Evans v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mrs. Tilmouth, represented by Mr. T. Game, sought leave to appeal against a conviction for attempted rape. The respondent, the Queen, was represented by the Solicitor-General for South Australia, Mr. J. J. Doyle, and Ms. A. M. Vanstone.

The central legal issue before the Court concerned the mental element of attempted rape under South Australian law. Specifically, the applicant argued that the trial judge's directions to the jury regarding the mental element of the attempt were erroneous. The applicant contended that the judge wrongly included recklessness as a component of the mental element for attempted rape, submitting that general legal principles do not support this. Alternatively, the applicant argued that, particularly in the context of an attempt, a judge must specifically direct the jury to the requirement of foresight.

The applicant's submissions were grounded in the interpretation of the *Criminal Law Consolidation Act* of South Australia, which defines rape under section 48. This section outlines two mental states for rape: knowing the person does not consent, or being recklessly indifferent as to whether the person consents. The applicant's case focused on the application of these principles to an attempt to commit rape, as defined by section 270a(1) of the Act, which provides that an attempt to commit an offence is itself an offence. The applicant's core argument was that the trial judge's charge, by including recklessness in relation to the attempt, failed to adequately direct the jury on the necessary mens rea for attempted rape.