In sexual penetration cases under the Criminal Code (WA), where the accused's evidence is not that the complainant expressly consented but rather that the complainant did not refuse or resist, the defence of honest and reasonable but mistaken belief under s 24 may be raised and must be left to the jury. The trial judge must consider the version of events most favourable to the accused, not merely the complainant's evidence, in determining whether the defence is reasonably open. However, where the accused's evidence is that there was only one act of penetration and the count relates to a separate alleged act, no foundation for the s 24 defence exists for that count.
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