When assessing whether the evidentiary burden for the s 24 mistake defence has been discharged, a trial judge must take into account the accused's intellectual disability in relation to both the wholly subjective element (honest belief) and the mixed subjective-objective element (reasonable grounds for that belief). Failure to do so constitutes a material error. An accused need not have expressly stated a positive belief in consent; such a belief may be inferred from the accused's evidence as to the relevant facts and circumstances. Where the prosecution case is weak and the complainant's credibility has been found wanting by the trial judge, an acquittal rather than retrial may be appropriate.
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