Advertent recklessness as to consent under s 61R of the Crimes Act 1900 (NSW) is established by proof that the accused realised there was a real (not merely bare) possibility that the complainant was not consenting and decided to proceed with sexual intercourse — no additional independent requirement of 'determination' to proceed regardless of consent need be proved. An accused who proceeds with awareness of a real possibility of non-consent inherently decides to proceed whether or not the complainant is consenting. However, if the accused believed the complainant was consenting, he must be acquitted regardless of whether that belief was based on reasonable grounds.
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