Sexual intercourse without consent

[5-1550] Suggested direction — sexual intercourse without consent (s 61I) for offences committed before 1 January 2008

The following suggested direction must be adapted to the issues in the case.

The accused is charged with sexual intercourse without consent knowing the complainant was not consenting to the sexual intercourse.

The Crown case is [briefly outline the incident/s to which the charge/s relate].

To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the three elements which make up the offence:

1.: that, at the time and place alleged, the accused had sexual intercourse with the complainant,
2.: without the complainant’s consent,
3.: knowing the complainant did not consent.

You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of these elements, you must find the accused not guilty.

1. The accused had sexual intercourse with the complainant

This element concerns the nature of the act alleged in the indictment. The Crown must prove beyond reasonable doubt that, at the time and place alleged, the accused had sexual intercourse with the complainant … [here make some reference to the allegations of time and place, to the extent relevant].

Sexual intercourse means … [describe the relevant part of the definition of sexual intercourse, as defined in s 61H(1) Crimes Act 1900 and summarise the evidence relied upon by the Crown].

[If applicable

The Crown does not have to prove that full penetration occurred or that the accused ejaculated or that the sexual intercourse was for the accused’s sexual gratification.]

[Summarise the evidence and arguments of the parties.]

2. Without the complainant’s consent

This element concerns the complainant’s state of mind. The accused does not have to prove the complainant consented. The Crown must prove beyond reasonable doubt that [she/he] did not.

Consent involves a conscious and voluntary agreement on the part of the complainant to engage in sexual intercourse with the accused. It can be given verbally, or expressed by actions. Similarly, absence of consent does not have to be in words; it also may be communicated in other ways such as the offering of resistance although this is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse … [see repealed s 61R(2)(d) Crimes Act 1900]. Consent which is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.

[If applicable — circumstances where consent is vitiated — repealed s 61R(2)

A person who consents to sexual intercourse with another person under a mistaken belief —

[refer to applicable mistaken belief in repealed s 61R(2), for example: a mistaken belief about the identity of the other person (s 61R(2)(a)(i)), or that the other person is married (s 61R(2)(a)(ii)); or that the sexual intercourse is for medical or hygienic purposes (s 61R(2)(a1))]

— is taken not to consent to the sexual intercourse …]

[refer to the evidence].]

[If applicable — threats of terror — repealed s 61R(2)(c)

A person who submits to sexual intercourse with another person as a result of threats or terror is, by law, not to be regarded as consenting to the sexual intercourse

[refer to the relevant arguments by the parties].]

3. The accused knew the complainant did not consent

This element concerns the accused’s state of mind. The Crown must prove beyond reasonable doubt that the accused knew the complainant did not consent.

You might ask how the Crown can prove that the accused knew the complainant did not consent without an admission from [him/her]. The Crown asks you to infer or conclude from other facts which it has set out to prove, that the accused must have known and in fact did know … [summarise the relevant evidence and arguments of the parties].

[Give direction as to inferences [see [3-150]] or remind jury if already given.]

In a situation where the complainant does not in fact consent, the accused’s state of mind at the time of the act of intercourse might be that [he/she] actually knew that the complainant was not consenting. That is a guilty state of mind. If the Crown satisfies you beyond reasonable doubt that that was the accused’s state of mind at the time of the act of intercourse, then the third element of the charge has been made out.

On the other hand, you may decide on the basis of the evidence led in the trial [or if applicable and relied upon by the accused] that the accused’s state of mind might be that [he/she] genuinely, though wrongly, believed the complainant was consenting to intercourse. That is not a guilty state of mind. It is for the Crown to prove that the accused had a guilty mind, and so if the Crown has failed to prove that, at the time of intercourse, the accused did not genuinely believe that the complainant was consenting, then you would have to say that this third element of the offence is not made out, and return a verdict of “not guilty” of this charge … [refer to relevant arguments by the parties].

[If applicable — where recklessness is relied upon to prove the accused knew the complainant did not consent — repealed s 61R

If the Crown proves beyond reasonable doubt that the accused was reckless as to whether the complainant consented to the sexual intercourse, then the accused will be taken to know that the complainant did not consent to the sexual intercourse … [see repealed s 61R(1) Crimes Act 1900].

To establish that the accused had a reckless state of mind, the Crown must prove, beyond reasonable doubt, that either:

(a)

the accused simply failed to consider whether or not the complainant was consenting at all, and just went ahead with the act of sexual intercourse, even though the risk the complainant was not consenting would have been obvious to someone with the accused’s mental capacity if [he/she] had turned [his/her] mind to it, or

[The above direction should only be given when the evidence calls for it.]

(b)

the accused realised the possibility the complainant was not consenting but went ahead regardless of whether [she/he] was consenting or not.

