The correct test for leave under Criminal Appeal Rules (NSW) r 4 remains unsettled within the NSWCCA: Basten JA expressed reservations about the Papakosmas formulation and favoured a broader discretionary approach, while N Adams J endorsed the Picken/ARS test requiring the applicant to establish a lost real chance of acquittal. In cases where no objection was taken at trial to jury directions, it will usually be a precondition to a grant of leave that the omitted direction be expressly formulated. The distinction between the mental element for sexual intercourse without consent (including absence of reasonable grounds for belief in consent under s 61HA) and indecent assault (knowledge or recklessness) is valid in law but may have limited practical significance where proof of lack of reasonable grounds provides an evidential basis for inferring actual knowledge or recklessness.
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