Koch v R

1. [1]

   KIRK JA: The applicant was charged and convicted of one offence of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). He was found guilty by unanimous jury verdict following a trial in the District Court presided over by Payne DCJ. The applicant now appeals against that conviction on two grounds relating to oral directions to the jury by the trial judge in response to a note from the jury. That note asked: “Could we please have clarification on the judge’s directions about knowing she was not consenting”. The two grounds are:

2. [2]

   The first ground involves a contention that her Honour erred in directing the jury on mens rea with respect to s 61HE(3)(c) of the Crimes Act as it applied to the conduct at issue (the provision has since been repealed). It was argued that part of her Honour’s directions suggested that it was sufficient if the Crown could demonstrate that even if the applicant believed that the complainant had consented to sexual intercourse there were no reasonable grounds for that belief, as opposed to putting the direction in terms of whether the applicant had no reasonable grounds for that belief. It was said that this “shifted the focus away from whether the appellant had reasonable grounds to an objective test of whether there were reasonable grounds”. The applicant relies on this Court’s decisions in Lazarus v R [2016] NSWCCA 52 and Hayne v R [2022] NSWCCA 11 in support of that argument.

3. [3]

   The second ground raised an argument that the trial judge erroneously shifted the onus of proof, doing so by suggesting in some of her directions that the applicant may bear an onus to persuade the jury that he actually believed the complainant was consenting.

4. [4]

   The applicant’s legal representative did not object at trial to any element of the directions which are now impugned, such that leave is required to proceed: Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15. The Crown opposed a grant of such leave.

5. [5]

   Leave to appeal should be refused pursuant to that rule. In what follows I set out the nature of the case below (at [6]-[17]), then address relevant legal principles (at [18]-[49]), before identifying the impugned directions (at [50]-[55]) and addressing the two grounds in turn (at [56]-[71] then [72]-[87]). The Crown relied on the proviso but it is not necessary to address that issue.

Background

1. [6]

   The complainant was 21 years old at the time of the incident. She had recently moved to Tenterfield with her two young daughters (one aged 2 years and the other a baby aged 9 months). The applicant, who was then aged 51 years old, lived near Tenterfield on a rural property a short drive from the complainant’s house. The applicant and complainant were not well known to one another but had been introduced a month or so beforehand and had seen each other in town occasionally. The complainant had also attended a family day at the bowls club where the applicant worked after the applicant had invited her to do so.

2. [7]

   The alleged offence occurred on 10 May 2022. That morning the complainant texted the applicant asking him to take her to the shops because her support workers, who would usually take her, were busy. The applicant did so. On the way home they stopped to pick up food at a service station and ate it at the complainant’s home with two other people. Over lunch, the applicant invited the complainant to visit his property so that her daughters could see a poddy calf and some other animals. The complainant agreed.

3. [8]

   The applicant drove the complainant and her two daughters to his property after lunch. After seeing the poddy calf they went into the house. The complainant switched on the television for her daughters to watch and she and the applicant sat down on the lounge.

4. [9]

   The complainant’s account of the subsequent events was, in summary, as follows. The applicant put his arm around her before pulling her face towards his and trying to kiss her. The complainant asked him to stop, saying that she had just been through a break-up. The applicant said “it doesn’t have to be like that, it can be just for fun”. He then tried to kiss her. The complainant said that she pushed the applicant away and told him to stop.

5. [10]

   After getting up to make a bottle for her baby, the complainant sat back down on the lounge. The applicant then asked the complainant if she would like to see the rest of the house. The complainant got up and her toddler followed. The applicant is said to have created a barricade with several large stuffed animals to prevent the child from following him and the complainant down the hallway. As the complainant went to pick up her daughter, the applicant pushed her down the hallway. The complainant tried again to pick her daughter up because she could see that the child was distressed. The applicant pushed the complainant again and told the child to “stay there” and “play with the teddies”.

6. [11]

   The applicant then pushed the complainant into his bedroom. She told him to stop and that she wanted to check on her daughter. The applicant instead pushed her onto the bed and pulled off her pants and underwear, which she resisted. The complainant attempted to cover herself with her shirt. She asked the applicant to stop “a couple of times”, including by saying “Nev, please stop, I don’t want to do this”. He did not respond. The applicant pinned the complainant down on the bed and pushed her thighs apart. The complainant again asked the applicant to stop. She tried to push him off but could not do so because he was much larger than her. The applicant pulled down his pants and had penile-vaginal intercourse with the complainant. He ejaculated inside her. The complainant was then able to get dressed and leave the room.

