Regona v Sperotto and Salvietti: 1970

(Court of Criminal Appeal of New South Wales) The court considered the mental element in the crime of rape: ‘In all crimes at common law a guilty intention is a necessary element and with the crime of rape this intention is to have carnal knowledge of the woman without her consent. In order to convict the accused of the crime of rape and, subject to what is hereinafter said, to establish this intention on his part the Crown must prove beyond reasonable doubt that when the accused had intercourse with the woman either (i) he was aware that she had not consented, or (ii) he realized that she might not be consenting and was determined to have intercourse with her whether she was consenting or not. The intent and the act must both concur to constitute the crime ‘. And
‘Although the fact of the act of intercourse may be admitted by the accused or proved beyond reasonable doubt to the satisfaction of the jury, the accused may negative any intention on his part to have intercourse with the woman regardless of her consent if he holds an honest belief on reasonable grounds in the existence of circumstances which, if true, would make his act of intercourse with the woman an innocent one (Warner v. Metropolitan Police Commissioner, per Lord Reid). This involves these three concepts, firstly, that he in fact held the belief that the woman was consenting to the act of intercourse, secondly, that he was mistaken in that belief and, thirdly, that he can point objectively to circumstances which provided him with reasonable grounds for his mistake.
It then becomes necesary for the Crown as part of the ultimate onus which rests upon it to negative the existence of such belief, and this beyond reasonable doubt. This the Crown may do by reference to all the material adduced at the trial which tends to show that the belief asserted by the accused was not genuinely held by him or that the grounds upon which he relies for the foundation of his belief are, when examined in the light of all the circumstances, not a reasonable basis for the mistake which he claims to have made.’
Herron CJ
[1970] 1 NSWR 502
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 . .

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Updated: 06 May 2021; Ref: scu.258673