[This is a wholly subjective test. This has been referred to as advertent recklessness.]]

[If applicable — accused’s knowledge of mistaken belief scenarios

The law says that a person who knows that another person consents to sexual intercourse under a mistaken belief [refer to relevant mistaken belief in ss 61R(2)(a) or 61R(2)(a1) listed above] is taken to know that the other person does not consent to the sexual intercourse.]

[If applicable — relevance of accused’s intoxication

When considering proof of the accused’s state of mind (that is, whether the Crown has proved beyond reasonable doubt element 3), you must ignore any effects of intoxication. If you think that [his/her] ability to think or understand what was going on was affected by alcohol, then you must put that to one side. You have to look at the accused and ask what would have been going on in [his/her] mind if [he/she] had not ingested alcohol and/or drugs.

But apart from that qualification, it is the accused’s mind you should consider. It’s not a question of what you would have realised, or thought, or believed. It’s not a question of what a reasonable person would have thought or believed. You look at what was going on in the mind of the accused, or to be more precise, what would have been going on in the mind of the accused if [he/she] was unaffected by alcohol and/or drugs.]

[If the accused is charged with aggravated sexual assault under s 61J refer to the additional direction for circumstances of aggravation [at [5-1570]] after dealing with the s 61I elements.]

[5-1565] Notes

1.: 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]:

… [i]t was not the reaction of some notional reasonable man but the state of mind of the appellant which the jury was obliged to consider and that this was to be undertaken with regard to the surrounding circumstances, including the past relationship of the parties.
2.: 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 her or his age: McGrath v R at [11]. The reasoning in McGrath v R would also apply to an offence against s 61I.
3.: 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.
4.: 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].
5.: 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 his or her knowledge he or she honestly but wrongly believed that the complainant was consenting: Bochkov v R at [93]. Where the jury accepts 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.
6.: 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).

[5-1566] Suggested direction — sexual intercourse without consent (s 61I) where alleged offence committed on or after 1 January 2008 and before 1 June 2022

The accused is charged with sexual intercourse without consent knowing the complainant was not consenting.

The Crown case is that [briefly outline the incident/s to which the charge relates].

To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following three elements of the offence:

1.: that, at the time and place alleged, the accused had sexual intercourse with the complainant
2.: without the complainant’s consent
3.: knowing the complainant did not consent.

You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of them, you must find the accused not guilty.

1.

The accused had sexual intercourse with the complainant

[This element element concerns the act of sexual intercourse. The Crown must prove beyond reasonable doubt that an act of sexual intercourse occurred. The meaning of sexual intercourse includes [describe the relevant act of intercourse from the definition in s 61HA, as in force before 1 June 2022]:

(a): penetration to any extent of the complainant’s genitalia (where complainant is female) or anus by any part of the accused’s body or by an object manipulated by the accused.
(b): the introduction of the accused’s penis into the complainant’s mouth.
(c): cunnilingus.
(d): the continuation of any of the above acts.

[Summarise the evidence and relevant arguments of the parties.]

[Where appropriate: penetration of a person’s genitalia or anus for genuine medical or hygienic purposes is not sexual intercourse. As that is what the accused says was the reason for the penetration in this case, the Crown must prove beyond reasonable doubt that it was not done for such a purpose.]

2.

The sexual intercourse occurred without the complainant’s consent

The second element concerns the complainant’s state of mind. The Crown must prove that the sexual intercourse occurred without the complainant’s consent.

Consent means that a person freely and voluntarily agrees to something. So, the Crown must prove the complainant did not freely and voluntarily agree to the sexual intercourse.

You are concerned with whether the complainant did not consent to the sexual intercourse when it occurred. What the complainant’s state of mind was before or after the sexual intercourse might prove a guide, but the question is whether the Crown has proved that [she/he] was not consenting at the time the sexual intercourse occurred.

[Where appropriate: The complainant said in evidence that [she/he] did not consent to sexual intercourse. If you accept that evidence, then you could be satisfied the Crown has proved this element.]

In deciding whether you accept that the complainant was not consenting, you may also take into account any of the following:

(a): consent obtained after persuasion is still consent, provided that ultimately it is given freely and voluntarily.
(b): consent, or lack of consent, may be indicated by what the complainant said or did. In other words, the complainant’s words or actions, or both, may indicate whether or not there was consent.
(c): a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to that intercourse. There is no legal requirement for a person to physically resist before a jury can find that the person did not consent.

[If applicable, add one or more of the following (s 61HE(5)–(6)):

The law provides that a person does not consent to sexual intercourse:

if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or
if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or
if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
if the person consents to the sexual intercourse because the person is unlawfully detained, or
if the person consented under a mistaken belief:

– as to the other person’s identity, or

– that the other person is married to the person, or

– that the sexual activity is for health or hygienic purposes, or

– about the nature of the activity that has been induced by fraudulent means.]

