A direction that the mens rea element of rape is established if the accused was aware the complainant might be asleep is erroneous, because the jury must separately consider whether the accused believed the complainant was consenting notwithstanding awareness she might be asleep. The Crown must prove the mental element of rape under s 38(2)(a) even where the defence does not expressly raise belief in consent and no direct evidence of such belief is adduced. Evidence of the complainant's silence during physical manoeuvres preceding penetration is capable of founding an inference that the accused believed the complainant was consenting.
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