Pickett v The State of Western Australia - [2025] WASCA 109

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PICKETT -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 109
CORAM:   THOMSON P
MAZZA JA
HALL JA

HEARD:   23 JUNE 2025
DELIVERED          :   18 JULY 2025
FILE NO/S:   CACR 85 of 2024
BETWEEN:   ROGER SHANE PICKETT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   ASTILL DCJ
File Number            :   IND 2364 of 2021

Catchwords:

Criminal law - Appeal against conviction - Sexual offences - Appellant convicted after trial with jury of five counts of sexual penetration without consent against former wife - Where appellant admitted sexual penetrations had occurred - Where consent in issue - Section 24 Criminal Code (WA) - Where trial judge left honest and reasonable, but mistaken, belief to jury in respect of counts 1 and 7 - Where trial judge declined to leave honest and reasonable, but mistaken, belief to jury in respect of counts 2, 3 and 4 - Whether trial judge erred in law by declining to leave mistake to jury in respect of counts 2, 3 and 4 - Whether miscarriage of justice occasioned by trial judge declining to leave mistake to jury in respect of counts 2, 3 and 4 - Whether trial judge declining to leave mistake to jury unfairly affected jury's consideration of counts 1 and 7 - Whether jury's consideration of counts 1 and 7 unfairly affected by trial judge declining to leave mistake in respect of counts 2, 3 and 4

Legislation:

Criminal Code (WA), s 24, s 326

Result:

Leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	J Gullaci SC & R Napper
Respondent	:	L M Fox SC

Solicitors:

Appellant	:	Aboriginal Legal Service (WA)
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Braithwaite v The Queen (Unreported, CCA SCt of WA, Library No 950511, 25 September 1995)
BSJ v The State of Western Australia [2023] WASCA 5
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
GJ Coles & Coy Ltd v Goldsworthy [1985] WAR 183
Higgins v The State of Western Australia [2016] WASCA 142; (2016) 263 A Crim R 474
McNally v The State of Western Australia [2020] WASCA 126
R v Cutts [2005] QCA 306
R v CV [2004] QCA 411
WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22

JUDGMENT OF THE COURT

This is an appeal against conviction.
The appellant was tried before Astill DCJ and a jury in the District Court on an indictment which alleged seven counts of sexual penetration of his former wife, without her consent, while in a family relationship with her, contrary to s 326 of the Criminal Code (WA) (the Code). The various forms of sexual penetration were all alleged to have occurred on 5 July 2020. At the time of the alleged offences, the appellant and the complainant were married, but separated. The alleged offences were said to have occurred in the former matrimonial home.
On 9 February 2024, the appellant was convicted of counts 1, 2, 3, 4 and 7. Earlier in the trial, the trial judge entered verdicts of not guilty in relation to counts 5 and 6 under s 108 of the Criminal Procedure Act 2004 (WA). His Honour found that the appellant had no case to answer in respect of these counts, as the complainant gave no evidence as to the relevant acts of sexual penetration.[1]
[1] ts 348 - 350.
Defence counsel at trial submitted that the 'defence' of honest and reasonable, but mistaken, belief of fact, under s 24 of the Code, should be left to the jury in respect of counts 1, 2, 3, 4 and 7.[2] Counsel for the State submitted that there was no evidential basis for the defence to be left to the jury. His Honour ruled that there was an evidential basis to leave a s 24 defence to the jury in respect of counts 1 and 7, but not counts 2, 3 and 4.[3]
[2] It is convenient to describe s 24 of the Code as a 'defence'. However, it is, in truth, a ground of exculpation. See CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 [8] (Gleeson CJ, Gummow, Crennan & Kiefel JJ).
[3] ts 402.
The appellant relies on two grounds of appeal, which, in essence, allege that the trial judge erred, or that a miscarriage of justice was occasioned, by declining to leave a s 24 defence in respect of counts 2, 3 and 4. The appellant contends that the s 24 defence should have been left to the jury on counts 2, 3 and 4. He also contends that this failure 'unfairly affected the jury's consideration of charges 1 and 7'.
The appellant submits that this appeal raises a question of principle about what happens when a jury disbelieves the evidence of an accused on the question of consent. Where that occurs, does that mean that the accused's evidence should be wholly put to one side in determining whether the accused has discharged the evidential burden of raising mistake for the consideration of the jury?
This question was identified and discussed by Mitchell and Vaughan JJA in BSJ v The State of Western Australia.[4] Their Honours referred to a perceived difference in approach between the way in which McLure P decided the issue in Higgins v The State of Western Australia,[5] and the reasoning in two Queensland decisions, namely R v CV[6] and R v Cutts.[7] In the view of McLure P in Higgins, at least in that particular case, the evidence of the accused has to be put to one side in assessing whether the accused has satisfied the evidentiary burden of raising mistake.[8] The Queensland cases, however, considered that the determination of whether a s 24 defence should be left to the jury must be considered in light of all the evidence, including the evidence of the accused which was rejected by the jury.[9]
[4] BSJ v The State of Western Australia [2023] WASCA 5 [58] ‑ [63].
[5] Higgins v The State of Western Australia [2016] WASCA 142; (2016) 263 A Crim R 474 [27] ‑ [28].
[6] R v CV [2004] QCA 411 [1], [4], [39].
[7] R v Cutts [2005] QCA 306 [4], [48], [74] ‑ [75].
[8] Higgins [27].
[9] CV [2], [39]; Cutts [41], [75].
The significance of the difference between these two approaches, if it truly exists as a matter of principle, is this. On McLure P's approach, the jury disregard their rejection of the accused's evidence in considering whether the remaining evidence may support an inference as to the honesty and reasonableness of the belief of the accused at the time of the commission of the offences. Arguably, this may advantage the accused, as no negative inference may be drawn about the accused's state of mind, and the honesty or otherwise of the accused's belief, based upon the evidence of the accused. This approach is therefore potentially more favourable to the accused.
In our view, properly understood, this question of principle does not exist. In any event, it does not arise on the facts of this case. However, we will make some observations about this issue at the conclusion of these reasons.