7. [12]

   The complainant told her children that they were leaving. The applicant drove them home. At the complainant’s house, the applicant tried to kiss her two or three times. She told him to stop, and that she did not want to kiss him because it would be embarrassing if anyone saw. The applicant then left.

8. [13]

   The applicant gave evidence. His account, in brief, was as follows. He said that while he was having lunch at the complainant’s house he had put his hand on her leg and she had not objected. At his house he caressed the complainant’s leg while the pair were sitting on his lounge. He testified that they were both “touching each other”, after which he put his arm around the complainant. She leaned in to kiss him. While kissing, he progressed to touching her breasts and then the outside of her vagina while she was touching his chest. The baby then dropped her bottle. The complainant got up to give it back to the baby and returned to the couch, where they resumed touching and kissing again. After a couple of minutes he asked “would you like to go to the bedroom”, she said “yes”, and they walked to his bedroom together. As they got to the doorway of the bedroom they heard something drop and saw the toddler almost off the lounge, so the applicant got some large toys to give to the toddler. He went back to the bedroom where he and the complainant resumed kissing and touching. They then had sex on the bed. The complainant did not say anything indicating she wanted to stop (he did not claim she had expressly said anything indicating consent to intercourse). Afterwards he drove the complainant and her children home. At her house she asked if he would like a drink, which he declined. They “had a kiss” near a window, following which they laughed about how the neighbour might have been able to see.

9. [14]

   There were some text and Facebook messages exchanged between them that day and the next. One of those, sent on the afternoon of the next day, was a Facebook screenshot of a meme reading “sometimes you’ve just gotta rip her fucking panties off and make her forget about her bad day”, with a message reading “I am here if you need this haha”. The Crown’s case was that this message constituted an admission to having had sex with the complainant regardless of what she wanted.

10. [15]

    Two days after the intercourse occurred the complainant told a nurse, in the course of a pre-existing appointment, that she had been raped. Later that day she told a friend the applicant had forced sex on her and she told a doctor something similar.

11. [16]

    At the trial the fact of intercourse was agreed. The key dispute related to whether the complainant had consented to it. In closing address the Crown said, with respect to knowledge of non-consent, that the applicant “knew by her words and her actions that she was not consenting” and also referred to recklessness to the possibility of non-consent. The knowledge issue was not addressed in terms by the applicant’s lawyer (Mr Leahy) in closing submissions. Near the beginning of his submissions he said that “[t]he defence is that at all times [the complainant] freely and voluntarily agreed to have sexual intercourse with Mr Koch”. He ended his submissions saying:

12. [17]

    In practical terms knowledge of lack of consent was not in dispute as a separate issue. Whether or not there was knowledge of lack of consent travelled together with the core issue of whether or not the complainant had consented. Of course, as an element of the offence which was not conceded it was necessary for the jury to be satisfied beyond reasonable doubt on the issue.

Relevant legal principles

1. [18]

   Section s 61I of the Crimes Act provides:

2. [19]

   The issue of knowledge about lack of consent was, at the time of the events in question, governed by s 61HE(3) of the Act:

3. [20]

   Section 61HE(3) commenced in December 2018 and replaced s 61HA(3). That provision was not identically worded, but subs (3)(c) was materially the same in each provision.

4. [21]

   In O’Sullivan v R [2012] NSWCCA 45; (2012) 233 A Crim R 449 at [126], Davies and Garling JJ said in this Court that the following direction with respect to s 61HA(3)(c) was unimpeachable: “Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief”. Their Honours noted at [124] that “[d]ecisions in relation to the test for self-defence … were called in aid”, noting in particular Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645; [1987] HCA 26 and Re Conlon (1993) 69 A Crim R 92.

5. [22]

   Both Lazarus and Hayne also concerned s 61HA(3)(c). In Lazarus the impugned direction was as follows (see at [145]):

6. [23]

   It was argued by the applicant in that case that the direction was erroneous in two fundamental respects: “First, it imposes an objective test of reasonableness of the appellant’s belief in consent and, second, it imposes an onus on the appellant to satisfy the jury that he believed the complainant was consenting” (quoting [146]). Justice Fullerton, with the agreement of Hoeben CJ at CL and Adams J, seemed to accept both those arguments in upholding the appeal. Her Honour quoted (at [149]) the discussion of Davies and Garling JJ in O’Sullivan. Her reasoning on the point was as follows (emphasis added):

7. [24]

   In Hayne the impugned directions relevantly were the italicised parts of the following (see at [16]):

8. [25]

   Justice Harrison, with whom Bathurst CJ and Wilson J agreed, upheld the appeal on grounds which included that this direction was erroneous, saying:

9. [26]

   His Honour similarly said that it was erroneous to have suggested that it was sufficient “if in the jury’s view there were no reasonable grounds to believe that she was not consenting, as opposed to the jury specifically considering whether the appellant himself had no reasonable grounds for that belief” (at [34]).

