PGA v The Queen

The appeal concerned the conviction of PGA for the offence of sexual assault. PGA was convicted in the District Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales.

The central legal issue before the Court of Criminal Appeal was whether the trial judge had erred in law by failing to direct the jury on the defence of honest and reasonable mistake of fact in relation to the element of consent. PGA contended that the jury should have been instructed that if they found he honestly and reasonably believed the complainant had consented to the sexual act, he should be acquitted.

The Court of Criminal Appeal, comprising Heydon and Bell JJ, considered the application of the defence of honest and reasonable mistake of fact to sexual assault offences. Their Honours noted that the defence requires an honest and reasonable belief that the circumstances are such that, if they were as believed, the act would not constitute an offence. However, they found that the defence of honest and reasonable mistake of fact is not available in relation to the element of consent in sexual assault cases under the relevant legislation. The Court reasoned that the statutory definition of sexual assault implicitly requires proof of the absence of consent, and a mistake as to consent negates the *mens rea* for the offence, rather than providing a defence in the traditional sense. Therefore, the trial judge was not obliged to direct the jury on this defence.

The appeal was dismissed.