Factual matters

The appellant and the complainant had been married since 2012 and together since 2002. They separated in January 2020. The incident in question occurred about six months after the separation, on 5 July 2020. There were three children of the marriage, who were born in 2003, 2005 and 2009. The appellant moved out of the shared family home in February 2020, and was living elsewhere at the time of the incident.
Since the separation, there had been a single incident of consensual sexual intercourse between the appellant and the complainant, which occurred in or about April 2020. This had been initiated by the complainant and occurred in a car at Kwinana Beach, during which the appellant and the complainant engaged in consensual oral and vaginal sex (the Kwinana Beach incident). The complainant explained that she had wanted this episode to occur away from the house, as she did not wish it to feel like she and the appellant were going to reconcile.[10]
[10] ts 161, 190 ‑ 192, 294 ‑ 295.
On 5 July 2020, the appellant had arranged to return to the former family home to pick up the three children and take them on a holiday to Geraldton. When he arrived at the family home, he went to the master bedroom, where the complainant was showering in the ensuite. There were different versions of what occurred at this point.
On the complainant's evidence, she was in the shower washing her face, which was covered in soap. When she opened her eyes, she saw the appellant standing in the bedroom, naked. She swore at him to 'get the fuck out of there', as she did not want him in the bedroom. She said that the appellant then moved closer and sat on the floor next to the shower. The glass door to the shower was closed. The appellant said, 'You're the only person I've ever known'. The complainant replied that she could not help him. The appellant then opened the glass door and entered the shower recess. He started to touch the complainant's body, and she told him to stop. The complainant said that she was screaming and shouting when the touching started, and repeating the words, 'Get the fuck out of here. I don't want you here'. However, she stopped protesting because the appellant was not listening.[11]
[11] ts 173 ‑ 175.
The complainant testified that the appellant began touching her breasts, but then moved his hands to touch her genitals. The complainant said that she started crying, but that the appellant could not see her crying because she was facing away from him. The appellant continued to touch her, and, while she was facing the wall, he inserted his finger into her vagina. The complainant could not remember if the appellant said anything, and she could not remember if she said anything, when this happened.[12]
[12] ts 175, 208 ‑ 209.
This incident formed the basis for count 1, that the appellant sexually penetrated the complainant without her consent by penetrating her vagina with his fingers.
The appellant's evidence about this incident was in vastly different terms. He testified that he called the complainant by telephone earlier that day, before arriving at the family home. The complainant was in the shower when the appellant arrived. There was a latent suggestion that her being in the shower was an invitation to the appellant to join, as they had often showered together in the past. When the appellant came into the master bedroom, he said he initially tried to get into the shower, but that the complainant asked him not to, so he stopped. The appellant said they then had a conversation, and afterwards the complainant moved back from the shower door, as he motioned to her that he would come in. They ended up sitting on the floor of the shower recess, having a discussion about some of their marital issues. The appellant said that he began 'massaging' the complainant, and that she initiated and consensually performed oral sex on him. In that context, he said that he then digitally penetrated her.[13]
[13] ts 301 ‑ 305.
The conduct which followed formed the basis for counts 2, 3 and 4. Counts 2 and 4 are charges of sexual penetration of the complainant's vagina by the appellant, with his penis. Count 3 is a charge of sexual penetration of the complainant by the appellant, by engaging in cunnilingus.
Once again, there were substantial differences between the appellant's and the complainant's accounts of what occurred.
The complainant testified that, after the commission of count 1, the appellant grabbed her by the wrists while she was still in the shower, and pulled her up with a great deal of force. She said that it felt like the appellant was going to pull her hands 'off the bones'. The complainant said that the appellant then turned off the shower, opened the door to go out and forcibly moved the complainant into the master bedroom. The complainant said that the appellant then pushed her from behind onto the bed so that she was lying on her stomach, and he landed on top of her. The complainant said that the appellant then penetrated her vagina from behind with his penis (count 2). After this occurred, he 'flicked [her] over' onto her back and straddled her, looking towards her feet. He then bent over and licked her clitoris (count 3). The appellant then turned round and penetrated her vagina with his penis again, while she was still on her back (count 4).[14]
[14] ts 175 ‑ 178.
The complainant testified that she indicated to the appellant that she did not consent by shaking her head. She also said things like, 'Don't' and, 'Just please don't'. The complainant could not say precisely when during this episode she did these things, but said that it was throughout the whole incident.[15] The complainant also stated that she continued to cry softly throughout the commission of these offences.
[15] ts 176.
On the other hand, the appellant gave evidence that the two of them had engaged in consensual oral sex and 'massage' in the shower, and that he had suggested that they stop. He said that he went and got two throw rugs or blankets, and a towel, and spread these on the bed.[16] The appellant then testified to the effect that he and the complainant engaged in mutually pleasurable consensual sexual intercourse,[17] essentially as a continuation of what they had engaged in in the shower.
[16] ts 305, 307.
[17] ts 308 ‑ 311.
Afterwards, the appellant left the complainant in the master bedroom for a period of about half an hour, possible a little longer. This was to assist the children to get ready to go on the holiday. He then returned to the bedroom, where the complainant had remained. What then occurred is the subject of count 7, which is a charge that the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his penis. Again, the appellant and the complainant gave substantially different accounts of what occurred.
The complainant testified that she was sitting, clothed, on the end of the bed when the appellant came back into the master bedroom. After some discussion, he picked her up, pushed her back on the bed, and moved her underwear to one side. He then penetrated her vagina with his penis for a short period of time, before ejaculating onto a towel. The complainant did not say anything at the time. She said that she was in shock.[18] She did not consent to this act of sexual intercourse.
[18] ts 179 ‑ 182.
The appellant gave evidence that the complainant had come out of the bedroom to have lunch with him, and they returned to the bedroom together. They lay down on the bed, and they talked and embraced. The appellant testified that the complainant began rubbing him with her leg. He said that he pulled off her underwear and she pulled up her dress and tucked it into her bra. He then penetrated her vagina with his penis while she was on her back and he was on top of her. On the appellant's version, the penetration was entirely consensual.[19] He said that the dress that the complainant was wearing was one of the appellant's favourite dresses of hers, and that the complainant was also wearing underwear worn on their wedding day.[20]
[19] ts 317 ‑ 318.
[20] ts 319.