10. [27]

    The Court in Lazarus did not address in terms what the practical difference was between asking “what a reasonable person might have concluded about consent”, which was held to be inconsistent with the statutory provision, and asking whether the accused “has no reasonable grounds for believing” there was consent (to use the statutory phrase). Nor did the Court do so in Hayne with respect to the difference similarly perceived there. That being said, as shall be explained, the drawing of such a distinction was consistent with the common law that had developed with respect to self-defence. Nor did either case address the potential significance of the oft-quoted statement of the High Court in George v Rockett (1990) 170 CLR 104 at 112; [1990] HCA 26 that “[w]hen a statute prescribes that there must be ‘reasonable grounds’ for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person”.

11. [28]

    In the course of argument in this Court counsel was asked to explain the practical effect and significance of the distinction drawn in Lazarus and Hayne. Counsel for the Crown made the following candid submission with respect to Hayne:

12. [29]

    Senior counsel for the applicant said “it is a very fine distinction” but identified two differences between speaking of there being reasonable grounds for a belief and speaking of the particular person having reasonable grounds for that belief. First, it was suggested that it manifests a requirement to focus on what was known to the accused at the relevant time about the circumstances which presented themselves. That necessity can be accepted but, depending on exactly what is said, that understanding is likely to be implicit in speaking about whether there were reasonable grounds for a particular belief said to have been held by a person. Second, he indicated that “there may have been subjective factors” affecting the perception of the person which could affect the assessment. He gave the example of low intelligence. In other words, he was arguing that this Court had implicitly accepted in Lazarus and Hayne that the test introduced in s 61HE(3)(c) was not wholly objective but allowed at least some subjective elements to be brought into consideration.

13. [30]

    The latter submission has some force when the broader context is understood, including with respect to the common law of self-defence. In Lazarus Fullerton J had referred to what Mason J had said in Viro v R (1978) 141 CLR 88 at 146; [1978] HCA 9 with respect to self-defence in cases of homicide. Her Honour had also quoted O’Sullivan, including the reference in that case to Zecevic and Conlon (both involving self-defence). Justice Mason had said in Viro that the first question was whether “the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him”. His Honour explained that “[b]y the expression ‘reasonably believed’ is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself”. Subsequently the common law was stated in terms of whether “the accused believed upon reasonable grounds that it was necessary in delf-defence to do what he did”: Zecevic at 661. That formulation is similar, though not identical, to the language in s 61HE(3)(c) of “has no reasonable grounds for believing”.

14. [31]

    In Conlon Hunt CJ at CL, sitting at first instance, rejected an argument that the Zecevic requirement relating to the accused’s belief upon reasonable grounds was “completely objective” (at 98-101). His Honour held that self-induced intoxication could be taken into account in determining whether the Crown had established that there were no reasonable grounds for a belief by the accused that it was necessary in self-defence to do what he had done. Subsequently, his Honour sitting in this Court in R v Hawes (1994) 35 NSWLR 294, at 304, stated the following in relation to the Zecevic test (with the agreement of Simpson and Bruce JJ):

15. [32]

    Section 61HE(4)(b) expressly excludes self-induced intoxication as being a circumstance to be taken into account in the context of sexual offences. The express exclusion of one personal characteristic is at least consistent with some other personal characteristics of the accused being taken into account for the purposes of s 61HE(3)(c). That understanding gains some support from the drafting history of the provision when first introduced in November 2007 as s 61HA. Earlier that year an exposure draft of proposed amendments had been published as part of a discussion paper. The draft amendments provided that in determining whether a person has reasonable grounds to believe, “regard is to be had to all the circumstances of the case … not including the personal opinions, values and general social and educational development of the person” (proposed s 61R(3) in Appendix 3 to Criminal Law Review Division, Attorney General’s Department, The Law of Consent and Sexual Assault: Discussion Paper, May 2007 at 43). The express exclusion of those subjective matters was not included in the amendments as introduced and passed later that year.

16. [33]

    When the 2007 amendments were introduced to Parliament, the Attorney General said that “[a]n objective test is required to ensure the jury applies its common sense regarding current community standards” (New South Wales Legislative Council, Parliamentary Debates (Hansard), 7 November 2007 at 3585). The Attorney did not address the change from the exposure draft just identified.

