BSJ v WA

[2023] WASCA 5

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sexual offences
3. › Defences
4. › Mistake of fact as to consent
5. › Whether trial judge erred in failing to leave s 24 defence with jury
6. › Whether complainant's evidence alone provided sufficient evidential basis
7. › Whether lack of physical resistance or verbal objection could ground reasonable belief in consent
8. › Criminal Code (WA), ss 24, 319(2)(b), 323, 325
1. Criminal Law
2. › Sexual offences
3. › Consent
4. › Meaning of consent freely and voluntarily given
5. › Distinction between consent and mere lack of physical resistance or verbal objection
6. › Criminal Code (WA), ss 319(2)(a), 319(2)(b)
1. Criminal Law
2. › Appeal against conviction
3. › Evidential basis for defence
4. › Whether accused's evidence inconsistent with defence precludes defence being left with jury
5. › Application of R v Baden-Clay to mistake of fact defence
6. › Whether complainant's evidence can provide evidential foundation despite accused's inconsistent account

Quick Take

In WA, a complainant's evidence may provide an evidential basis for honest mistaken belief as to consent even where the accused's own evidence is inconsistent, but mere lack of physical resistance or verbal objection will not, without more, satisfy the reasonableness requirement of s 24, particularly where contextual factors are inconsistent with any expectation of consensual sexual activity.