For alleged ss 61I, 61J and 61JA offences committed before 1 January 2008, the Crown must establish that the accused knew that the complainant was not consenting, and that, if the issue is raised in evidence, the Crown must negate any belief by the accused that the complainant was consenting; the Crown does not succeed in doing so on the basis that the accused’s belief was not based on reasonable grounds: South v R [2007] NSWCCA 117 at [30]. The joint Justices in Banditt v The Queen (2005) 224 CLR 262 said at [37]:

For an offence under s 61J, the Crown must prove the absence of consent and knowledge of that absence of consent beyond reasonable doubt “irrespective of the victim’s age”: McGrath v R [2010] NSWCCA 48 at [11]. It is a misdirection to simply say the complainant is incapable of consenting to sexual intercourse by reason of their age: McGrath v R at [11]. The reasoning in McGrath v R would also apply to an offence against s 61I.

Evidence that the accused was intoxicated where it is self-induced cannot be taken into account for offences under s 61I: R v Gulliford [2004] NSWCCA 338 at [127] and s 61J: R v DJB [2007] NSWCCA 209 at [68] on the basis that neither are offences of specific intent: see s 428D Crimes Act 1900. See also R v Petersen [2008] NSWDC 9.

In Banditt v The Queen the High Court considered the meaning of “reckless as to whether the other person consents” in the repealed s 61R(1) Crimes Act 1900. The court held that it was proper for the trial judge to have directed the jury: “If he is aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness”. The court accepted at [38] that in a particular case one or more of the expressions used in R v Morgan [1976] AC 182 (outlined at [27]) and by Professor Smith (outlined at [35]), as well as those recorded in the respondent’s submission (outlined at [16]), may properly be used in explaining what is required by the repealed s 61R(1). The trial judge properly emphasised that it was the state of mind of the appellant that the jury had to consider. A discussion of the concept of recklessness can be found in Gillard v The Queen (2014) 88 ALJR 606 at [26].

In R v Tolmie (1995) 37 NSWLR 660 at 672D Kirby P stated that recklessness is established “where the accused has not considered the question of consent and a risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it” (emphasis added). In Tuuholoaki v R [2024] NSWCCA 135 at [274] Adamson JA (Wilson and Faulkner JJ agreeing) held the italicised words above were used in R v Tolmie in the context of a consideration of the law and there was no indication they were intended to form part of directions to a jury. It was not considered in Tuuholoaki v R or in Lee v R [2023] NSWCCA 203 that the words are required in directions in every case. The suggested direction at [5-800] allows for the words to be used in appropriate cases.

The issue whether a direction on recklessness will be required is discussed in Bochkov v R [2009] NSWCCA 166 at [93]–[106]; R v Murray (1987) 11 NSWLR 12 at 15 and R v Kitchener (1993) 29 NSWLR 696 at 700. A direction may be appropriate if the circumstances of the case are such that, despite rejecting the accused’s version, a question of recklessness is still open to be considered on the Crown case: see CTM v The Queen (2008) 236 CLR 440 at [38], [84], [191] and the High Court’s approach to directions for honest and reasonable mistake of fact. A direction may be appropriate where the accused’s version is that the complainant in fact consented, and to their knowledge the accused honestly but wrongly believed that the complainant was consenting: Bochkov v R at [93]. Where the Crown has not excluded the accused had an honest though wrong belief and that the accused was not reckless as to consent, the Crown will have failed to prove the accused knew the complainant did not consent. It is incorrect to refer to such a wrong belief as a “defence” or as exculpation on the basis of an honest and reasonable mistake of fact: Bochkov v R at [102]–[105]. Knowledge (of the accused) is an element the Crown must prove beyond reasonable doubt.