17. [34]

    The change led to the following observations being made by an English academic (Stephen Banks, “An Honest but Mistaken Belief in London Legislation? Consent, Controversy and Sexual Offence Reform in New South Wales” (2008) 42(2) Law Teacher 228 at 233):

18. [35]

    In the United Kingdom, s 1(1)(c) of the Sexual Offences Act 2003 provides that one element of the offence of rape is that “A does not reasonably believe that B consents”. Section 1(2) provides that “[w]hether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents”. With respect to the extent to which this permits account to be taken of the personal characteristics of the accused, the English Court of Appeal has held that a delusional belief connected with a mental disorder was by definition irrational and therefore not reasonable: R v B [2013] EWCA Crim 3 at [35]. An inability of a person with autism to recognise behavioural cues could go to whether or not a belief in consent was reasonable but only if established by evidence to be relevant to that belief: R v Jacobs [2023] EWCA Crim 1503 at [80]-[81] and [94]-[96].

19. [36]

    In this State, after Lazarus, the NSW Law Reform Commission touched on the nature of the s 61HE(3)(c) test in its Report No 148, Consent in Relation to Sexual Offences (September 2020). After discussing Lazarus the Report said, quoting one of the submissions made to it:

20. [37]

    Dr Andrew Dyer has argued that s 61HE(3)(c) imports consideration of some subjective features, explaining the inquiry as follows (“Sexual Assault Law Reform in New South Wales: Why the Lazarus Litigation Demonstrates No Need for s 61HE of the Crimes Act to be Changed (Except in One Minor Respect)” (2019) 43 Criminal Law Journal 78 at 91-92):

21. [38]

    As Dr Dyer went on to note, a similar issue has arisen in Queensland and Western Australia, where s 24 of each State’s Criminal Code provides that:

22. [39]

    This provision does not speak of having “reasonable grounds” for believing but, relevantly, of a “reasonable belief”. In any event, it has been held in Queensland that having an intellectual impairment and speaking little English were relevant circumstances in considering the reasonableness of a mistake (R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420 at [53] and [89]-[92], cf [25]). In Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229 McLure JA said (speaking for the Court):

23. [40]

    That statement was endorsed in Butler v Western Australia [2013] WASCA 242 at [23]-[24], [130], [158]-[160].

24. [41]

    In R v Wilson [2009] 1 Qd R 476; [2008] QCA 349 the Court of Appeal moved beyond taking account of personal characteristics of the accused. The case involved a motorcyclist charged with dangerous driving causing death. The accused had overtaken a car and then collided with a motorcyclist coming in the other direction. The Court perceived an “admittedly subtle” distinction between a direction given in terms of whether any reasonable person would or should have observed the oncoming motorcyclist, and whether there were no reasonable grounds for the accused’s honest but mistaken belief that it was safe to overtake (at [20]). The perceived error seems to have involved incorrectly focusing on the reasonableness of the accused’s actions as opposed to the reasonableness of his belief. Thus Douglas J said that the direction given, “in emphasising the behaviour of ordinary, reasonable people, shifts the focus away from an objective examination of [the accused’s] belief” (at [52]).

25. [42]

    If and to the extent that the s 61HE(3)(c) test does permit taking account of particular subjective characteristics of an accused then a line-drawing issue arises. So much is illustrated by what was said in Aubertin and in the English cases. The more such personal characteristics that are taken into account, the less objective the test becomes, and the more it moves away from having a jury apply “common sense regarding current community standards” (to quote the Attorney’s second reading speech). These issues have not been explored in judgments in this State. Section 61HE has now been repealed. Nevertheless, it and its predecessor (s 61HA) still have significance for alleged offences that occurred between 1 January 2008, when s 61HA commenced operation, and 31 May 2022, when s 61HE ceased to apply. This case is not an appropriate vehicle for resolving them.

26. [43]

    As noted above (at [29]), senior counsel for the applicant identified two points of claimed practical significance in distinguishing between there being no reasonable grounds for believing that the complainant was consenting and the accused himself having no reasonable grounds for that belief. As to the first, as already indicated, there can be little doubt that s 61HE(3)(c) requires a focus on the circumstances known to the accused at the time. As to the second, given the context outlined I shall assume (without deciding) that the applicant is correct to argue that s 61HE(3)(c) is not a wholly objective test but allows at least some subjective characteristics of the accused to be taken into account when assessing whether they had reasonable grounds for believing that the alleged victim consented to the sexual activity.

27. [44]

    It is notable that the applicant in this matter did not seek to invoke any particular personal characteristic as being significant for the purposes of s 61HE(3)(c). Indeed, as regards ground 1, he did not identify any particular prejudice suffered by the impugned aspects of the trial judge’s directions, beyond relying on what had been said in Lazarus and Hayne as to how such directions should and should not be given.

