Sex without Consent

In Director of Public Prosecutions Reference No 1 of 2002 [2002] NTCCA 11, The Director of Public Prosecutions has referred for consideration and opinion of this Court the following points of law arising at the trial:
“1. Was the learned trial judge correct in directing the jury, in respect of the elements of the offence prescribed by s192(3) of the Criminal Code, that the Crown must prove beyond reasonable doubt, not only
(a) that the accused had sexual intercourse with the complainant, and
(b) that the complainant did not give her consent to the accused having sexual intercourse with her

but also
(c) that the accused intended to have sexual intercourse with the complainant without her consent?

2. Was the learned trial judge correct in directing the jury, in respect of the issue of the accused’s mistaken belief as to consent, that such a mistaken belief need not be based on reasonable grounds?”
We are focusing on the question 2 where questing is if the mistaken belief need not to be reasonable. 
4 out 5 judges answered both questions affirmative. 
In Appeal against decision was refused at High Court of Australia. Director of Public Prosecutions (Nt) v WJI [2004] HCA 47
In the decision, the “sexual intercourse without consent” was considered as an event. Now, defendant had mistaken belief that victim has given consent, if he knew it, he would not have had sex with her. He did not intend to have sex with her without consent, he did not foresee the consequences that his act would be considered as rape.
Now in the same case, it was stated that, the mistaken belief does not need to be reasonable.
His honour Bailey J stated 
“…  In my view, it is also clear that by including “event” in s31(1) of the Code, the intention of the legislature was to impose criminal responsibility only where a person’s mental state does encompass the consequences of his actions. Such an approach is consistent with “the fundamental principle that the criminal law is designed to punish the vicious not the stupid or the credulous” (R v Brown (1975) 10 SASR 139 at 148). Accordingly, if an accused neither intends to have sexual intercourse without consent nor foresees this as a possible consequence of his conduct, he is excused from criminal responsibility pursuant to s23 and s31(1).”

Criminal Code Act 1983 (NT)

Part II – Criminal responsibility

Division 4 – Excuse

Section 31 Unwilled act etc. and accident

(1) A person is excused from criminal responsibility for an act, omission or event unless it was  intended  or  foreseen  by  him  as  a  possible  consequence of his conduct.

(2) A person who does not intend a  particular  act,  omission  or  event,  but foresees it as a possible consequence of his conduct, and that particular  act,  omission  or  event  occurs,  is  excused  from  criminal  responsibility for it if, in all the circumstances, including the chance of   it   occurring   and   its   nature,   an   ordinary   person   similarly   circumstanced  and  having  such  foresight  would  have  proceeded  with that conduct.

(3) This section does not apply to an offence against section 155.

Section 32 Mistake of fact

A  person  who  does,  makes  or  causes  an  act,  omission  or  event  under   an   honest   and   reasonable,   but   mistaken,   belief   in   the   existence of any state of things is not criminally responsible for it to any greater extent than if the real state of things had been such as he believed to exist.

Criminal Code 1899 (QLD)

23 Intention—motive

(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

(a) an act or omission that occurs independently of the exercise of the person’s will; or

(b) an event that—

(i) the person does not intend or foresee as a possible consequence; and
(ii) an ordinary person would not reasonably foresee as a possible consequence.


Parliament, in amending subsection (1) (b) by the Criminal Code and Other Legislation Amendment Act 2011 , did not intend to change the circumstances in which a person is criminally responsible.

(1A) However, under subsection (1) (b) , the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality.

(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

24 Mistake of fact

(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.


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