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