Section s 61R(2)(b) (rep) Crimes Act 1900 set out grounds on which it may be established that consent to sexual intercourse for offences under ss 61I, 61J and 61JA is vitiated. For the purposes of proving “a person knows that another person consents to sexual intercourse under a mistaken belief” under the repealed s 61R(2)(b), it is not enough for the Crown to prove the accused was reckless: Gillard v The Queen (2014) 88 ALJR 606 at [28]–[29]. The Crown must prove the accused knew the other person consented to sexual intercourse on the various grounds (of vitiation) set out in s 61R(2)(b): Gillard v The Queen at [29]. In Gillard v The Queen, the High Court was dealing with ACT legislation expressed in similar terms to s 61R(2)(b).

The Crimes Amendment (Consent — Sexual Assault Offences) Act 2007 commenced on 1 January 2008 and applies to offences under ss 61I, 61J and 61JA committed on or after 1 January 2008. Under that Act, s 61R (consent) was repealed and replaced with a definition of consent, whereby a person consents to sexual intercourse “if the person freely and voluntarily agrees to the sexual intercourse”: s 61HA(2) (now repealed and replaced with s 61HE(2)). A person who does not offer physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting: s 61HA(7) (now repealed and replaced with s 61HE(9)), previously found in repealed s 61R(2)(d).

Further amendments were made to Div 10 of the Crimes Act 1900 through the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 which commenced on 1 December 2018. The consent provisions contained in the former s 61HA were renumbered under new s 61HE. There are some differences between the repealed s 61HA and the replacement s 61HE, such as the expansion of offences to which s 61HE applies (eg, sexual touching offences: s 61K), and expansion of the term “sexual intercourse” to also include sexual touching and a sexual act. However, although care must be taken to ensure the applicable provisions are referred to, depending on the date of the allegations, the substance of the provisions remains the same and can be addressed with the same directions. See Beattie v R [2020] NSWCCA 334 at [48]–[53].

The Crimes Legislation Amendment Act 2014 extended the statutory definition of consent to attempts to commit the offences under ss 61I, 61J and 61JA Crimes Act. It had been held that the objective test for consent in s 61HE did not apply to offences of attempting to commit those offences: WO v DPP (NSW) [2009] NSWCCA 275 at [80], [83]; O’Sullivan v R [2012] NSWCCA 45 at [112]. As there was no transitional provision for the amendment, it may be taken to apply to attempt offences alleged to have occurred on or after the date of commencement on 23 October 2014.

For the purpose of determining knowledge of lack of consent, the jury is to have regard to all the circumstances of the case, including any steps taken by the accused to ascertain whether the complainant consents, but excluding any self-induced intoxication on the part of the accused. The Crown does not have to show the complainant communicated their lack of consent to prove the accused knew that the complainant did not consent: R v XHR [2012] NSWCCA 247 at [47]. Section 61HE(3)(c) requires the Crown to prove beyond reasonable doubt that there were “no reasonable grounds” for the accused to believe the other person consented. It is a significant departure from the subjective test found in the common law and in repealed s 61R(1), as it imports an objective test requiring a jury to apply current community standards. Although a sentencing case, Saffin v R [2020] NSWCCA 246 at [50] discusses the three levels of “knowledge” (actual, reckless, belief on unreasonable grounds) and the extent to which there may be a difference between knowledge and recklessness.

In R v Tolmie (1995) 37 NSWLR 660 at 672D, Kirby P stated that recklessness is established “where the accused has not considered the question of consent and a risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it” (emphasis added). In Tuuholoaki v R [2024] NSWCCA 135 at [274] Adamson JA (Wilson and Faulkner JJ agreeing) held the italicised words above were used in R v Tolmie in the context of a consideration of the law and there was no indication they were intended to form part of directions to a jury. It was not considered in Tuuholoaki v R or in Lee v R [2023] NSWCCA 203 that the words are required in directions in every case. The suggested direction at [5-820] allows for the words to be used in appropriate cases.

