Hemsley v The Queen

The applicant, Hemsley, sought special leave to appeal to the High Court of Australia from a decision of the New South Wales Court of Criminal Appeal. The Court of Criminal Appeal had dismissed Hemsley's appeal against his conviction on one count of sexual intercourse without consent, an offence under section 61D(1) of the New South Wales Crimes Act. The central dispute concerned the interpretation of the word "reckless" as used in section 61D(2) of the Crimes Act, which provides a deeming provision for knowledge of non-consent.

The legal issue before the High Court was the meaning to be attributed to the term "reckless" within the context of section 61D(2) of the Crimes Act. This subsection deems a person to know that the other person does not consent if they are reckless as to whether the other person consents. Consequently, the Court was required to determine the mental element that the Crown must prove concerning an offender's state of mind regarding consent in sexual intercourse without consent offences.

The applicant submitted that this question of law was of general importance to the administration of justice in New South Wales. The facts giving rise to the conviction involved an incident on 23 September 1984, where the applicant was charged with two counts under section 61D, both relating to the same complainant. The Crown's case detailed events at a party where the complainant sought to locate a friend, and in the course of this search, she went to the applicant's premises. The specific legal question revolved around whether the applicant's recklessness as to the complainant's consent satisfied the knowledge requirement for the offence.