every person has a right to choose whether or not to participate in a sexual activity

consent to a sexual activity is not to be presumed

consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity.

It is good practice to provide the elements of the offence to the jury in written form. The list of elements below could form the basis of this document.

It is suggested that consideration be given to whether it is more helpful to explain the competing cases of the parties overall for the jury after identifying the separate elements of the offence or as the directions are given for each element.

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].

The suggested direction is framed in terms of what the Crown is required to prove. It is a matter of discretion as to how often it is appropriate to remind the jury that the accused is not obliged to prove anything.

Although in the following notes reference is made to the NSWLRC’s Report and to the Second Reading Speech for the amending Act, it is not suggested these can necessarily be relied on to resolve issues that may arise when interpreting these provisions: Interpretation Act 1987, s 34(1)(b). Additionally, where the language used for particular provisions in Pt 3, Div 10, Subdiv 1A of the Crimes Act 1900 is somewhat similar to the previous legislation, it should not be assumed the meaning ascribed will automatically conform with previous case law. See GS v R [2022] NSWCCA 65 at [38]–[41] and Totaan v R [2022] NSWCCA 75 at [78]–[83] for discussion of approaches to construction of criminal statutes.

Section 61HI, provides for the meaning of consent generally, and states:

The phrase “at the time of the relevant sexual activity” was added to s 61HI(1) at the recommendation of the NSWLRC (Report 148: Consent in relation to sexual offences, September 2020 at p xiii). It did not appear in s 61HE(2) (rep).

When describing how free and voluntary consent might be communicated (s 61HI(1)), the Attorney General said this may include “reciprocating body language or affirming remarks throughout a sexual encounter”: Second Reading Speech, Legislative Assembly, Debates, 20 October 2021, at p 7507.

Section 61HJ(1) provides that a person does not consent to a sexual activity in the circumstances listed in s 61HJ(1)(a)–(k). This differs from, for example, s 61HE(8)(rep) which provided for grounds where it “may be” established that a person does not consent to a sexual activity. The list of circumstances in s 61HJ(1) is not exhaustive: s 61HJ(2).

There is a distinction between the circumstances listed in ss 61HJ(1)(a)–(d) and the balance. Section 61HJ(1)(a)–61HJ(1)(d) does not contain a causal component. For example, s 61HJ(1)(d) provides that a person does not consent to a sexual activity if “the person is unconscious or asleep”. Accordingly, if the Crown proves beyond reasonable doubt, for example, that the complainant was unconscious, then there is no consent. By comparison, there is a causal component for each of the circumstances listed in s 61HJ(1)(e)–61HJ(1)(k).

A number of the circumstances listed in s 61HJ(1) were previously in s 61HE(5)–(8) (rep) but not all are replicated in identical terms. The following new circumstances provide that a person does not consent to sexual activity if they:

Fraudulent inducement

Section 61HJ(1)(k) is in different terms to its predecessor, s 61HE(6)(d) (rep), which stated that a person did not consent to a sexual activity if they had “any other mistaken belief about the nature of the activity induced by fraudulent means”.

A “fraudulent inducement” is not defined. While s 61HJ(3) provides that a “fraudulent inducement” does not include a misrepresentation about a person’s income, wealth or feelings, the conduct that might amount to a fraudulent inducement is otherwise unlimited. However, the Attorney-General said the relevant conduct must amount to a “very serious deceit”. The example given was those cases where sex workers are fraudulently promised payment for sexual services. The Attorney said that it was unlikely that s 61HI(1)(k) would extend to “pick-up lines or white lies”: Second Reading Speech, above, p 7510.

The use of “because of” in s 61HJ(1)(k) makes clear that there is a causal connection between the fraudulent inducement and the complainant’s participation in the relevant sexual activity. This differs from the common law which provided that consent to an act of sexual intercourse was vitiated by fraud when the fraud concerned the nature and character of the act: see R v Clarence (1888) 22 QBD 23 at 43; Papadimitropoulos v The Queen (1957) 98 CLR 249 at 260–261; see also Michael v Western Australia [2007] WASCA 66 at [314]–[333] for a discussion of the common law and its application.

Some guidance about conduct that might constitute a “fraudulent inducement”, may be found in existing Australian case law in those jurisdictions where the relevant legislation is similar to that of NSW: see for example s 319(2)(a) Criminal Code (WA) and s 67(1) Crimes Act 1900 (ACT); cf s 348 Criminal Code 1899 (Qld) and the discussion of some of the differences by Refshauge ACJ in R v Tamawiwy (No 2) (2015) ACTLR 82 at [37]–[52].

In Higgins v Western Australia [2016] WASCA 142, Mazza J described a fraudulent or deceitful representation as one “which is false in fact and which the maker knows at the time of making it to be false.”: at [142]. By making the representation, the accused must intend to obtain the complainant’s consent to the relevant sexual activity when they would not otherwise have consented: Higgins v Western Australia at [142].