28. [45]

    As the Crown submitted, both grounds of appeal involve second limb error for the purposes of s 6(1) of the Criminal Appeal Act 1912 (NSW): note MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 at [102]. For the applicant to make out such error it is necessary for him to establish that the trial judge made an error on a question of law that has legal effect in the trial, and that the error either involved a failure to observe the requirements of the criminal process in a fundamental respect or was material in the sense that it could realistically have affected the reasoning of the jury to the verdict of guilty: ibid at [3], [30]-[33], [44], [56], [98]-[107]. As to the latter requirement, senior counsel for the applicant put his submissions in terms of the claimed errors being material rather than suggesting that there had been a fundamental failure to observe the requirements of the criminal process. The Crown disputed that there had been any error on a question of law that had legal effect in the trial, and further argued that if there had been any such error it was not material.

29. [46]

    Determination of whether there has been a misdirection requires a holistic assessment of the directions rather than scrutinising a specific phrase or sentence in an acontextual fashion. Principles on the point were summarised in Cliff v R [2023] NSWCCA 15:

30. [47]

    The conclusion reached in Cliff was as follows:

31. [48]

    The claimed error in that case had been expressed in terms of a miscarriage of justice. The same imperative of viewing the directions in their totality arises when second limb error is alleged. Doing so is part of assessing whether there was any error on a question of law which had legal effect in the trial. A slip or error made in summing-up may be corrected or of no practical significance when it is considered in context. It may be that “the context cures whatever error there may have been conveyed by that passage when taken by itself”: Hawes at 306.

32. [49]

    That point might also be expressed in terms of materiality. An error that is corrected or of no practical significance in context is not likely to be one that could realistically have affected the reasoning of the jury to the verdict of guilty. Both steps involve paying attention to the directions as a whole: an impugned direction may disclose no error with legal effect in the trial when considered in the complete context of what was said to the jury; or it may contain an error that, in context, was ultimately immaterial in the relevant sense.

The impugned directions

1. [50]

   Both grounds of appeal impugn directions given to the jury by the trial judge in response to a jury note received after the jury had retired. The jury had retired to consider its verdict at 10:54am on 15 April 2024. The note was addressed in court at around 3:00pm later that day. It read: “Could we please have clarification on the judge’s directions about knowing she was not consenting”. The trial judge’s immediate reaction, on reading the note out to counsel, was to say: “I didn't say a lot about this because with respect, that's not an issue in the trial. Is it?” The Crown Prosecutor responded: “Your Honour, from memory your Honour directed on knowledge and reckless, and the Crown closed on both, but primarily knowledge.” In fact, in her summing-up the trial judge had referred to the s 61HE(3)(c) route when addressing on the elements of the offence, saying: “Or the accused may have actually believed the complainant consented but he had no reasonable grounds for that belief”.

2. [51]

   Discussion then ensued between the trial judge and counsel, running over about six pages of transcript. In the following exchange the lawyer then appearing for the applicant raised an issue about the applicant believing that the complainant was consenting:

3. [52]

   The trial judge went on to note that the s 61HE(3)(c) route to establishing knowledge of lack of consent had not been run by the Crown. The Crown Prosecutor responded: “My friend said before he’d prefer that ground being left. I note what your Honour’s said, and I’m not trying to change the Crown case.”

4. [53]

   The discussion concluded with the trial judge proposing a direction on the point in the following terms:

5. [54]

   The jury then returned to the courtroom and the trial judge made the following directions (the portions impugned on the first ground are italicised, and those impugned on the second ground are in bold):

6. [55]

   The jury retired again. The trial judge then checked with each side if they had any comment on her directions, including asking “You can’t see anything there in the (d) that I should have said?”, referring to her direction on the s 61HE(3)(c) aspect. Both sides indicated that they had nothing to raise.

Ground 1: “no reasonable grounds” stated in the abstract

1. [56]

   The impugned directions are contained within two paragraphs of the further oral directions of the trial judge. The applicant acknowledged that much of what her Honour said was unobjectionable. And no criticism was made of her Honour’s summing up prior to the jury note being received. The substance of his criticism was as follows:

2. [57]

   The first portion complained of in relation to this ground was her Honour saying: “If you are satisfied of that belief, and that there were no reasonable grounds for that belief – I'll go back”. But this sentence was preceded by a statement which the applicant accepted to be correct: “Or the accused, this is (d), may have actually believed the complainant consented but he had no reasonable grounds for that belief”. And when her Honour said “I’ll go back”, she was indicating that the sentence she had started was not quite right and, as senior counsel for the applicant himself put it, “she will go back to recast it”.

