the broader mistake of fact excuse |
The 2021 changes used a different model (they applied to anyone charged after 7 April 2021, even for older alleged conduct), so historical matters can involve some careful analysis of exactly which rules govern them. Queensland’s official jury directions now maintain separate chapters for pre- and post-September-2024 offending.
Because complaints in sexual offence cases are frequently made years after the alleged events, both regimes will be running side by side in Queensland courts for a long time. Getting the applicable law right is one of the first things we do in every consent case: it shapes the defence strategy, the cross-examination, and the advice we give about whether to give evidence.
What this means in practice
For anyone facing an allegation:
- The date of the alleged conduct now matters enormously. An allegation from 2022 is defended under different consent law than an allegation from 2025.
- Police interviews are more dangerous than ever. Under the new law, an account that amounts to “they didn’t object” is not a defence, and saying it in an interview can effectively concede the s 348A(3) point. Get advice before answering any questions.
- Intoxication cuts one way. The complainant’s intoxication may bear on their capacity to consent; the accused’s intoxication cannot make a mistaken belief reasonable.
If you are under investigation or have been charged with rape or a sexual assault offence, read about how we defend sexual offence charges or contact us for confidential advice, available 24/7 for urgent matters.
This article is general legal information, not advice about your situation.
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