The issues at trial

At the conclusion of defence counsel's opening address, he tendered a document which contained a number of admissions under s 32 of the Evidence Act 1906 (WA), including that the appellant admitted the acts of sexual penetration the subject of counts 1, 2, 3, 4 and 7 occurred (but not counts 5 and 6).[21]
[21] Exhibit 1.
As mentioned, later in the trial, the trial judge entered verdicts of not guilty in respect of counts 5 and 6. Accordingly, the jury were required to deliver verdicts only on counts 1, 2, 3, 4 and 7.
In respect of all of these counts, the jury were required to decide whether the State had established, beyond reasonable doubt, that the act of sexual penetration the subject of each count had occurred without the complainant's consent.
As to counts 1 and 7, and as directed by the trial judge, if the jury were satisfied that the acts of sexual penetration occurred without consent, they were further required to consider whether the State had proved, beyond reasonable doubt, that the appellant did not have an honest and reasonable, but mistaken, belief that the complainant had consented, within the meaning of s 24 of the Code.

The trial judge's decision as to the applicability of s 24 of the Code

At the conclusion of the defence case, and in the absence of the jury, defence counsel submitted that a s 24 defence should be left to the jury in respect of all of the live counts. In the course of his oral submissions, and in response to comments made by the trial judge, defence counsel said that he would not 'push' his submission any further in respect of counts 2, 3 and 4.[22]
[22] ts 397.
The prosecutor submitted that a s 24 defence should not be left to the jury on any count.
His Honour did not give detailed reasons for ruling that a s 24 defence would be left to the jury only on counts 1 and 7, and not on counts 2, 3 and 4. At the conclusion of counsel's oral submissions, his Honour said:[23]
So my inclination, subject to hearing anything further, is that I will leave section 24 for count 1 and count 7, not for counts 2, 3 and 4. I'll give some careful thought as to how I craft the direction in relation to it, as to why there is a distinction between the two. But it seems to be simply as a consequence of [the] passage of time, and that the acts of what the State says in relation to counts 2, 3 and 4 could not leave anyone with a reasonable belief, if they've reached that point.
[23] ts 402.

The trial judge's directions to the jury

In directing the jury, the trial judge did not leave the question of whether there was honest and reasonable, but mistaken, belief of fact to the jury in relation to counts 2, 3 and 4. The trial judge relevantly directed the jury in the following terms:[24]
So to recap, the elements of the offence are, first, the identity, was it [the appellant]? Second, did [the appellant] sexually penetrate [the complainant] in the way that the State has alleged. And third, did [the appellant] do it without [the complainant's] consent? If you have a reasonable doubt in relation to any of those elements you must find [the appellant] not guilty of that charge that you are considering and that you hold a doubt in relation to.
All right. So from there, if you are satisfied beyond reasonable doubt of all three of those elements, before you find him guilty, and this applies in relation to charges 1 and 7 specifically, then there is an additional matter that you must consider. And that is, you need to consider a defence which the State must disprove, and that defence is referred to as an honest and reasonable mistake of fact. And as I said, this direction that I'm about to give you applies only to your considerations of count 1 [and] 7.
And it only applies if, in relation to counts 1 and 7, you have been satisfied beyond reasonable doubt in relation to count 1 and/or 7 that [the appellant] sexually penetrated [the complainant] without her consent. You do not need to consider this in relation to counts 2, 3 and 4.
[24] ts 449 - 450.
Subsequently, the trial judge explained the reason why the operation of s 24 did not need to be considered in relation to counts 2, 3 and 4:[25]
So in light of that special direction I've given you about [the appellant's] evidence, what that means is in relation to counts 2, 3 and 4 you would have to have rejected his evidence because, on his evidence as it related to those counts, [the complainant] was visibly consenting to what was taking place. That's the evidence that he has given. You'd have to be satisfied it did not cause any doubt about [the complainant's] evidence on these counts.
So to come to a conclusion that she was not consenting you would have had to have accepted [the complainant's] evidence on those counts. And if you had accepted that evidence then there would be no basis in relation to counts 2, 3 and 4 that [the appellant] held an honest or reasonable mistaken belief that [she] was consenting. And so that is why the issue does not arise with counts 2, 3 and 4. Of course, the question of whether there was a mistake with respect to counts 1 and 7, if there was a mistake, if it was honest or if it was reasonable and, indeed, whether [the complainant] was consenting or not consenting with respect to counts 1 and 7, they are all questions for you to consider. But that is why that only applies in relation to counts 1 and 7.
[25] ts 452 ‑ 453.