3. [58]

   The applicant then complained about part of the sentence that followed: “The accused may have actually believed the complainant consented, but he had no reasonable grounds for that belief, so the Crown has to satisfy you beyond reasonable doubt that even though he believed there was consent, there was no reasonable grounds for that belief”. The italicised phrase taken in isolation might be seen as problematic in light of Lazarus and Hayne. But earlier in that very sentence the trial judge had expressed the issue in terms of “he had no reasonable grounds for that belief”. The phrase at the end of the sentence cannot be divorced from what had come near its beginning.

4. [59]

   Her Honour then reiterated the four types of knowledge, which ended with her saying “actual belief, but even if he had an actual belief, the Crown can prove that he had no reasonable grounds for that belief”. The first reference to “actual belief” is criticised for the purposes of ground 2. Leaving that aside for the moment, the remainder of the reiteration was consistent with the statutory language of s 61HE(3)(c), as the applicant accepted.

5. [60]

   It should be recalled that when summing-up earlier the trial judge had also given a direction about this possibility which the applicant accepted was consistent with the provision (quoted above at [50]).

6. [61]

   In sum, her Honour’s original direction was sound; her first and last statements on the subject in her further directions were sound; the first impugned statement was clearly withdrawn; and the second must be understood as part of a longer sentence. Moreover, shortly before the impugned directions the trial judge had said: “It is not a question about what you or anyone else would have known, thought or believed in the circumstances. It is what he knew, thought or believed.” Those sentences applied to all of the ways in which knowledge could be established. They directed the jury’s attention to focus on what the applicant knew and believed.

7. [62]

   The applicant has not established that there was, overall, any misdirection of the kind alleged, nor any realistic chance of confusion which could have affected the jury’s reasoning to the verdict of guilty. In context there was no error of law which had legal effect and the infelicities of expression were not material in the relevant sense.

8. [63]

   The applicant’s complaint on this ground fails for a further, overlapping reason relating to materiality. As explained above, when senior counsel for the applicant was asked about the practical significance of the distinction drawn between referring to there being no reasonable grounds for the relevant belief and the applicant having no reasonable grounds for that belief, he identified the need to focus on the circumstances known to the applicant at the relevant time and the potential for taking account of some subjective characteristics of the accused. Yet it was not argued that the impugned directions had the effect of suggesting it was not necessary to focus on what was known to the applicant. As just noted, her Honour had made that very point just before going through the four variants of knowledge. And there was no suggestion in this case that any particular personal characteristics of the applicant should have been taken into account in considering whether he had no reasonable grounds for believing that the complainant consented to the intercourse that occurred. The applicant’s complaint seems to be a theoretical one rather than establishing that any infelicities of expression could realistically have affected the reasoning of the jury to the verdict of guilty. I note for completeness that the judgments in Lazarus and Hayne did not consider the notion of materiality in the sense explained as they preceded the clear adoption of relevant principles by the High Court in that regard in Brawn v The Queen [2025] HCA 20; (2025) 99 ALJR 872 and MDP.

9. [64]

   There is another, again overlapping, reason why ground 1 should fail. No objection was taken to the directions by the lawyer appearing for the applicant in the court below. The applicant therefore needs leave to raise both grounds pursuant to r 4.15. As this Court said recently in Al-Sheikh v R [2025] NSWCCA 205 with respect to that rule:

10. [65]

    Where “the accused has been represented at trial by competent counsel, the reaction of defence counsel on hearing the impugned portion of the summing up is a cogent consideration”: The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [37]; note also Hamilton v The Queen (2021) 274 CLR 531; [2021] HCA 33 at [54]; BQ v The King (2024) 279 CLR 124; [2024] HCA 29 at [56]. Here, it was not suggested that the applicant’s lawyer was not an experienced and able criminal practitioner. Any such suggestion would not have found support in the transcript.

11. [66]

    Here, that the applicant’s lawyer did not criticise or seek clarification of the impugned directions is unsurprising. At worst there were some strict errors of expression in parts of what her Honour said. The issue of knowledge was far from being the main dispute in the trial. Two starkly different versions of events had been given. On the complainant’s account there had been intercourse with force and in the face of her express refusal of consent and physical resistance. On the applicant’s account there had been an affectionate intimate encounter. The jury had to decide whether to accept the complainant’s account sufficiently to establish the applicant’s guilt beyond reasonable doubt, as her Honour had made clear. The Crown’s primary case on knowledge was that the applicant had actual knowledge of the complainant’s lack of consent, and its secondary case was that the applicant had been reckless as to her lack of consent. It had not placed any reliance upon the s 61HE(3)(c) route.

