R v Tatola (No. 3) [2023] NSWDC 388

R v Tatola (No. 3) [2023] NSWDC 388

Section 61I of the Crimes Act 1900 (NSW), read in its statutory context and against the ordinary implication of mens rea in criminal offences, does not exclude voluntariness or intention as an element of the offence. The provisions concerning knowledge of lack of consent, recklessness, sexual acts, sexual activity and aggravated sexual assault in company indicate that the offence contemplates a guilty state of mind and does not capture accidental sexual intercourse. Therefore intention is a necessary element of the offence charged in the indictment.

Jurisdiction
Australia
Judgment Date
12 September 2023
Procedural Posture
Criminal / Procedural Ruling on Whether the Act of Sexual Intercourse Under S 61 I of the Crimes Act 1900 (nsw) Must Be an Intentional Act
Outcome
The Court determined that intention is a necessary element of the offence charged in the indictment.
Legal Topics
['sexual Intercourse Without Consent' 'mens Rea' 'intentional Act' 'voluntariness' 'absolute Offence' 'crimes Act 1900 (nsw) S 61 I']
['criminal Law' 'statutory Interpretation'] ['sexual Intercourse Without Consent' 'mens Rea' 'intentional Act' 'voluntariness' 'absolute Offence' 'crimes Act 1900 (nsw) S 61 I']

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Procedural Posture

Criminal / Procedural Ruling on Whether the Act of Sexual Intercourse Under S 61 I of the Crimes Act 1900 (nsw) Must Be an Intentional Act

Legal Issues

  1. 1 ['Whether the act of sexual intercourse described in s 61I of the Crimes Act 1900 (NSW) must be an intentional act.' 'Whether s 61I of the Crimes Act 1900 (NSW) creates an absolute offence containing all elements in the words of the section.' 'Whether the statutory scheme excludes voluntariness or intention as an element of the offending.']

Ratio Decidendi

Section 61I of the Crimes Act 1900 (NSW), read in its statutory context and against the ordinary implication of mens rea in criminal offences, does not exclude voluntariness or intention as an element of the offence. The provisions concerning knowledge of lack of consent, recklessness, sexual acts, sexual activity and aggravated sexual assault in company indicate that the offence contemplates a guilty state of mind and does not capture accidental sexual intercourse. Therefore intention is a necessary element of the offence charged in the indictment.

Court Disposition

The Court determined that intention is a necessary element of the offence charged in the indictment.

Orders

  • ['Intention is a necessary element of the offence, being the charge in the indictment.']