Applications for extension of time and for leave to appeal

The appellant requires an extension of time within which to appeal. We would grant this extension of time, given that the circumstances disclose that his original counsel, who was initially assisting him in the appeal, was appointed to the position of a magistrate, and was unavailable to continue with the assistance in a timely fashion.
The appellant also requires leave to appeal. We would grant that leave in respect of both grounds of appeal, upon the basis that the matters raised by the appellant are reasonably arguable.

Grounds of appeal

The appellant has appealed on two grounds.
The first ground alleges that the trial judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned, by declining to direct the jury to consider whether the prosecution had proved that the appellant did not do the acts constituting the offences charged under an honest and reasonable, but mistaken, belief that the complainant was consenting to those acts in relation to counts 2, 3 and 4.
The second ground is in the same terms as the first ground, but additionally alleges that if the first ground is established, this unfairly affected the jury's consideration of counts 1 and 7.
In the appellant's case, the submissions explain that the reason for ground 2 is that, if an error of law or a miscarriage of justice is established on the basis of ground 1, this would affect all convictions and a retrial should be ordered on all counts where convictions were recorded, ie, including on count 1 and count 7.[26]
[26] Appellant's submissions, par 30.

Appellant's submissions

The starting point for the appellant's argument, at least in his written submissions, is that counts 2, 3 and 4 were effectively one continuing episode, and that episode was discrete from the subject matter of count 1 and also count 7.[27] The appellant contends that if there was a basis for the jury to consider mistake on count 2, that would have flowed onto counts 3 and 4, given the proximity and interrelationship between those acts of sexual penetration.
[27] Appellant's submissions, par 64(a) ‑ (b).
The next step in the appellant's argument is that a jury making a finding on counts 2, 3 and 4 that the complainant did not, in fact, consent did not require a rejection of the entirety of the appellant's evidence on this issue. For example, the appellant submits that the appellant may have had an honest and reasonable, but mistaken, belief that the complainant was consenting, if the jury reached the following conclusions:[28]
(a)That there was uncertainty about the exact circumstances in which the appellant and the complainant got from the shower to the bed. In particular, in her evidence, the complainant was uncertain as to whether there were throw rugs or blankets and a towel placed upon the bed after she and the appellant got out of the shower and moved to the bedroom.[29]
(b)That the complainant's evidence that she shook her head and said 'no' during the conduct which was the subject of counts 2, 3 and 4 should be rejected.
(c)That the appellant's evidence that the complainant was actively consenting should be rejected.
(d)That the sexual penetrations occurred in circumstances where the complainant was passive.
[28] Appellant's submissions, par 64(c) ‑ (i).
[29] ts 211.
In these circumstances, the appellant says that it would have been open to the jury to consider the operation of a s 24 defence in relation to counts 2, 3 and 4, and, that if there was a relevant mistake in relation to these counts, this would have a consequential impact in respect of counts 1 and 7. The consequential impact would be twofold. First, the direction that a mistake under s 24 could not be considered in relation to counts 2, 3 and 4 would have created confusion by reason of the mental gymnastics necessarily involved with that direction. Secondly, the direction would have unfairly undermined the cogency to be attributed to the evidence of the appellant in relation to counts 1 and 7 in any event.

Respondent's submissions

At the hearing of the appeal, senior counsel for the respondent submitted that a defence under s 24 of the Code ought not to have been left to the jury at all because of the diametrically opposed versions of events given by the complainant and the appellant.[30]
[30] Appeal ts 42.
Senior counsel for the respondent emphasised that, on the appellant's account, he was 'not mistaken about anything'.[31]
[31] Appeal ts 44.
Senior counsel for the respondent contended that acceptance by the jury of the use of force in respect of counts 2, 3 and 4 would negate the existence of any honest and reasonable belief that the complainant was consenting.
Senior counsel for the respondent submitted that a jury, having been satisfied beyond reasonable doubt that the complainant did not consent to the acts the subject of the live counts, could not have arrived at a 'hybrid scenario' which could lead it to have a reasonable doubt that the appellant honestly and reasonably believed that the complainant was consenting to the sexual activity the subject of each charge.

