Director of Public Prosecutions v JSP

The Director of Public Prosecutions appealed to the Court of Criminal Appeal of New South Wales against the acquittal of the respondent, JSP, on charges of sexual assault. The central dispute concerned whether the respondent's belief that the complainant had consented to sexual intercourse was an honest and reasonable mistake, thereby negating the necessary *mens rea* for the offence.

The Court was required to determine the correct legal test for an honest and reasonable mistake of fact in the context of sexual assault charges, specifically whether the mistake regarding consent must be both subjectively honest and objectively reasonable. The appeal also raised questions about the application of this test to the evidence presented at trial.

The Court affirmed that for a mistake of fact to be a defence to a charge of sexual assault, it must be both honestly held and, in the circumstances, reasonably held. The reasonableness of the belief is an objective question for the jury, to be assessed by considering all the evidence. The Court found that the trial judge had erred in directing the jury that an honest belief in consent was sufficient, without adequately instructing them on the requirement of reasonableness.

Consequently, the Court of Criminal Appeal allowed the appeal, quashed the acquittal, and ordered a new trial.