Regina v Flannery and Prendergast: 1969

(Supreme Court of Victoria) On the defendant’s trial for rape, the judge directed the jury: ‘It is a defence in a charge of rape if a person honestly believed on reasonable grounds that the girl in fact was a consenting party. That involves three things, gentlemen, an honest belief, that means a real genuine bona fide belief based upon reasonable grounds, that is to say, grounds that commend themselves to reasonable men as being reasonable that the girl in fact was consenting.’
Held: The direction was criticised. Winneke C.J said: ‘ Where there is absence of consent an accused’s belief, albeit mistaken in fact, that the woman was consenting to the act of intercourse necessarily relates to … the element of intention involved in the crime. It is impossible to dissociate that intention from a genuine belief in the mind of the accused, even though mistaken in fact, that such consent existed. The existence of such a belief necessarily negatives an awareness that the woman was not consenting, or a realization that she might not be and a determination to have intercourse with her whether she was consenting or not. It would, accordingly, negative an intention to have intercourse without consent inasmuch as the existence of such a belief would be inconsistent with such an intention:’ but ‘In a case where the evidence at the trial does raise [an issue of honest belief], its relevance is to the ingredient of the crime on which the burden of proof rests on the Crown. … It is apposite to quote a statement cited by Lord Reid in Warner v. Metropolitan Commissioner, [1968] 2 All E.R. 356, at p. 364: ‘The absence of mens rea’ really consists in an honest and reasonable belief entertained by the accused of the existence of facts which, if true, would make the act charged against him innocent”.


Winneke CJ


(1969) VR 31



Cited by:

CitedRegina v Morgan HL 30-Apr-1975
The defendants appealed against their convictions for rape, denying mens rea and asserting a belief (even if mistaken) that the victim had consented.
Held: For a defence of mistake to succeed, the mistake must have been honestly made and need . .
Lists of cited by and citing cases may be incomplete.


Updated: 17 May 2022; Ref: scu.258681