Section 24 of the Code - legal principles

Section 24 of the Code is, relevantly, in these terms:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
In the present case, the s 24 defence is concerned with the appellant's claimed honest and reasonable, but mistaken, belief that the complainant consented to the acts of sexual penetration the subject of the offences. 'Consent', for the purposes of s 326 of the Code, is defined in s 319(2) of the Code, which, relevantly, states:
(a)consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means;
(b)where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act[.]
The circumstances in which a s 24 defence applies have been discussed in a number of cases decided by this court and its predecessor, including GJ Coles & Coy Ltd v Goldsworthy;[32] WCW v The State of Western Australia;[33] Higgins; McNally v The State of Western Australia;[34] and BSJ. Apart from the first‑mentioned case, these cases concern the application of s 24 in respect of sexual offending where the absence of consent is in issue.
[32] GJ Coles & Coy Ltd v Goldsworthy [1985] WAR 183.
[33] WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22.
[34] McNally v The State of Western Australia [2020] WASCA 126.
As stated by Mitchell and Vaughan JJA in BSJ:[35]
The concept of honest and reasonable belief has subjective and objective elements. The belief must be both subjectively honest and objectively reasonable. The subjective element is, ordinarily, peculiarly within the knowledge of the accused. So, ordinarily, the evidentiary foundation for the subjective aspect of mistake (ie the honest belief) is the evidence of the accused. The objective element must be capable of being measured against the evidence by the trier of fact. The objective element allows the trier of fact to have regard, if relevant, to such matters over which an accused has no control, including age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. (footnotes omitted)
[35] BSJ [50].
In the context of an offence of sexual penetration without consent, the s 24 defence will not arise for determination unless there is, in fact, no consent.[36] Where there is evidence fit for the s 24 defence to be left to the jury, the burden of negativing it rests on the prosecution. In such a case, the prosecution must prove beyond reasonable doubt that the accused did not honestly and reasonably believe that the complainant consented to the sexual penetration. If the jury have a reasonable doubt that the accused honestly and reasonably believed that the complainant consented to the sexual penetration, they must acquit.
[36] WCW [7]; BSJ [52].
The evidential burden to be satisfied before a trial judge must leave to the jury a s 24 defence was stated by McLure P in Higgins:[37]
The relevant question is whether there is evidence which, taken at its highest in favour of the appellant, could as a matter of law, lead a reasonable trier of fact to have a reasonable doubt that the appellant honestly believed on reasonable grounds that the complainant consented to the sexual activity the subject of the charge: Braysich v The Queen (2011) 243 CLR 434 [17], [36].
As the defence of mistake only arises for consideration if the jury is satisfied beyond reasonable doubt that the complainant did not consent, the evidentiary burden will only be satisfied if there is a version of the facts which leaves open, as a reasonable possibility, that the appellant could honestly and reasonably but erroneously believe that the complainant consented: Narkle v The State of Western Australia [2011] WASCA 160 [3].
In short, there must be evidence from which it was open to the jury to infer that the appellant honestly believed that the relevant complainant had consented to the conduct the subject of the charge and that there were reasonable grounds for his belief.
[37] Higgins [24] - [26]. See also, WCW [8] ‑ [9] and BSJ [55] - [57].
The requirement that a mistaken belief must be honest in s 24 of the Code means no more than that it must be held in fact.[38] Importantly, the mistaken belief must be positively held by the accused. It is not enough to show that a reasonable person in the position of an accused might have held the requisite belief.[39]
[38] GJ Coles & Coy Ltd (187) (Burt CJ).
[39] BSJ [58].
Further, s 24 requires more than a reasonable doubt as to an honest, but mistaken, belief. As the text of the section makes clear, the mistaken belief must be both honest and reasonable.[40] Whether there is evidence sufficient for a s 24 defence to be left to a jury will depend upon the facts and circumstances of the particular case. It may be that, in cases involving allegations of sexual penetration without consent, there is simply no room for the defence of honest and reasonable, but mistaken, belief to arise.[41]
[40] BSJ [78].
[41] See, for example, Braithwaite v The Queen (Unreported, CCA SCt of WA, Library No 950511, 25 September 1995) and McNally.

