McPhillamy v The Queen

The High Court of Australia considered an appeal by McPhillamy against his conviction for the offence of sexual intercourse without consent. The dispute concerned the interpretation and application of the defence of honest and reasonable belief in consent under section 42 of the *Crimes Act 1900* (NSW).

The central legal issue before the High Court was whether the jury, in convicting McPhillamy, had necessarily found that his belief in consent was not honestly held, or alternatively, that if it was honestly held, it was not reasonably held. The Court also had to determine the proper direction to be given to a jury regarding the elements of the defence of honest and reasonable belief in consent.

The High Court held that the jury's verdict of guilty did not necessarily mean that they found the belief in consent was not honestly held. Instead, the jury could have found that while the belief was honestly held, it was not reasonably held. The Court clarified that the defence under section 42 requires the belief in consent to be both honestly and reasonably held. The reasonableness of the belief is to be assessed by reference to the circumstances as the accused honestly believed them to be, and the question is whether a reasonable person in the position of the accused, holding those beliefs, would have believed that the complainant consented. The Court found that the trial judge's directions to the jury on this defence were inadequate.

The High Court allowed the appeal, quashed the conviction, and remitted the matter to the Supreme Court of New South Wales for a retrial.