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 that [the complainant] was not consenting to the sexual intercourse.

The Crown alleges [read the relevant portion of the indictment].

[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 ingredients.]

The Crown must prove beyond reasonable doubt:

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

I will explain each of these three elements of the charge in turn.

1. Sexual intercourse

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 that they may be relevant].

Sexual intercourse means, in law, … [refer to and explain the relevant part of the definition of sexual intercourse, as defined in s 61H(1) Crimes Act 1900 and 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.]

[Refer to relevant arguments by the parties.]

If the Crown has failed to satisfy you beyond reasonable doubt that there was sexual intercourse, as I have explained, [the accused] must be found “not guilty” of this charge.

If you are satisfied beyond reasonable doubt that [the accused] had sexual intercourse with [the complainant], then you must consider the second element, that is, whether the Crown has proved beyond reasonable doubt that [the complainant] did not consent.

2. Consent

[The accused] does not have to prove that [the complainant] consented; it is for the Crown to prove beyond reasonable doubt that [she/he] did not. What then, is meant by consent?

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 relevant arguments by the parties].]

The Crown must prove beyond reasonable doubt that [the complainant] did not consent. If the Crown fails to do so, then [the accused] is “not guilty” of this charge.

If you are satisfied beyond reasonable doubt that [the accused] did have sexual intercourse with [the complainant], and also that [she/he] did not consent, then you must go on to consider the third element, namely, whether [the accused] knew that [she/he] was not consenting.

[In sexual assault cases it is unnecessary and unhelpful to direct the jury about elements of knowledge not relevant to the issues in the case: R v Mueller (2005) 62 NSWLR 476 at [3]–[4] and [42].]

3. Knowledge

The Crown must prove to you, beyond reasonable doubt, that [the accused] knew that [the complainant] did not consent.

You might ask how the Crown can prove that [the accused] was aware that [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 that [he/she] did indeed know … [deal with the relevant evidence].

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 state of mind of [the accused] 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 accused] was reckless as to whether [the complainant] consented to the sexual intercourse, then it is the law that [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].

Let me repeat. If the Crown has, in your opinion, established beyond reasonable doubt, that [the accused] had sexual intercourse with [the complainant], without [her/his] consent, and [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.

To establish that [the accused] was acting recklessly, the Crown must prove, beyond reasonable doubt, that either:

(a)

[the accused’s] state of mind was such that [he/she] 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 that [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’s] state of mind was such that [he/she] realised the possibility that [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

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 to be taken to know that the other person does not consent to the sexual intercourse.]

[If applicable — relevance of accused’s intoxication

You must examine what [the accused’s] state of mind was. But in doing that you have to 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 have to 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.]

[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) 199 A Crim R 527 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) 148 A Crim R 558 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. The issue is discussed in R v Petersen [2008] NSWDC 9 where the judge ruled that the accused’s self induced intoxication could not be taken into account by the jury for the alleged offences of indecent assault and sexual intercourse without consent.
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 that 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 that the accused knew that 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 ingredient that the Crown must prove beyond reasonable doubt.
6.: Section s 61R(2)(b) (repealed) Crimes Act 1900 (NSW) 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 that the accused was reckless: Gillard v The Queen (2014) 88 ALJR 606 at [28]–[29]. The Crown must prove that 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 the offence was allegedly committed on and after 1 January 2008

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

The Crown alleges [read the relevant portion of the indictment].

[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 ingredients.]

The Crown must prove beyond reasonable doubt:

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

I will explain each of these three elements of the charge in turn.

1.

Sexual intercourse

[Refer to direction at [5-1550] above.]

2.

Consent

The accused does not have to prove that [the complainant] consented; it is for the Crown to prove beyond reasonable doubt that [she/he] did not. What then, is meant by consent?

A person consents to sexual intercourse if [she/he] freely and voluntarily agrees to have sexual intercourse with another person. That consent 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 s 61HA(7) Crimes Act 1900]. Consent that is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.

[If applicable

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 [see s 61HA(4) Crimes Act 1900 and s 61HA(5) for other situations where there is no consent].]

[Further if applicable

In considering whether the Crown has proved beyond reasonable doubt that [the complainant] did not consent you may have regard to the following matters if you have found them proved on the evidence before you:

that the complainant had sexual intercourse while substantially intoxicated by alcohol or any drug, or
that the complainant had sexual intercourse because of intimidatory or coercive conduct, or other threat, even though that conduct does not involve a threat of force, or
if the complainant had sexual intercourse because of the abuse of a position of authority or trust.

