R. v. W.H.A.

Parties

Procedural Posture

Criminal — Sexual Assault / Trial — Pre‑closing Jury Instruction Decision (air of Reality Application)

Legal Issues

1. 1 Whether there was an air of reality to the defence of honest but mistaken belief in consent such that it must be put to the jury
2. 2 Whether non‑testifying accused can raise the defence from Crown or complainant evidence alone
3. 3 Whether prior conduct or silence can amount to affirmative communication of consent for mens rea purposes

Ratio Decidendi

There was no air of reality to the defence of honest but mistaken belief in consent because the evidence did not reasonably support an inference that the accused honestly believed the complainant had affirmatively communicated consent at the time of either the afternoon groping or the later sexual intercourse; prior non‑proximate conduct, silence or ambiguous actions were insufficient to prove an affirmative communication of consent, therefore the judge properly refused to instruct the jury on that defence.

Court Disposition

Application to have the defence of honest but mistaken belief in consent put to the jury denied.

Orders

• Refused to instruct the jury on the defence of honest but mistaken belief in consent
• Proceed to trial without that instruction