Disposition

In our view, the arguments advanced by the appellant should not be accepted.
At the outset, we observe that the evidence given by the complainant, on the one hand, and the appellant, on the other, as to the events the subject of counts 1, 2, 3, 4 and 7, was diametrically opposed. The effect of the complainant's evidence was that at no time did she give free and voluntary consent to engaging in the acts of sexual penetration. Her lack of consent was plainly evident when the appellant initially entered the bedroom, and then the shower recess. She told him to '[g]et the fuck out of here', and when the appellant entered the shower recess and commenced touching her, she cried, shouted, and screamed at him. On the complainant's evidence, both in examination‑in‑chief and in cross‑examination, she was forcibly dragged by her wrists from the shower into the bedroom, where the acts of sexual penetration the subject of counts 2, 3 and 4 soon after took place. The complainant testified that she shook her head and said throughout the incident things such as, 'Don't' and, 'Just please don't'. There is no evidence that the appellant was incapable of hearing, or did not hear, the complainant telling him to stop. On our reading of the trial transcript, the complainant did not accept propositions that she did, in fact, consent. Nor was she equivocal about her lack of consent.
The appellant's version of events, summarised at [16] and [21] ‑ [22] above, is starkly different to that of the complainant in respect of counts 1, 2, 3 and 4. On the appellant's version, the complainant, in essence, initiated, and participated in, mutually pleasurable sexual activity in the shower and in the bedroom. His testimony is not, in any way, equivocal on the question of consent. On the appellant's version, the complainant was unambiguously consenting, if not by express words, then by acts that were consistent only with consent.
As to count 7, this offence allegedly occurred about half an hour after counts 1, 2, 3 and 4. By then, the complainant had dressed. She was wearing a black dress and underwear. On the complainant's account, she said she did not say anything or physically resist at the time. She explained that she was in shock. She said that she did not consent to the appellant engaging in the act of penile/vaginal penetration. She denied initiating any sexual activity at this time, contrary to the appellant's account of events.
The appellant said that he entered the bedroom and saw the complainant wearing a black dress that she knew to be a favourite of his, and that underneath she was wearing underwear from their wedding day. In effect, the appellant testified that the complainant initiated the sexual activity by rubbing him with her leg. The implication of this evidence is that this conduct, and the complainant's attire, signalled the complainant's consent to the appellant. While the appellant, on a view of the evidence most favourable to him, may have had a subjective belief that the complainant was consenting in respect of count 7, it cannot be said to have been a reasonable belief, having regard to what had occurred earlier in relation to counts 1, 2, 3 and 4. Furthermore, the complainant's conduct, her attire, and apparent passivity, in the context of what had already occurred, could not reasonably be taken to be a free and voluntary consent to engaging in the sexual activity the subject of count 7.
The appellant's case, both at the trial and on appeal, emphasised the Kwinana Beach incident as one of the bases for leaving a s 24 defence. In our opinion, this incident could not, either by itself or in combination with the events of 5 July 2020, provide an evidential basis for a s 24 defence. This is so for three reasons. First, there is a considerable time period between the events of roughly two to three months. Secondly, the Kwinana Beach incident occurred away from the former matrimonial home, in a car, because the complainant did not want to engage in sexual activity at the former matrimonial home, nor did she want the appellant to feel like they were going to reconcile. Thirdly, the Kwinana Beach incident was unequivocally consensual. This stands in stark contrast to what occurred on 5 July 2020 at the house. On the complainant's account, the appellant was not invited to the house for the purpose of engaging in sexual activity. Nor did the complainant, on her version of events, invite the appellant to engage in sexual activity with her once he had arrived at the house.
Of course, a jury is not bound to find that everything a witness has said is true, and, in a particular case, the truth may lie somewhere between the competing versions given by witnesses. However, it is difficult to see how, in this case, that option was reasonably open, given the very different versions of events given by the complainant and the appellant. In any event, the process whereby a jury comes to its own view of the facts must be a rational process, and not one based on guesswork or speculation. So, too, the process by which an appellate court decides whether there was a sufficient evidential basis to leave a defence under s 24 of the Code.
In our opinion, the appellant was fortunate that the trial judge left to the jury a s 24 defence in respect of counts 1 and 7. With respect to the trial judge, there was no proper evidential basis that the appellant held an honest and reasonable belief that the complainant consented to the acts of sexual penetration the subject of counts 1, 2, 3, 4 and 7. The only possible basis lay in the appellant's evidence, but the jury would necessarily have to reject that evidence to conclude that there was no consent in fact. There was no scope for honest and reasonable mistake based on the complainant's evidence.
However, even if a s 24 defence was properly left in respect of counts 1 and 7, his Honour did not make any error by refusing to put the defence in respect of counts 2, 3 and 4 to the jury. In our view, the arguments advanced by the appellant in support of this position are flawed and should not be accepted.
The first flaw is to regard the episode which is the subject matter of counts 2, 3 and 4 as being discrete from the events which are the basis for the charge in count 1. As the recitation of the facts above demonstrates, on both versions of events, the episode in the shower forming count 1 leads into the events which occurred immediately afterwards in the master bedroom.
On the complainant's evidence, she was moved forcibly out of the shower and into the bedroom by the appellant, where the assaults continued. On the appellant's version, the consensual sexual activity in the shower was continued in the bedroom.
In these circumstances, it seems to us entirely fanciful to suggest that there may have been non‑consensual digital penetration in the shower, for the purposes of count 1, where there was no relevant mistake, immediately followed by the appellant forming a mistaken belief about the complainant's consent in the bedroom, even though consent was still being withheld. In other words, it would be an extraordinary thing for the jury to conclude that the complainant had made it clear that she did not give consent to the digital penetration in the shower, but for the jury to then also conclude that, while she was still, in fact, withholding consent to what followed in the bedroom, the appellant could be honestly and reasonably mistaken about whether the complainant had ceased to withhold consent and had instead consented to the acts which constituted counts 2, 3 and 4.
In the circumstances, if there was no relevant mistake operative in respect of count 1, which was the first part of the whole episode (properly regarded), it would be incredible that a relevant mistake developed part way through the episode. There is no evidence which could form the basis for an inference that, while the complainant did not consent to anything that occurred, the appellant may have had grounds to commence believing that she did.
Senior counsel for the appellant suggested that there was indeed evidence which could form a basis for an inference of an honest and reasonable, but mistaken, belief about whether the complainant consented to the sexual activity in the bedroom, even if she did not consent to what occurred in the shower. Specifically, senior counsel referred to the evidence of the throw rugs or the blankets, and the towel, being laid out by the appellant in advance of the sexual activity in the bedroom. He also referred to the prior sexual history of the appellant and the complainant, and to her passivity, or perceived lack of resistance, in what occurred after the events in the shower.
In our view, the difficulty about relying on these matters as a basis for an inference of honest and reasonable, but mistaken, belief about the complainant's consent to what occurred in the bedroom, is that it is necessary to consider how the complainant came to move from the shower to the master bedroom. If force was used by the appellant, as the complainant maintained, this would inevitably negative both consent, and the basis for an honest and reasonable mistake about consent. On the other hand, if the complainant proceeded from the shower to the bedroom willingly, as the appellant claimed, that would provide evidence of consent, and it would be unnecessary to consider whether there was an honest and reasonable mistake about consent.

