For offences of kidnapping under s 86 of the Crimes Act 1900 (NSW), recklessness as to the complainant's lack of consent requires subjective awareness — either a knowing disregard of an appreciated risk of non-consent, or indifference to whether the complainant consents ('willy-nilly'). Inadvertent recklessness (failure to consider consent where it would have been obvious) does not suffice, notwithstanding that it is accepted for sexual assault offences under the Tolmie line of authority. The question remains open as to whether the Tolmie principle itself remains good law for sexual assault offences in light of the majority's reasoning.
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