It does not follow simply because you find that fact proved that you should be satisfied beyond reasonable doubt that the complainant did not consent, but it is a relevant fact that you should consider in deciding whether the Crown has proved this element of the offence as it must do so before you can convict the accused.]

If the Crown fails to prove that the complainant was not consenting, the accused is “not guilty” of this charge.

If you are satisfied beyond reasonable doubt that the accused did have sexual intercourse with [the complainant], and also that [she/he] did not consent, then you must go on to consider the third element, namely, whether the accused knew that [she/he] was not consenting.

[In sexual assault cases it is unnecessary and unhelpful to direct the jury about elements of consent not relevant to the issues in the case: R v Mueller (2005) 62 NSWLR 476 at [3]–[4] and [42].]

3.

Knowledge

The Crown must prove to you, beyond reasonable doubt that [the accused] knew that [the complainant] did not consent.

It is [the accused’s] actual knowledge of the lack of consent with which you are concerned. You might therefore ask how the Crown can prove that [the accused] knew that [the complainant] did not consent without an admission from [the accused] to that effect. The Crown asks you to infer or conclude from other facts that it has set out to prove, that [the accused] must have known and that [he/she] did indeed know that [the complainant] was not consenting [deal with the relevant evidence].

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 for this offence. If the Crown satisfies you beyond reasonable doubt that this was the state of mind of [the accused] 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 on by the accused] that [he/she] might have believed [the complainant] was consenting to intercourse with [him/her]. Whether that belief amounts to a guilty state of mind depends upon whether [the accused] honestly held it and, if so, whether the Crown has proved beyond reasonable doubt that there were no reasonable grounds for [the accused] to believe that [the complainant] consented. Therefore, the Crown must prove beyond reasonable doubt one of two facts before you can find the accused guilty, either:

(a): that [the accused] did not honestly believe that [the complainant] was consenting, or
(b): even if [he/she] did have an honest belief in consent, there were no reasonable grounds for believing that [the complainant] consented to the sexual intercourse.

It is for the Crown to prove that [the accused] had a guilty mind. It must eliminate any reasonable possibility that [the accused] did honestly believe on reasonable grounds that [the complainant] was consenting. Unless you find beyond reasonable doubt that the Crown has eliminated any such reasonable possibility, then you would have to find 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].

In determining whether the Crown has proved that [the accused] knew that [the complainant] was not consenting to intercourse with [him/her] you must take into account what steps were actually taken by [the accused] to ascertain whether [the complainant] was consenting to intercourse. [See s 61HA(3)(d) Crimes Act 1900.]

[Deal with relevant evidence.]

[If applicable — where the Crown relies upon recklessness under s 61HA(3)(b) to prove the accused knew the complainant was not consenting — see commentary in para 4 at [5-1565] above.]

I have already indicated that the Crown can prove [the accused] had a guilty state of mind in one of two ways:

either [the accused] actually knew that [the complainant] was not consenting, or
even if [the accused] believed at the time that [the complainant] consented, [the accused] had no reasonable grounds for believing that [the complainant] consented to the sexual intercourse.

The Crown can also prove [the accused’s] guilty state of mind if it proves that [he/she] was reckless as to whether [the complainant] consented to the sexual intercourse. If [the accused] was reckless, it is the law that [the accused] will be taken to know that [the complainant] did not consent to the sexual intercourse. [See s 61HA(3)(b) Crimes Act 1900.]

To establish that [the accused] was acting recklessly, the Crown must prove, beyond reasonable doubt, either:

(a)

[the accused’s] state of mind was such that [he/she] 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 that [the complainant] was not consenting would have been obvious to someone with [the accused’s] mental capacity if they had turned [his/her] mind to it, or

(b)

[the accused’s] state of mind was such that [he/she] realised the possibility that [the complainant] was not consenting but went ahead regardless of whether [he/she] was consenting or not.

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

[Deal with relevant evidence.]]

[If applicable — use of intoxication of accused

But in considering what [the accused] did in this regard you cannot take into account the fact that [he/she] was intoxicated where that intoxication is the result of the voluntary ingestion of alcohol or non-prescribed drugs.]

[5-1568] Notes

1.