12. [67]

    There was some debate between the parties as to whether the fact that the jury had asked a specific question about knowledge should be regarded as elevating the issue of knowledge of consent, and a possible s 61HE(3)(c) pathway, despite the fact that it had not been a focus of dispute between the parties. It is not necessary to seek to resolve that debate given that the lack of complaint by the applicant’s then lawyer occurred in the very context of the trial judge answering the jury’s question in the note, and where it was that lawyer himself who had then asked the trial judge to direct the jury about the s 61HE(3)(c) aspect of knowledge.

13. [68]

    In the context outlined the absence of objection indicates that there was no confusion of any practical significance created by her Honour’s directions. The applicant submitted that leave should be granted because the impugned directions went to the elements of the offence and there could be no forensic benefit to the applicant in not challenging them. That a misdirection relates to an element is a relevant consideration. For example, that there has been a misdirection on an element of liability in issue or on a defence or partial defence weighs against potential application of the proviso: eg Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [15], see also [56]. The joint judgment in Kalbasi referred to Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 at [50]. Four members of the High Court said there that “[w]here, as here, the legal error at the trial was a wrong direction relating to an element of liability, the significance of the verdict was to be assessed in light of the capacity of the misdirection to have led the jury to wrongly reason to guilt”. The plurality went on to hold that the misdirection in question did not have that capacity. In so doing it took account, amongst other things, of the facts that the applicant was represented at the trial by senior counsel and there had been no objection to the directions on informed consent (at [56]). Thus for the purposes of the proviso the fact that there has been some misdirection on an element does not necessarily preclude application of the proviso. The same is true at the earlier stage of analysis in considering the issue raised by r 4.15.

14. [69]

    Here, the context of her Honour’s infelicities of expression has been outlined. That the infelicities related to one possible route to finding knowledge of lack of consent – being a route not argued by the Crown – does not outweigh the fact that the lack of objection in the circumstances and atmosphere of this trial indicates that the finely drawn criticisms now made were not of practical consequence.

15. [70]

    In R v Petroff (1980) 2 A Crim R 101 at 129, Roden J said:

16. [71]

    His Honour was in dissent in that case but not in a manner which undermines the force of these statements. They are apposite in this matter.

Ground 2: shifting of the onus

1. [72]

   The applicant contended that given certain phrases used by her Honour, “the totality of the directions improperly placed at least an evidentiary burden upon the appellant” in relation to his belief that the complainant had consented.

2. [73]

   To begin with the issue should be put in legal context. As the trial judge identified, and as this Court discussed in Lee v The King [2023] NSWCCA 203; (2023) 310 A Crim R 170 at [147]-[153], s 61HE(3) can be seen to create four types of knowledge of lack of consent: actual knowledge; advertent recklessness; inadvertent recklessness; and the relevant category of the accused having no reasonable grounds for believing in consent. As was explained in Lee (in a passage not addressing issues of onus – see [151]):

3. [74]

   If the Crown establishes beyond reasonable doubt that the accused knew (and thus believed) that the complainant was not consenting, then that will fall within the first category. If the Crown establishes beyond reasonable doubt that the accused was reckless as to consent, that will fall within the second or third categories. As it was put in Lee at [155], “[t]he fourth category is speaking of a state of active advertence; namely, belief in consent”. Of its nature the fourth category will only arise where there is some basis to consider that the accused did believe that the complainant was consenting to the sexual activity. That is, the fourth category is practically relevant where there is a reasonable possibility that the accused did believe the complainant was consenting, but the Crown alleges that there were no reasonable grounds for any such belief.

4. [75]

   Thus the very premise of the fourth category being considered is that there is a reasonable possibility that the accused in fact believed – ie actually believed – the complainant was consenting. Of course, at no point does the accused bear any onus to establish anything with respect to the knowledge element of relevant sexual offences. As it was put in Lee:

5. [76]

   Thus the Bench Book direction with respect to s 61HE(3)(c) – which the applicant quoted to this Court without criticism – states “the accused may have actually believed the complainant consented, but the accused had no reasonable grounds for that belief” (emphasis added).

6. [77]

   In this matter the trial judge had given essentially that direction in the course of her original summing-up (quoted above at [50]). The applicant said that that was unobjectionable. And that direction was repeated at the start of the paragraph containing the impugned directions. Again, the applicant did not criticise it.

