A jury direction on recklessness under s 61HA(3)(b) of the Crimes Act 1900 (NSW) that the accused 'may have realised' there was a possibility of non-consent is erroneous; the direction must require proof that the accused in fact realised or was aware of that possibility. Similarly, a direction under s 61HA(3)(c) must focus on whether the accused had no reasonable grounds for belief in consent, not whether there were no reasonable grounds in the abstract. Text messages about meeting a person socially do not disclose or imply sexual experience within s 293(3) of the Criminal Procedure Act 1986 and are not rendered inadmissible by that provision. A party seeking to depart from a binding pre-trial ruling under s 130A must demonstrate a material change in circumstances.
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