[If applicable, add one or more of the following (s 61HE(8)):

It may be established that the complainant did not consent to sexual intercourse if:

[she/he] consented while substantially intoxicated by alcohol or any drug, or
[she/he] consented because of intimidatory or coercive conduct, or other threat, even though that conduct does not involve a threat of force, or
[she/he] consented because of the abuse of a position of authority or trust.

If you are satisfied the complainant consented in that circumstance, it does not necessarily follow that you should be satisfied beyond reasonable doubt [she/he] did not consent. The essential matter the Crown must prove is that the complainant did not consent in the sense that [she/he] did not freely and voluntarily agree to the sexual intercourse.]

3.

The accused knew the complainant did not consent

The third element concerns the accused’s state of mind. The Crown is required to prove the accused knew the complainant did not consent to the sexual intercourse.

This is a question about what the accused’s state of mind actually was. It is not a question about what you or anyone else would have known, thought or believed in the circumstances. It is what [he/she] knew, thought or believed.

You must consider all of the circumstances, including any steps taken by the accused to make sure the complainant consented to the sexual intercourse.

[Add, if appropriate: The law is that any intoxication of the accused that was self-induced must be ignored. If you consider that [he/she] was intoxicated by voluntarily drinking alcohol [or taking drugs], you must ignore that and decide this element by considering what [his/her] state of mind would have been if [he/she] had not been intoxicated.]

The law says the Crown will have proved the accused knew the complainant did not consent to sexual intercourse if: [refer only to those of the following matters that arise from the evidence]

(a): the accused knew the complainant did not consent; or
(b): the accused was reckless as to whether the complainant consented because [he/she] realised there was a possibility [she/he] did not consent; or
(c): the accused was reckless as to whether the complainant consented because [he/she] did not even think about whether [she/he] consented but went ahead not caring, or considering it was irrelevant whether [she/he] consented; or
(d): the accused may have actually believed the complainant consented, but [he/she] had no reasonable grounds for that belief; or
(e): the accused knew the complainant consented under a mistaken belief about [refer to those parts of s 61HE(6) that may apply].

To repeat what I said at the beginning of these directions, you can only find the accused guilty if the Crown proves each of the three elements beyond reasonable doubt. If the Crown fails to prove any of them you must find the accused not guilty.

[If the accused is charged with aggravated sexual assault under s 61J refer to the additional direction for circumstances of aggravation at [5-1570] after dealing with the s 61I elements.]

[5-1568] Notes

1.: 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).
2.: 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].
3.: 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.
4.: 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 her/his 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.
5.: 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: Lazarus v R [2016] NSWCCA 52 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].
6.: If the accused knows the complainant is labouring under a mistaken belief as set out in s 61HE(6), he or she 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].
7.: 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].
8.: For further commentary on recklessness and intoxication: see Notes at [5-1565].
9.: 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].
10.: 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].
11.: 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].

[5-1570] Suggested direction — s 61J circumstance(s) of aggravation

The final element the Crown must prove beyond reasonable doubt is that the offence was aggravated because [specify circumstance of aggravation]. You only need to consider this element if you are satisfied the Crown has proved the first three elements of the offence beyond reasonable doubt.

In company — s 61J(2)(c)

[This direction is based upon the sexual intercourse being carried out by the accused in the presence of an alleged co-offender in his/her company. Modification will be required if the roles are different.]

It is an aggravating circumstance if the offence was committed in the company of another person or persons. The Crown alleges the accused committed the offence when [he/she] was in the company of [alleged co-offender]. The Crown case is that when the accused had sexual intercourse with the complainant, [alleged co-offender] was [specify nature of presence].

The Crown will prove the offence was committed “in company” if it proves beyond reasonable doubt:

(a)

the accused and [alleged co-offender] shared a common purpose that the accused would have sexual intercourse with the complainant;

and

(b)

[alleged co-offender] was physically present when the sexual intercourse occurred.

For [alleged co-offender] to be “physically present”, the Crown must prove [he/she] was sufficiently close [refer only to those of the following the Crown relies on]:

(a)

to intimidate or coerce the complainant in relation to the sexual intercourse;

or,

(b)

to encourage or support the accused in having sexual intercourse with the complainant.

It is not enough for the Crown to prove either the accused shared a common purpose with [alleged co-offender] that the accused would have sexual intercourse with the complainant, or that [alleged co-offender] was physically present. The Crown must prove both of these beyond reasonable doubt before you can conclude the offence was committed in company.