In Michael v Western Australia, the majority concluded that the actions of the accused, who pretended he was a police officer, to induce the complainants, who were both sex workers, to engage in sexual intercourse for a reduced, or no, fee was sufficient to negate consent: at [88] (Steytler, P); [164]–[166] (Miller JA); cf Heenan AJA at [376]. In R v Tamawiwy (No 2), the accused represented to the complainant that he was a woman with two young female friends, all three of whom were willing to have sexual intercourse with the complainant provided he first engaged in sexual activity with the accused (introduced by a false name). Refshauge ACJ, who was determining a no case submission, described the representations as “a serious deception” and “elaborate hoax” and concluded that a jury might properly find they amounted to fraudulent misrepresentations: [58], [64]–[66]. Onnis v R [2013] VSCA 271, which concerned multiple case of procuring sexual penetration by fraud (Crimes Act 1958 (Vic), s 57(2)), involved conduct similar to that in R v Tamawiwy (No 2): see [7]–[16]. In DPP v Macfie [2012] VSCA 314, where the offender was charged with procuring sexual penetration by fraudulent means, he induced young girls to have sex with him by telling them he was a member of the Mafia, promising them things such as money and iPhones, also saying that a condition of them joining the Mafia was that they had sex with him.

The Crown should precisely identify the fraudulent inducement from the outset of the trial: R v Tamawiwy (No 2) at [15].

Knowledge about consent

Section 61HK(1) provides that the accused is taken to know that another person does not consent to a sexual activity if—

In R v Tolmie (1995) 37 NSWLR 660 at 672D Kirby P stated that recklessness is established “where the accused has not considered the question of consent and a risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it” (emphasis added). In Tuuholoaki v R [2024] NSWCCA 135 at [274] Adamson JA (Wilson and Faulkner JJ agreeing) held the italicised words above were used in R v Tolmie in the context of a consideration of the law and there was no indication they were intended to form part of directions to a jury. It was not considered in Tuuholoaki v R or in Lee v R [2023] NSWCCA 203 that the words are required in directions in every case. The suggested direction at [5-910] allows for the words to be used in appropriate cases.

With the exception of the addition of the word “actually” in s 61HK(1)(a), s 61HK(1)(a) and 61HK(1)(b) are in relevantly identical terms to s 61HE(3)(a) and 61HE(3)(b) (rep).

In R v Tolmie (1995) 37 NSWLR 660 at 672D Kirby P stated that recklessness is established “where the accused has not considered the question of consent and a risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it” (emphasis added). In Tuuholoaki v R [2024] NSWCCA 135 at [274] Adamson JA (Wilson and Faulkner JJ agreeing) held the italicised words above were used in Tolmie in the context of a consideration of the law and there was no indication they were intended to form part of directions to a jury. It was not considered in Tuuholoaki or in Lee v R [2023] NSWCCA 203 that the words are required in directions in every case. The suggested direction at [5-910] allows for the words to be used in appropriate cases.

Whether an accused’s belief as to consent was “not reasonable in the circumstances” involves a hybrid subjective/objective test. As to the subjective aspect, the relevant belief is that of the accused: see O’Sullivan v R [2012] NSWCCA 45 at [124]–[126]. The onus is on the Crown to prove beyond reasonable doubt that the accused’s belief was not reasonable in the circumstances. If there is something in the evidence that may give rise to a possibility the accused had a belief the complainant was consenting, a direction will be required as to the need for the Crown to prove beyond reasonable doubt that such a belief was not a reasonable one. There is no onus on the accused. Assistance with the concept of “reasonableness” might be derived from Aubertin v Western Australia (2006) WAR 87 at [25]–[44]; see also Doran v Director of Public Prosecutions [2019] NSWSC 1191 at [36]–[47].

In determining whether the accused’s belief was “not reasonable in the circumstances”, s 61HK(2) states that a belief is not reasonable if the accused:

A “reasonable time” is not defined.

Section 61HK(3) provides that s 61HK(2) does not apply if, at the time of the relevant sexual activity, the accused had a cognitive impairment or a mental health impairment, and the impairment was a substantial cause of the accused not saying or doing anything. “Mental health impairment” is defined in s 4C Crimes Act. “Cognitive impairment” is defined, in this context, by reference to s 23A(8) of the Crimes Act: s 61HK(3)(a)(i). Both definitions are identical to those found in ss 4 and 5 Mental Health and Cognitive Impairment Forensic Provisions Act 2020. See [4-304] “Statutory definitions of mental health and cognitive impairments” in Procedures for fitness to be tried (including special hearings). The onus of establishing one of the matters referred to in s 61HK(3) is on the accused on the balance of probabilities: s 61HK(4). It is noted that the definition of “cognitive impairment” which applies in s 61HK(3) is that set out in s 23A(8) of the Crimes Act and not the definition of “cognitive impairment” which otherwise applies in Div 10 of Pt 3, which is that set out in s 61HD. The reason for the distinction appears to be that s 61HK(3)(a) concerns cognitive impairment of an accused person, whereas the other references to cognitive impairment in Div 10 are references to the cognitive impairment of the victim of sexual offences.