A judge must take special care in directing the jury in relation to s 61HE(3)(c). The jury is to proceed on the assumption that if the accused honestly believed the complainant consented, the law requires it to test that belief by asking whether there were reasonable grounds for it in the circumstances of the case: Lazarus v R [2016] NSWCCA 52 at [155]. It is erroneous to instruct the jury or imply that the jury should ask what a reasonable person might have concluded about consent, rather than what the accused might have believed in all the circumstances and then test that belief by asking whether there might have been reasonable grounds for it: at [155]. The belief is that of the accused and not that of the hypothetical reasonable person in the position of the accused, which has to be reasonable: O’Sullivan v R [2012] NSWCCA 45 at [124]–[126].

If the accused knows the complainant is labouring under a mistaken belief as set out in s 61HE(6), the accused is taken to have known that the complainant was not consenting. As with consideration of the repealed s 61R(2), the Crown must prove the accused actually knew the other person consented due to a mistaken belief; mere recklessness about that fact will be insufficient: Gillard v The Queen (2014) 88 ALJR 606 at [28]–[29]; Beattie v R [2020] NSWCCA 334 at [90].

Substantial intoxication of a complainant under s 61HE(8)(a) is not determinative of consent being vitiated; it is a factor for a jury to consider in assessing whether the Crown has established lack of consent: Tabbah v R [2017] NSWCCA 55 at [142]; Beattie v R [2020] NSWCCA 334 at [71]; Smee v R [2024] NSWCCA 121 at [16]. It is not necessary to prove a causal connection between the substantial intoxication and what was said or done to indicate consent. Section 61HE(8)(a) does not use language of causation, in contrast to the word “because” used in s 61HE(8)(b) (intimidatory, threatening or coercive conduct) and s 61HE(8)(c) (abuse of position of authority or trust): Smee v R at [14]–[16]; Pandamooz v R [2023] NSWCCA 221 at [54]–[57], [71]–[74].

For further commentary on recklessness and intoxication: see Notes at [5-810].

Where a person is charged with being an accessory to sexual intercourse without consent, the relevant state of mind as to the complainant’s lack of consent is knowledge; recklessness is insufficient: Carlyle-Watson v R [2019] NSWCCA 226 at [59].

Cunnilingus need not involve penetration and refers to oral stimulation of the female genitals with the mouth or tongue: BA v R [2015] NSWCCA 189 at [9].

Sexual intercourse includes sexual connection occasioned by the penetration of the genitalia except where the “penetration is carried out for proper medical purposes”: s 61HA(a). The need for the judge to give a direction in relation to “proper medical purposes” only arises if the issue was raised by the evidence and the parties: Zhu v R [2013] NSWCCA 163 at [78]–[79]. The exception may be excluded when the relevant acts giving rise to the offence occurred during a medical examination: Decision Restricted [2020] NSWCCA 138 at [51]–[65]. There is no requirement that the sole purpose of penetration in such a context be for sexual gratification. The exception is only engaged when the relevant act is carried out for proper medical purposes: at [51]. The exception will be excluded if a proper medical purpose is accompanied by a sexual purpose either from the outset of the conduct or after commencement: [99].

In R v Button (2002) 54 NSWLR 455 at [120] the court outlined a number of propositions about the aggravating circumstance of being in company under s 61J(2)(c), including that there must be a shared common purpose to commit the offence and both accused must be physically present. The perspective of the victim (being confronted by the combined force or strength of two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be “in company”, even if the victim was unaware of the other person.

In KSC v R [2012] NSWCCA 179 the court held that it was not necessary for the judge to provide the jury with dictionary definitions of “care”, “supervision” and “authority” for the purposes of determining if a complainant was under the accused’s authority under s 61J(2)(e). They are ordinary English words which a jury would understand: at [124]–[126]. See Note 3 at [5-640] Notes — aggravated indecent assault under s 61M for a discussion of what constitutes the aggravating circumstance of being under authority.

“Serious physical disability” under s 61J(2)(f) is not defined but is capable of encompassing a vast array of different conditions: JH v R [2021] NSWCCA 324 at [38]. In JH v R, it was held this term did not require explication as the words mean what they say and are capable of being applied by a jury: [24]–[25].