[If appropriate, add: It is not enough [alleged co-offender] shared a common purpose with the accused that the accused would have sexual intercourse with the complainant, but was not physically present in the way in which I have defined that concept. For example, it would not be enough if [alleged co-offender] was somewhere else acting as a look-out, or had provided encouragement to the accused at some time before the sexual intercourse occurred.]

[Summarise the evidence relied on by the Crown and the defence case.]

Under authority — s 61J(2)(e)

The Crown alleges the aggravating circumstance that the offence was committed when the complainant was under the authority of the accused. To establish this, the Crown must prove the complainant was under [his/her] care, supervision or authority [whether generally or at the time of the offence]. It is a matter for you to determine whether the evidence establishes the complainant was under the care, supervision or authority of the accused.

[Summarise the evidence relied on by the Crown and the defence case].]

Complainant has serious physical disability or cognitive impairment — 61J(2)(f), (g)

It is an aggravating circumstance if the offence was committed while the complainant had a [serious physical disability OR cognitive impairment].

The law recognises a variety of forms of “cognitive impairment”, including where a person has a [nominate the form of cognitive impairment according to the list in s 61HD and in accordance with the evidence relied on in the particular case].

OR

The law does not define what a “serious physical disability” is. That is a matter for you to decide. However, it is an ordinary English phrase, and you should give it its ordinary English meaning. It obviously focuses on disability of the body, as opposed to the mind and requires you to evaluate whether there was a disability that was a serious one.

To prove this element, the Crown relies upon the evidence of [summarise relevant evidence].

That evidence [has/has not] been disputed. [Summarise defence case as necessary.]

Conclusion

If you are satisfied the Crown has proved all four elements of the aggravated offence of sexual intercourse without consent in the indictment beyond reasonable doubt you must find the accused guilty. When asked for the verdict [for this count], your foreperson would simply announce, “guilty”.

If you are satisfied the Crown has only proved the first three elements of the basic offence of sexual intercourse without consent, but has not proved the element of aggravation, then you would acquit the accused of the aggravated offence and return a verdict of guilty for the basic offence. When asked for the verdict [for this count], your foreperson would announce, “not guilty of aggravated sexual touching but guilty of sexual touching”.

If you are not satisfied the Crown has proved any one of the three elements of the basic offence of sexual intercourse without consent, then you would acquit the accused completely. When asked for the verdict [for this count], your foreperson would simply announce, “not guilty”.

[see s 80AB Crimes Act 1900 regarding alternative verdicts].

[5-1585] Notes

1.: 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.
2.: In KSC v R [2012] NSWCCA 179 at [124]–[126], 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. The judge provided the jury with assistance as to the evidentiary matters relevant to the issue.
3.: “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].

[5-1590] Suggested R v Markuleski (2001) 52 NSWLR 82 direction — multiple counts

Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.

If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant’s evidence, you would have to consider how that conclusion affected your consideration of the remaining counts.

Notes

1.

It is suggested that the requirement to consider multiple counts separately is raised at the outset of the trial: [1-490] Suggested (oral) directions for the opening of the trial following empanelment.

2.

McHugh J said in KRM v The Queen (2001) 206 CLR 221 at [36]:

It has become the standard practice in cases where there are multiple counts … for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a “separate consideration warning”).

Where tendency or coincidence evidence is not adduced, directions to the jury against the use of propensity reasoning will not normally be required, unless there is a feature of the evidence creating a risk that the jury would misuse the evidence: R v Matthews [2004] NSWCCA 259 at [43]–[51] applying KRM v The Queen.

3.

In R v Markuleski (2001) 52 NSWLR 82 at [186], [257] and [280], the court held that:

… it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count.

4.

The suggested direction, above, is derived from R v Markuleski at [188] and [191]. Spigelman CJ added at [189]–[191] that:

On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.

Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant’s credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.

The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case.

5.

A Markuleski direction should only be given if the complainant’s credibility looms large in the trial and there is a risk that in the absence of a direction the accused would be denied the chance of an acquittal on all counts: RWC v R [2013] NSWCCA 58 at [80]; Abdel-Hady v R [2011] NSWCCA 196 at [125]–[133]. When determining whether such a direction should be given, the whole of the relevant or surrounding circumstances needs to be considered: R v GAR [2003] NSWCCA 224 at [34]; Oldfield v R [2006] NSWCCA 219 at [24]–[25]; Keen v R [2020] NSWCCA 59 at [76].

6.

While a Markuleski direction is more commonly given in a “word against word” prosecution for multiple sexual assault offences against the same complainant, its use is not confined to such cases: Keen v R [2020] NSWCCA 59 at [63]; Hajje v R [2006] NSWCCA 23 at [101]. It may also be required in cases where a complainant for some offences is also a witness to an offence/s involving another complainant: see, for example, Sita v R [2022] NSWCCA 90 at [36]–[42].

Criminal Trial Courts Bench Book — Offences