The Crimes Amendment (Consent — Sexual Assault Offences) Act 2007 (the Act) commenced on 1 January 2008. The Act, based on recommendations contained in the report of the NSW Attorney General’s Department, Criminal Justice Sexual Offences Taskforce, Responding to sexual assault: the way forward, April 2006, applies in respect of offences under ss 61I, 61J and 61JA committed on or after 1 January 2008.

2.

The Act repealed s 61R (consent) and replaced it 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). This definition has been used under the common law: R v Clark (unrep, 17/4/98, NSWCCA); Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214 at [20]. 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), previously found in repealed s 61R(2)(d).

3.

Consent is negated in the following circumstances (s 61HA(4)):

(a): the person does not have the capacity to consent, for example, due to age or cognitive incapacity
(b): the person does not have the opportunity to consent because he or she is unconscious or asleep
(c): the person consents because of threats of force or terror, or
(d): the person consents because he/she is unlawfully detained.

Factor (c) was included in the Crimes Act 1900 before it was amended by the Act as a circumstance in which consent was vitiated: repealed s 61R(2)(c). Factors (a), (b) and (d) are additional factors to be considered under the new law. The common law has recognised that a complainant who is asleep may be incapable of consenting: R v Mayers (1872) 12 Cox CC 311. Factor (b) however makes the fact of unconsciousness or sleep determinative of lack of consent.

4.

A person is taken not to have consented to sexual intercourse if the person is (s 61HA(5)):

(a): under a mistaken belief as to the other person’s identity
(b): under a mistaken belief that he or she is married to the other person, or
(c): under a mistaken belief that the intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means).

If the accused knows that the complainant is labouring under a mistaken belief as set out in s 61HA(5), he or she is taken to have known that the complainant was not consenting. Section 61HA(5) simply re-states the pre-Act provisions, previously found in repealed ss 61R(2)(a), 61R(2)(a1) and 61R(2)(b).

5.

Consent may be negated in the following circumstances (s 61HA(6)):

(a): the person was substantially intoxicated by alcohol or any drug
(b): the person had sexual intercourse because of intimidatory or coercive conduct or other threat (other than a threat of force, which would always negate consent), or
(c): the person has sexual intercourse because of the abuse of a position of authority or trust.

These are new statutory provisions. Factor (b) was not previously recognised as a circumstance vitiating consent, although a separate offence under s 65A (now repealed) dealt with this situation: R v Aiken (2005) 63 NSWLR 719. However, the common law already recognised factor (a), that a person may be incapable of consenting to sexual intercourse due to substantial inebriation: R v Malone [1998] EWCA Crim 1462; R v Chant (unrep, 12/6/98, NSWCCA); R v Blayney (2003) 87 SASR 354; 140 A Crim R 249.

6.

Knowledge about lack of consent is dealt with in s 61HA(3). The accused knows that the person was not consenting if he or she:

(a): knows that the person does not consent
(b): is reckless as to whether the person consents, or
(c): has no reasonable grounds for believing that the other person consents.

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 or his lack of consent in order to prove that the accused knew that the complainant did not consent: R v XHR [2012] NSWCCA 247 at [47].

At common law, an accused could argue that he believed the complainant was consenting, even if there were no reasonable grounds for such a view: DPP v Morgan [1976] AC 182. Section 61HA(3)(c) requires the Crown to prove beyond reasonable doubt that there were “no reasonable grounds” for the accused to believe that the other person consented. It is a significant departure from both the pre-Act statutory position and the common law, which maintained a subjective fault element based on paragraphs (a) and (b): repealed s 61R(1) and R v McEwan [1979] 2 NSWLR 926; R v Newham (unrep, 26/11/93, NSWCCA). In his Second Reading Speech on the Crimes Amendment (Consent — Sexual Assault Offences) Bill 2007, NSW Attorney General, the Honourable John Hatzistergos, said:

The subjective test is outdated. It reflects archaic views about sexual activity. It fails to ensure a reasonable standard of care is taken to ascertain a person is consenting before embarking on potentially damaging behaviour. An objective test is required to ensure the jury applies its common sense regarding current community standards.

Paragraphs (a) and (b) represent the pre-Act statutory position: repealed s 61R(1). A direction for recklessness (b) appears at [5-1550] with Notes at [5-1565].

A judge must take special care in directing the jury in relation to s 61HA(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) 233 A Crim R 449 at [124]–[126].

7.