7. [78]

   The first impugned phrase was in what immediately followed that sentence (highlighting the words criticised): “So the accused may have actually believed the complainant consented. If you are satisfied of that belief, and that there were no reasonable grounds for that belief - I'll go back”. Yet, as explained, the sentence in question effectively was withdrawn. And the preceding sentence involved the judge reiterating, by way of emphasis, the uncriticised reference to what the accused may have actually believed. The criticised words do not have the significance attributed to them by the applicant.

8. [79]

   The applicant then attacks the emphasised portions of the sentence that followed the withdrawn sentence: “The accused may have actually believed the complainant consented, but he had no reasonable grounds for that belief, so the Crown has to satisfy you beyond reasonable doubt that even though he believed there was consent, there was no reasonable grounds for that belief”. The applicant said of the words “actually believed” in this sentence that:

9. [80]

   That complaint is without merit given that the words “actually believed” are preceded by “may have”, and the applicant accepted that speaking of what the applicant “may have actually believed” was unobjectionable. The significance of that phrase was not altered by the withdrawn reference to “satisfied”.

10. [81]

    The second set of impugned words in the sentence (“even though he believed there was consent”) might in isolation suggest there was some need to prove that the applicant held such a belief. But the immediately preceding words were “so the Crown has to satisfy you beyond reasonable doubt that even though …”. Thus insofar as there was any suggestion of the issue of his belief in consent needing to be proved, the implication was that the Crown had to address the issue beyond reasonable doubt, not that the applicant bore any onus. In any event, again, the sentence must be read as a whole. And it begins by talking in terms of what the accused may have actually believed, doing so for the third time in four sentences.

11. [82]

    The applicant argued that the risk of the jury understanding that it needed a positive satisfaction that the applicant believed the complainant consented was “cemented” by the following impugned words (contained in the next two sentences of her Honour’s directions):

12. [83]

    The applicant said that “[o]f course, proof of ‘actual knowledge’ required the Crown to prove that the accused knew that the complainant was not consenting”. He argued that the use of the expression “actual belief” would “likewise have been understood as requiring a satisfaction that the appellant had held that belief in consent”. Why that would suggest that the applicant bore some onus is unclear. The trial judge was summarising the four categories of knowledge. Her Honour preceded that summary by referring to “the different alternatives in respect of which knowledge of lack of consent can be proved”, implicitly referring to the onus being on the Crown. Her Honour had made that clear near the start of these directions when she said: “The Crown is required to prove the accused knew the complainant did not consent to the sexual intercourse”. The applicant did not suggest the trial judge was implying that her shorthand summary of the first category – “actual knowledge” – would be taken to suggest any onus on him. There is no reason that the jury would have understood the position to be different with respect to the fourth category. That is especially so given that her Honour said “actual belief, but even if he had an actual belief”. The meaning of “even if” is to the same effect as if she had said “may have had an actual belief”.

13. [84]

    As explained above, the impugned words must be read in context. Standing back and taking account of the whole of the directions given by the trial judge in response to the jury note, I do not consider that there was a real risk that the jury would have understood that the applicant bore any onus with respect to any aspect of the element relating to the applicant’s knowledge of the complainant’s lack of consent. Again, as for the first ground, in context there was no error of law which had legal effect, and any infelicities of expression could not realistically have affected the reasoning of the jury to the verdict of guilty. Nor is this conclusion altered if the matters complained of with respect to both grounds are taken into account cumulatively.

14. [85]

    The conclusion on this ground is reinforced by the directions that the trial judge had earlier given about onus and about the knowledge element in the course of her summing up, which included the following:

15. [86]

    Thus throughout the summing up her Honour gave repeated, very clear explanations of the principle that the Crown bore the onus of proof, including with respect to the mens rea element of the offence. The applicant did not suggest otherwise. Whilst these statements were made on the sitting day prior to the jury’s note, their emphatic and repeated nature could hardly have sent a clearer message to the jury. It is not plausible that the force of this message would have been undermined by the impugned portions of her Honour’s further directions.

16. [87]

    That leads to a further reason for rejecting the ground: the fact that no objection was taken by the applicant’s lawyer to the further directions given. Here, as for ground 1, the absence of objection strongly suggests that in the atmosphere and circumstances of the trial there could have been no confusion in what the jury was led to understand about the Crown’s onus with respect to the mens rea element of the offence, including with respect to the fourth category. In this context leave to appeal should not be granted.

Conclusion

1. [88]

   Leave to appeal should be refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

2. [89]

   SWEENEY AND COLEMAN JJ: We have had the benefit of reading in draft the judgment of Kirk JA. We agree with his Honour’s disposition of the grounds of appeal and proposed order.

3. [90]

   We agree that this case is not an appropriate vehicle to resolve the issues raised in his Honour’s consideration of the repealed s 61HE, particularly those at [42].