Where the accused's case at trial is one of full consent (rather than mistaken belief in consent), a direction on recklessness under s 61R(1) of the Crimes Act 1900 (NSW) will seldom be necessary, and an incomplete direction on recklessness in such circumstances will not give rise to a substantial miscarriage of justice. The model direction for recklessness under s 61R(1), when required, must address both advertent recklessness (realisation of the possibility of non-consent: Hemsley) and non-advertent recklessness (failure to consider consent where the risk would have been obvious to a person of the accused's mental capacity: Tolmie).
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