In s 61HA(5)(c), the term “medical” was replaced with “health” by the Crimes Legislation Amendment Act 2014 to ensure that the subsection applies to all health procedures and not only those carried out by medical practitioners. There was no transitional provision for the amendment so it may be taken to apply to offences alleged on or after the date of commencement on 23 October 2014.

8.

The Crimes Legislation Amendment Act 2014 also extended the statutory definition of consent to attempts to commit the offences under ss 61I, 61J and 61JA Crimes Act. Section 61P provides a person convicted of an attempt offence is liable to the penalty provided for the commission of the substantive offence. It had been held that the objective test for consent in s 61HA did not apply to offences of attempting to commit the offences identified in s 61HA(1): WO v DPP (NSW) [2009] NSWCCA 275 at [80], [83]; O’Sullivan v R (2012) 233 A Crim R 449 at [112]. The amendment may be taken to apply to attempt offences alleged to have occurred on or after the date of commencement on 23 October 2014 (see point 7 above).

9.

Schedule 3[1] Criminal Legislation Amendment Act 2007 No 57 inserted a new s 4A in the Crimes Act 1900 entitled “Recklessness” which provides: “For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge”. Despite the wide application of s 4A (“For the purposes of this Act …”) it is not to be taken to oust or alter the common law test for recklessness for sexual assault set out in Banditt v The Queen (2005) 224 CLR 262. The amendment was designed to clarify the concept of recklessness for offences which previously required the Crown to prove malice.

10.

For further commentary on recklessness and intoxication: see Notes at [5-1565].

11.

Section 61H(1) defines “sexual intercourse” to include cunnilingus. This 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 also includes sexual connection occasioned by the penetration of the genitalia except where the “penetration is carried out for proper medical purposes”. 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) 232 A Crim R 51 at [78]–[79].

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

If all three elements have been proved beyond reasonable doubt then the accused is guilty of a sexual assault and you will need to go on to consider whether or not the sexual intercourse without consent was committed in a circumstance of aggravation. The circumstance of aggravation is as follows … [read the relevant part of the indictment, for example, “At the time of … the victim was under the age of 16 years …”. Explain the elements of this allegation. Refer to the relevant arguments of the parties].

[As to the element of aggravation involving the alleged offender being in the company of another person or persons, adapt the relevant part of the direction at [5-680] and see [5-1585] Being in company, below.]

If you find this circumstance of aggravation proved beyond reasonable doubt, having already found that there was a sexual assault, then the accused is to be found “guilty” as charged. If you are not satisfied beyond reasonable doubt as to the existence of the circumstance of aggravation, but you are satisfied beyond reasonable doubt that there was a sexual assault, then you should say, when asked how you find — “Not guilty of the offence charged but guilty of sexual intercourse without consent” [see s 61Q(1) Crimes Act 1900].

Such a verdict would mean that you are satisfied beyond reasonable doubt that the accused did have intercourse with [the complainant], that [she/he] did not consent, and that the accused knew that [she/he] was not consenting; but that you were not satisfied that the circumstance of aggravation has been proved beyond reasonable doubt.

[5-1585] Circumstances of aggravation under s 61J

The following propositions were stated in R v Button (2002) 54 NSWLR 455 at [120] about the aggravating circumstance under s 61J(2)(c) of being in the company of another person or persons:

First, the statutory definition (s 61J(2)(c)) requires that the offender be “in the company of another person or persons”.

Secondly, the accused and such person, or persons, must share a common purpose (either to rob, or as here, sexually assault).

Thirdly, the cases appear to assume that each participant is physically present.

Fourthly, participation in the common purpose without being physically present (for example, as a look-out or as an accessory before the fact) is not enough.

Fifthly, 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.

The “in company” section of the indecent assault direction at [5-680] can be adapted to offences under s 61J.

As to the aggravating circumstance of “under the authority”, s 61H(2) provides “a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person”. 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”. 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.

[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.

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.

2.

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.

3.

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.

4.

A Markuleski direction may be required even where the case is not strictly one of “word against word”. However, the whole of the relevant or surrounding circumstances need to be considered in order to determine whether a Markuleski direction ought to be given: R v GAR [2003] NSWCCA 224 at [34]; Oldfield v R (2006) 163 A Crim R 242 at [24]-[25].A direction should 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]; DF v R (2012) 222 A Crim R 178 at [124]–[125]; Abdel-Hady v R [2011] NSWCCA 196 at [125]–[133].

Criminal Trial Courts Bench Book — Offences