In other words, there is no rational available pathway of reasoning, between the events in the shower and the bedroom, which includes the complainant being forced by the appellant from the shower to the bedroom, but the appellant forming an honest and reasonable mistake about the complainant's consent to the sexual activities which then occurred in the bedroom. Further, it was not rationally open to accept the complainant's evidence that she was not consenting, but not accept her evidence that force was used. Such an approach could not be supported by the evidence of the complainant, which was unequivocal about the use of force.
In circumstances where there were two diametrically opposed versions of how the complainant came to move from the shower to the bedroom, one which involved the use of force by the appellant, and the other which was based upon the complainant choosing to continue further consensual, and, on the appellant's account, pleasurable, sexual activity in the bedroom, we cannot see how it may be claimed that it was necessary to leave a question of honest and reasonable, but mistaken, belief to the jury in relation to counts 2, 3 and 4. There is no rational version of the facts that could be adopted by a jury that means that the complainant did not consent to further sexual activity, but that the appellant may have had an honest and reasonable mistake about this. If force was used to compel the complainant to go from the shower to the bathroom, the appellant cannot honestly, let alone reasonably, have believed that any sexual activity which then occurred was consensual.
At the hearing of the appeal, senior counsel for the appellant moved away from the written submission that count 1 was based upon a discrete episode in the shower, separate from what occurred in the bedroom immediately afterwards, which formed the basis of counts 2, 3 and 4. Senior counsel for the appellant accepted that there was one continuous event, but argued that if a s 24 defence should have been left to the jury in respect of count 1, it should equally have been left in respect of counts 2, 3 and 4. To not do so, he submitted, would create confusion for the jury.
Ultimately, this submission cannot overcome the difficulty which we have described above. Whether the events in the shower, followed by the events in the bedroom, are regarded as one continuous event, or as discrete parts of one episode, or as two separate episodes, it is difficult to see that any difference arises where the complainant's evidence is that actual force was used by the appellant to move her from the shower to the bedroom, and the appellant's evidence is that she moved willingly.

