Director of Public Prosecutions Reference No 1 of 2002

This matter came before the Supreme Court of the Northern Territory as a reference from the Director of Public Prosecutions concerning the interpretation of section 192(3) of the Criminal Code (NT), which deals with the offence of rape. The reference sought to clarify specific aspects of the mental element required for a conviction under this provision.

The court was required to determine whether the offence under section 192(3) necessitates proof that the accused intentionally engaged in sexual intercourse without consent, or if it is sufficient to prove an intentional act of penetration where consent is absent. A further question concerned whether the defence of honest and reasonable mistake, as potentially provided by section 32 of the Criminal Code, has any relevance to charges of rape under section 192(3).

The court reasoned that the offence of sexual intercourse without consent requires proof that the accused intended to engage in sexual intercourse without the consent of the other party. It was considered unrealistic to separate the intention to penetrate from the intention to do so without consent. The court noted that while a defence of honest and reasonable mistake might rarely be available in rape cases, this did not assist the Crown in the present reference. Ultimately, both questions posed by the Director of Public Prosecutions were answered in the affirmative.