Under s 348 of the Criminal Code (Qld), 'consent' to sexual intercourse requires both a subjective state of mind (willingness) and the communication or 'giving' of that consent. For s 24 to be left to the jury in a rape case where the accused does not give evidence, there must be evidence capable of supporting an inference that the accused believed both that the complainant was willing and that consent had been communicated — inference must not be confused with speculation. An absence of objection to unwelcome sexual overtures does not constitute the giving of consent to sexual intercourse, and such overtures do not by the lapse of time metamorphose into consent.
The full text is available to signed-in members, including the 22 later cases that cite this judgment.
10 of the 22 citing cases carry a classified treatment. How each court treated it is available to signed-in members.