A direction that the Crown must prove the accused 'had no belief that the complainant was consenting' is not equivalent to a direction that the Crown must prove the accused knew the complainant was not consenting; the former is erroneous as a direction on the knowledge element of s 61I of the Crimes Act 1900 (NSW). However, the proviso may apply where the undisputed evidence leaves no rational inference other than knowledge of lack of consent. An offence of attempting to commit sexual intercourse without consent (s 61P read with s 61I) is a serious indictable offence within s 4 of the Crimes Act without resort to s 344A.
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