The approaches in Higgins and the Queensland cases

The view which we have expressed does not depend upon whether a jury disregards the evidence of the appellant on the question of the existence of an honest and reasonable mistake, or whether it considers all relevant evidence on that question. On either approach, there will be an issue about whether the complainant was forced to engage in sexual activity in the bedroom or whether it was consensual, and whether she was forcibly moved from the shower to the bedroom, or whether she willingly chose to go from one place to the other.
In this respect, the case is similar to the Queensland Court of Appeal decision in CV. In that case the offender maintained that the complainant had consented to sexual activity with him. On the other hand, the complainant said that she had been threatened and forced into the sexual activity by the offender. The Queensland Court of Appeal considered that there was no basis upon which a s 24 defence of honest and reasonable mistake should have been left to the jury.[42] That is because the difference between the two versions did not permit a jury to reach a view that the complainant did not consent to the sexual activity, but that the offender had an honest and reasonable basis for considering that she had done so. Such a conclusion was impossible, given the use of force on the complainant's version of events, and the complete lack of ambiguity about the complainant's consenting on the defence case.[43] Further, the trial had been conducted upon the basis that there should be no cross-examination about the appellant's state of mind relevant to mistake.
[42] Section 24 of the Criminal Code (Qld) is expressed in materially identical terms as s 24 of the Code.
[43] CV [40] - [41].
It was argued by the offender in CV that, as the offender's evidence had been rejected by the jury, the case had to be viewed as though the offender had not given evidence.[44] That argument was rejected.[45] The reason why it was rejected was because the offender's evidence assisted in understanding how the forensic choices were framed. In other words, because the offender claimed that the sexual activity was consensual and enjoyable, as opposed to the complainant claiming that it was forced, there was no room for a defence of honest and reasonable mistake. As Jones J said, immediately after finding that all the evidence had to be considered, 'the circumstances left for the jury's consideration resulted in a clear and stark choice to be made on the issue of consent'.[46]
[44] CV [31].
[45] CV [2], [39].
[46] CV [40].
Both the present appeal and CV are cases in which the accused person admits that a sexual act (or acts) occurred, and where the question is whether or not that sexual act was consensual. This is factually distinct from the circumstances considered by the Queensland Court of Appeal in Cutts. In that case, the accused denied that any sexual activity occurred at all.
In Cutts, the complainant was a physically disabled woman with cerebral palsy, who was wheelchair bound, but lived independently. She was sexually assaulted by a taxi driver who had driven her home from a shopping centre. The offender denied any sexual activity had occurred between himself and the complainant. On appeal, the offender relied upon the version of events given by the complainant at trial, about how the sexual activity had occurred (even though he had previously denied that any sexual activity had occurred). This was in an endeavour to advance a claim of a mistake for the purposes of s 24, which he claimed should have been left to the jury. The question on appeal was whether mistake should have been left to the jury, when the offender had denied the occurrence of any sexual activity at all.
McMurdo P considered whether the complainant's evidence raised the reasonable possibility that the offender honestly (but mistakenly) believed that the complainant was consenting to sexual activity forming the basis of two of the counts, where the complainant had seemingly complied with the offender's actions and demands. However, her Honour concluded that there was not a sufficient basis for mistake to have been left to the jury.[47] In reaching that conclusion, McMurdo P referred to the fact that the offender's case at trial was that no sexual acts had occurred between himself and the complainant.
[47] Cutts [19].
Williams JA considered all of the evidence, including the offender's denial that any sexual activity occurred, and said:[48]
By his sworn testimony [the offender] has eschewed the holding of any belief that the complainant was consenting to the acts which the jury have found he committed. The only conclusion open as to [the offenders'] belief, consistent with his sworn testimony, is that he held none to the effect that the complainant was consenting to sexual activity with him.
Consequently, Williams JA held that, 'in the absence of a relevant belief in the [offender] there was nothing for the prosecution to negative',[49] in respect of an honest and reasonable mistake, and therefore that issue did not need to be left to the jury.
[48] Cutts [43], see also [48].
[49] Cutts [47].
A similar approach to McMurdo P was taken by Jerrard JA, except that his Honour considered that there was a basis for mistake to have been left to the jury on the two counts just mentioned. His Honour would have allowed the appeal to this extent.[50] His Honour explained this approach by saying that '[t]he jurors could not avoid considering whether [the offender] had, for reasons of his own, falsely denied conduct which exploited his position of authority and trust as [the complainant's] driver, even though he did not commit any criminal offences by the latter parts of that conduct'.[51]
[50] Cutts [77] ‑ [78].
[51] Cutts [77].
While the reasoning of each of the judges in Cutts differs concerning the significance of the accused's denial at trial of the events forming the basis of the charged offences, when deciding whether or not mistake should have been left to the jury, they each considered all of the evidence, including that of the offender.
Higgins, like Cutts, was a case where the accused advanced a case at trial which denied that the relevant acts occurred at all. It was therefore a situation where the accused 'has eschewed the holding of any belief that the complainant was consenting'. In Higgins, the offender performed multiple 'full body massages' on the complainant, which involved sexual contact, even though the apparent purpose of the massages was therapeutic. The offender gave evidence at trial that there had been no sexual contact, whereas the complainant testified that her breasts and vaginal area had been 'massaged' during a number of incidents. On appeal, the offender argued that the question of a s 24 defence ought to have been left to the jury. The trial judge had refused to give such a direction because the offender had denied the acts in question, and testified that he would never do such an act during his therapeutic massage practice.
In that context, as in Cutts, the question on the appeal concerned whether mistake should have been left to the jury, where the offender at trial had categorically denied doing the relevant acts. In assessing whether mistake should have been left to the jury, McLure P observed, 'It is apparent from the verdicts that the jury positively disbelieved [the offender's] evidence, which must then be put to one side in assessing whether the appellant had satisfied the evidentiary burden of raising mistake'.[52] If the testimony of the offender was excluded from consideration, McLure P concluded that the evidentiary burden to raise mistake had been satisfied in respect of a number of counts, having regard to the evidence of the complainant.
[52] Higgins [27].
Mazza JA also considered that mistake should have been left to the jury on certain counts, but not all of the counts identified by McLure P. Mazza JA had regard to certain aspects of the offender's evidence in reaching this view. These were statements made by the offender to the effect of there being 'no legitimate healing reason for [the offender] to massage a woman's breasts or vaginal area', and that he would never do so.[53] Consequently, in this respect, his Honour took a different approach to McLure P, and considered all of the evidence, including aspects of the appellant's evidence, when determining whether or not mistake should have been left to the jury. This led Mazza JA to conclude that mistake did not arise in relation to certain counts where McLure P considered that it did arise.[54]
[53] Higgins [91] ‑ [92].
[54] Higgins [93] ‑ [95].
The remaining member of the court, Corboy J, did not consider that he needed to decide the question of mistake. However, when emphasising the unusual way in which the prosecution case had been conducted, his Honour expressed a preference for the result reached by McLure P.[55]
[55] Higgins [161] ‑ [165].
The unusualness of the prosecution case derived from an allegation that the complainant had consented to her breasts and vaginal area being massaged by the offender upon a misapprehension that such touching was legitimately necessary to deliver a therapeutic outcome from the massage. If this misapprehension had occurred not as a result of fraud or deception by the offender, true consent may have been absent, but the offender may have proceeded upon the basis of an honest and reasonable mistake that the complainant consented to breast and vaginal touching during the massages.
The difference in the approach between McLure P and Mazza JA in Higgins may well be the product of a particular difficulty recognised by Corboy J, that the State had not 'clearly and fully identified the basis on which it alleged that the complainant had not freely and voluntarily consented to the alleged assaults that were the subject of'[56] the relevant counts. In those circumstances, McLure P's approach may be regarded as precautionary. There may be a number of explanations for the complainant's misapprehension of what was necessary for the purposes of a therapeutic massage. If the jury were to approach the question of honest and reasonable mistake without considering if this was fraudulently induced by the offender, it would be necessary to put anything said by the offender to one side. On the other hand, Mazza JA's approach is orthodox and consistent with the principle adopted by the Queensland Court of Appeal in CV and Cutts, that all of the evidence needs to be considered. In our view, the difference between McLure P and Mazza JA does not reflect a point of principle, as opposed to a difference in how they assessed the facts of the particular case. We say that with greater confidence given that the observation of McLure P is stated in one sentence without particular preceding analysis of any authority.
[56] Higgins [162].
We do not consider that the slight difference in approach between McLure P and Mazza JA in Higginshas any bearing on the present appeal. This is not a case where the appellant had denied that sexual activity occurred at all. As we have said, it is a case factually much closer to CV than Cutts or Higgins. The difficulty for the appellant is that he seeks to rely upon a positive inference of mistake in relation to counts 2, 3 and 4, based upon his own evidence, and no other evidence, where the jury necessarily rejected his evidence by finding that there was in fact no consent, and they had already found that there was no relevant mistake in respect of count 1, the starting point for the episode. Moreover, there was a 'clear and stark choice to be made on the issue of consent',[57] as to the forensic difference between the appellant's version of events, based upon consensual sexual activity, and the complainant's version, that she did not consent. In our view, nothing in CV, Cutts, Higgins or BSJ suggested, let alone required, that mistake needed to be left to the jury in respect of counts 2, 3 or 4 in these circumstances.
[57] CV [40].

Conclusion

For these reasons, we would grant an extension of time within which to appeal, we would grant leave to appeal, but we would dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
18 JULY 2025